REPORT ON CORPORAL PUNISHMENT AND HUMAN RIGHTS
OF CHILDREN AND ADOLESCENTS

            I.         INTRODUCTION

1.       The Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) sees that the right of children and adolescents to a life free of violence and discrimination poses an urgent challenge within the regional and international human rights protection systems. The enactment of international human rights instruments to protect children’s rights reflects the consensus and recognition that exists in the member states regarding the need to eliminate violence against children and adolescents in the region.

2.       This report, prepared by the office of the Rapporteur on the Rights of the Child,[1] has been prepared in the context of the challenges and progress made during the 20 years since the United Nations General Assembly’s adoption of the Convention on the Rights of the Child.[2] The Commission recognizes the gravity and seriousness of corporal punishment and decided to produce this thematic report in order to recommend, to the member states, specific actions for making comprehensive progress toward protecting the human rights of children and adolescents.

3.                  Citing the Study on Violence against Children,[3] the Commission maintains that “no violence against children is justifiable; all violence against children is preventable.” The Commission acknowledges the initiatives of several American States that have already placed legal bans on the use of corporal punishment as a method of disciplining children and adolescents, both at home and in society as a whole, and also those States that are drafting legislation in that direction. The Commission also notes that although most of the member states have banned corporal punishment as a sanction for criminal offenses, it remains in the penal codes as a disciplinary method of many countries. In addition, most of the member states do not have laws or explicit statutory language prohibiting corporal punishment at home or at school. The IACHR therefore calls on the OAS member States to act immediately on the problem of corporal punishment by placing explicit and absolute legal bans on its use in all contexts and, in parallel, by adopting such preventive, educational, and other measures that may be necessary to ensure the eradication of this form of violence, which poses a serious challenge to the wellbeing of children in the Hemisphere.

4.                  The IACHR is grateful to the Inter-American Development Bank for the financial support provided for the preparation of this report. 

Washington, D.C., 2009.
 

II.        BACKGROUND

5.                  The Inter-American Commission on Human Rights, a principal and autonomous organ of the Organization of American States (hereinafter “OAS”), is charged with overseeing the observance of human rights in the Hemisphere. Over the years, the human rights of children have been a topic of particular interest to the IACHR. Thus, during its 100th regular session, held in Washington D.C., from September 24 to October 13, 1998, the Commission resolved to create the office of the Rapporteur on the Rights of the Child, with the instruction to study and promote activities for assessing the human rights situation of children in the member States of the Organization of American States; and to propose effective measures so as member states adopt practices and legislative provision so as to ensure the enjoyment and exercise of human rights by all children.

6.                  In recent years, the Commission has been paying particular attention to the problem of violence against children and adolescents and the relationship it bears to human rights at numerous hearings, through its system of cases, petitions and precautionary measures, thematic and specific reports, and visits to different countries in the region. In that context, the Commission notes that one form of violence against children and adolescents that is still legal in some OAS member states is corporal punishment, which is used as a way to discipline young people and which continues because it is tolerated and accepted by society and the State. This situation violates the human rights of children and adolescents, in blatant contravention of the provisions of both the Convention on the Rights of the Child and the inter-American human rights instruments. That situation leaves the children and adolescents of the hemisphere in a situation of vulnerability and potentially without access to the effective protection of their human rights and to a decent and violence-free existence.

7.                  The specific topic of corporal punishment in disciplining children and adolescents was placed on the inter-American system’s agenda in 2005 at a thematic hearing held at IACHR headquarters during its 123rd regular session. That hearing was attended by the organization Save the Children Sweden and by the Andean Commission of Jurists, the Global Initiative to End All Corporal Punishment of Children, and defenders of the human rights of children and adolescents from across the Hemisphere,[4] who spoke of the need for the Commission and the Court to set an inter-American standard to guide the member states in meeting their international obligations regarding the use of corporal punishment to discipline children and adolescents in the Hemisphere.

8.                  At its 132nd session, the IACHR again turned its attention to the topic and decided to prepare this thematic report and to submit a request for an advisory opinion to the Inter-American Court of Human Rights[5] for it to set standards regarding violence of this kind and to emphasize the jurisprudence of the inter-American human rights system and the relation it bears to the subject matter of this report.

            III.      METHODOLOGY

9.                  The method used to prepare this report is based on an analysis of international human rights standards, sources of international law and comparative law, and on studies and tools developed by international and national organizations that work with children.

10.              The report sets out general considerations relating to children; it analyzes state responsibility vis-à-vis the use of corporal punishment in public institutions, state responsibility in the use of corporal punishment by private citizens, and corporal punishment as it relates to the institution of parental custody (patria potestad); and it proposes a series of measures for eliminating the corporal punishment of the Hemisphere’s children and adolescents.

11.              The final section sets out the Commission’s conclusions and recommendations, which aim to guide the member states in meeting their obligations of ensuring respect for and protection of the human rights of children and adolescents within their corresponding jurisdictions.

            IV.       DEFINITIONS

A.        Children[6] in international human rights law

12.              The American Convention on Human Rights does not define the term “child.” Therefore, in keeping with Article 31 of the Vienna Convention on the Law of Treaties,[7] the inter-American human rights protection system uses the concept established in international law, specifically in Article 1 of the Convention on the Rights of the Child,[8] adopted by the United Nations General Assembly in 1989, which defines children and adolescents as “every human being below the age of 18 years unless, under the law applicable, majority is attained earlier.”[9]

13.              In consideration of which, the Inter-American Court[10] and the Inter-American Commission[11] have established that the definition of “child” is based on the provisions of Article 1 of the Convention on the Rights of the Child.[12] In Advisory Opinion OC/17, the Inter-American Court ruled that “the term child, obviously, encompasses boys, girls, and adolescents”[13] and that

Taking into account international norms and the criterion upheld by the Court in other cases, “child” refers to any person who has not yet turned 18 years of age.^[14]

B.        Corporal punishment

14.              The IACHR embraces the definition proposed by the Committee on the Rights of the Child which in its General Comment No. 8, adopted in 2006, the Committee on the Rights of the Child defines “corporal” or “physical” punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light.  Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading.”[15] The definition that the Committee on the Rights of the Child established has two elements that enable one to clearly distinguish corporal punishment from mistreatment or abuse: one subjective element and the other objective.  The subjective element is the intent to correct, discipline or punish the behavior of a child or adolescent.  The second element, which is objective, is the use of physical force, however mild.  It is the presence of both these factors that makes the practice of corporal punishment a human rights violation that is different from mistreatment or abuse.  The subjective element in the definition of corporal punishment is significant since it is that intention to impose discipline, correction or punishment that distinguishes corporal punishment from other forms of violence committed against children. The convergence of these two elements establishes corporal punishment as a practice that violates children’s human rights.

15.              In addition, the Committee noted that there are other forms of punishment that, while not physical, are also cruel and degrading and thus incompatible with the Convention. “These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.”[16] In connection with General Comment No. 8 of the Committee on the Rights of the Child, the Inter-American Court of Human Rights said that it had “the purpose of guiding the States Parties on interpreting the provisions of the Convention on the Rights of the Child, in order to eliminate violence against children. For this purpose, it defined the concepts of “corporal punishment” and “other cruel or degrading forms of punishment”, stating that they are both incompatible with the said Convention, whether they take place in the home and family or in any other environment.”[17]

V.        GENERAL CONSIDERATIONS RELATED TO CHILDREN

A.        Recognition of the child as the subject of rights and the notion of a corpus juris

16.              The existence of a corpus juris applicable to children implies recognizing the existence of a set of basic provisions associated with the goal of upholding the human rights of children. In the inter-American system, the Commission made the first explicit references to Article 19 of the American Convention[18] and it was not until 1999 that the Court set out the idea that a corpus juris of human rights for children and adolescents should exist.[19] This idea had been developed by the IACHR in stating that:

For an interpretation of a State’s obligations vis-à-vis minors, in addition to the provision of the American Convention, the Commission considers it important to refer to other international instruments that contain even more specific rules regarding the protection of children. Those instruments include the Convention on the Rights of the Child and the various United Nations declarations on the subject. This combination of the regional and universal human rights systems for purposes of interpreting the Convention is based on Article 29 of the American Convention and on the consistent practice of the Court and of the Commission in this sphere.[20]

17.              In turn, the Court ruled that the American Convention and the CRC were part of an international corpus juris for protecting the rights of people aged below 18 years. That means there is a substantive connection between both instruments, demanding their joint application.[21] Thus, the Court ruled that with respect to the human rights of children:

Both the American Convention and the Convention on the Rights of the Child are part of a broad international corpus juris for protection of children that aids this Court in establishing the content and scope of the general provision defined in Article 19 of the American Convention.[22]

18.              The recognition of this corpus juris implies a reconceptualization of the aforesaid duty of special protection. Thus, the IACHR has stated that:

[…] the respect for the rights of the child is a fundamental value in a society that claims to practice social justice and observe human rights. This respect entails offering the child care and protection, basic parameters that guided in the past the theoretical and legal conception of what such rights should embody. It also means recognizing, respecting, and guaranteeing the individual personality of the child as a holder of rights and obligations.[23]

19.              The Court has noted that existence of this corpus juris is the result of evolution in international children’s human rights law, which is centered on the recognition of children as subjects of rights. Consequently, the legal framework for the protection of children’s human rights is not limited to the provisions of Article 19 of the American Convention; it also includes, for interpretive purposes, a range of provisions including those contained in the Declarations on the Rights of the Child of 1924 and 1959, the Convention on the Rights of the Child of 1989, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules of 1985), the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules of 1990), and the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines of 1990), in addition to the general international human rights instruments.[24]

20.              The Court has thus analyzed cases involving children’s human rights in application of the corpus juris regarding children, in accordance with the following reasoning:

To establish the content and scope of this article, the Court will take into consideration the pertinent provisions of the Convention on the Rights of the Child, which Paraguay ratified on September 25, 1990, and that entered into force on September 2, 1990, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), which Paraguay ratified on June 3, 1997, and which entered into force on November 16, 1999. These instruments and the American Convention are part of a very comprehensive international corpus juris for the protection of children that the Court must honor.^[25]

21.              It should be noted that the existence of corpus juris includes not only the text of the Convention on the Rights of the Child, but also the decisions adopted by the United Nations Committee on the Rights of the Child in pursuit of its mandate. That approach represents a significant step forward that indicates not only the existence of a shared legal framework in international human rights law as applicable to children but also the interdependence that exists at the international level among the different international systems for protecting children’s human rights.

B.        Special obligations of the State to protect children from acts of violence: the best interests of the child

22.              Article 19 of the American Convention provides that:

Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

23.              This article establishes a sphere of special protection for the human rights of children and adolescents that entails special, complemental and additional obligations of protection incumbent upon States. That sphere of special protection is dictated by the special conditions of the child as a subject of rights; in other words, it is necessitated by the child’s vulnerability and his or her dependence on adults in order to exercise certain rights, his or her maturity, progressive growth and development, and unawareness of his or her human rights and of the means by which to demand observance of those rights.  Given all these factors and considerations, the situation of children cannot be likened to that of adults and thus warrants the adoption of special measures.

24.              In General Comment No. 8, the Committee on the Rights of the Child stated that the interpretation given to the best interests of the child must be compatible with the entire Convention, including the obligation of protecting minors from all forms of violence. In light of those considerations, the IACHR notes that the use of corporal punishment against children and adolescents, in addition to failing to respect their human rights, denotes a view of children as an object of rights, not a subject thereof – a view that states, in accordance with their international obligations, must overturn.[26]

25.              Similarly, the Commission believes that, based on the doctrine of complete protection set forth in the Convention on the Rights of the Child itself, the best interests of the child must be construed as meaning the effective enjoyment of each and every one of their human rights. In other words: all decisions by the family, society, or State that affect persons under the age of eighteen must objectively and invariably take into account the effective enjoyment of all those rights. The Inter-American Court stated,

the phrase “best interests of the child”, set forth in Article 3 of the Convention on the Rights of the Child, entails that children’s development and full enjoyment of their rights must be considered the guiding principles to establish and apply provisions pertaining to all aspects of children’s lives.

The ultimate objective of protection of children in international instruments is the harmonious development of their personality and the enjoyment of their recognized rights. It is the responsibility of the State to specify the measures it will adopt to foster this development within its own sphere of competence and to support the family in performing its natural function of providing protection to the children who are members of the family.[27]

26.              The Inter-American Court has pointed out that “the Convention on the Rights of the Child sets high standards for protection of children against violence, particularly in Articles 19 and 28, as well as in Articles 29, 34, 37, and 40, and others, [...] taking into account the general principles contained in Articles 2, 3 and 12”.[28]

27.              The Convention on the Rights of the Child contains a number of provisions concerning the special protection of children and adolescents:

Article 2

1.       States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2.       States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.[29]

Article 3

1.       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.       States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform to the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

Article 19

1.       States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2.       Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 28

2.       States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
 

Article 37

States Parties shall ensure that:

(a)      No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

[…]

(c)      Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.  

[…]

28.              The provisions cited above make it clear that, from the perspective of the best interests of the child and the corpus juris, the State, society and the family must prevent and avoid, by every means possible, any form of violence against children, in every realm and by any method.  This includes all forms of corporal punishment and other traditional practices harmful to children’s personal integrity.[30] The incorporation of the basic principles applicable to children enshrined in the Convention on the Rights of the Child – such as the principle of nondiscrimination, the principle of participation, the principle of the child’s development and survival, and the principle of the child’s best interests – can be seen in the decisions adopted by the regional system. To illustrate this, one of the first references to the principle of the child’s best interests in the Commission’s decisions can be found in its 1997 Annual Report, in which it recommended that all decisions affecting the life, freedom, physical or moral integrity, development, education, health or other rights of children, be made with a view to ensuring that the best interests of the child is taken into account.[31]

29.              Also, the Inter-American Court has repeatedly noted the particular gravity of cases in which children and adolescents are the victims of human rights violations[32] as provided for in the American Convention and numerous other international instruments that enjoy broad acceptance within the international community. It has also emphasized that the “adoption of special measures to protect children is a responsibility both of the State and of the family, community, and society to which they belong.”[33] Similarly, in the case of Servellón García et al. v. Honduras, the Court ruled that :

The Tribunal understands that the due protection of children’s rights must take into consideration the characteristics of children themselves and the need to foster their development, and it must offer them the conditions necessary so that the child may live and develop his abilities with full use of his potential.[34] Likewise, the Court mentioned that Article 19 of the Convention must be understood as a complementary right that the treaty established for human beings that due to their physical and emotional development require special measures of protection.[35]

30.              In consideration of the best interests of children and of the State’s obligations arising therefrom, in ruling on other contentious cases and ordering provisional measures the Court has required that steps be taken to protect the psychological integrity of children in order to prevent irreparable harm.[36] It has also repeatedly noted the need for States to adopt special measures of protection and assistance in line with the principle of the child’s best interests[37] to ensure them a decent existence;[38] and it has ruled that this special protection “should be understood as the need to satisfy all the rights of the child, and this obliges the State and affects the interpretation of the other rights established in the Convention when the case refers to children.”[39]

31.              To summarize, in accordance with the established doctrine as applicable to children, which is based on their needs and the principle of their best interests, States are obliged to “adopt all positive measures required to ensure [the] protection of children against mistreatment [corporal punishment and other forms of violence], whether in their relations with public authorities or in relations among individuals or with non-governmental entities” in order to ensure them the full exercise and enjoyment of their rights.^[40]

VI.           CORPORAL PUNISHMENT OF CHILDREN AND ADOLESCENTS IN THE
 DOMESTIC LAWS OF THE AMERICAN STATES

32.              Historically, laws in countries around the world did not protect everyone from violence, with many even explicitly allowing men to strike their wives and teachers to punish their students. Substantial progress was made in the 20^th century, when defenders of women’s human rights promoted social and legal change, making domestic violence unacceptable and leading to the enactment of laws prohibiting it. Today, all adults are legally protected from assault, even if the force used is light. Nevertheless, adults are used to witnessing in public environments children and adolescents being punished corporally by their parents or other adults responsible for their care sometimes without response neither mechanism to protect them. By September 2009, only 24 states worldwide have enacted laws prohibiting corporal punishment even at the home.[41] Only three of these[42] are member States of the Organization of American States (OAS): Uruguay,[43] Venezuela[44] and Costa Rica.[45] Although the majority of countries in this hemisphere have ratified the Convention on the Rights of the Child, few have fully adapted their domestic laws to conform to the standards that the Convention establishes. In the last three years, however, bills have been introduced that would prohibit corporal punishment in all settings in Peru, Brazil, Canada and Nicaragua.

33.              As at September 2009, corporal punishment is not prohibited by law in schools in most OAS member states.[46] In some countries, it is prohibited in schools but not in the family.[47] Laws in some countries explicitly authorise corporal punishment and regulate how it should be inflicted, as in Belize,[48] Grenada,[49] and St Vincent and the Grenadines.[50] In some states, teachers can use corporal punishment as a last resort, in cases involving serious and repeated offenses.[51] Some laws even go so far as to specify the instrument that is to be used to administer the corporal punishment and how it is to be inflicted.[52] Invoking laws that allow the use of corporal punishment on children and adolescents in school, legal challenges to the practice of corporal punishment have been dismissed on the grounds that they were unfounded. For example, the Supreme Court of Saint Vincent and the Grenadines dismissed a suit in which a student claimed to have been the victim of physical punishment administered by a teacher on the grounds that the student’s case was unfounded. The Court ruled that the punishment could not be classified as degrading treatment, and the punishment itself was not, therefore, unlawful.[53]

34.              As for institutions and establishments charged with the care and protection of children and adolescents, in most countries of the hemisphere corporal punishment is not explicitly prohibited.[54]  Corporal punishment in institutions charged with the care and protection of children and adolescents is permitted in other countries.[55]

35.              Despite the recent progress made in some countries of the region regarding the express prohibition of corporal punishment of children and adolescents, flawed legislation on the subject remains on the books in most member states, a problem compounded by the fact that the practice is legitimized by society’s tolerance and acceptance of it.  It is vital that the States, in furtherance of their international obligations, explicitly prohibit corporal punishment in their laws and map national strategies, policies or plans geared to instructing individuals and institutions charged with children’s care alternative in nonviolent techniques of discipline.

            VII.     CORPORAL PUNISHMENT IN PUBLIC INSTITUTIONS

36.              The State’s obligation to prohibit the use of corporal punishment as a way to discipline children and adolescents under the custody and protection of the State’s public institutions – detention centers, hostels, orphanages, hospitals, schools, military schools, etc. – is absolute. In analyzing this topic, the agencies of the regional system speak of the additional vulnerability of individuals who, for whatever reason, are interned in public institutions[56] and the State’s special status therein as guarantor.[57] With regard to the right to humane treatment, the Court has ruled that the State has an obligation to apply the highest standard in determining the seriousness of actions that violate children’s right to humane treatment:[58]

The right to life and the right to humane treatment require not only that the State respect them (negative obligation) but also that the State adopt all appropriate measures to protect and preserve them (positive obligation), in furtherance of the general obligation that the State undertook in Article 1.1 of the Convention.[59]

37.              This guarantor role therefore means that the State has extensive control and dominion over the lives of those people under its protection or in its custody, who, in turn, are unable to satisfy numerous needs of their own, which makes the State the only entity capable of ensuring the enjoyment and exercise of their rights. The aforesaid criterion applies to all individuals under the care and protection of the State, and it is of particular relevance in connection with those aged under 18, because of the scope of the State’s special protection obligations and in light of the principle of the child’s best interest.

38.              The violence meted out by institution personnel in order to instill “discipline” in children can involve, inter alia, striking them and beating them with sticks and rubber hoses, hitting their heads against walls, immobilizing them in cloth sacks, tying them to furniture, locking them up in refrigerated rooms for days, and forcing them to lay in their own waste.[60] Sometimes they are caned or whipped, immobilized in uncomfortable positions, and subjected to humiliating treatment, such as being stripped and flogged in front of other detainees.[61]

39.              On many occasions, corporal punishment that leaves no visible traces is generally, if detected, neither investigated nor punished, because such punishments are not considered illegal acts and so there are no mechanisms to enable the children and adolescents to report them. This is compounded by the lack of oversight of certain States over such violence at their institutions; consequently, such actions go unpunished because the practice is either tolerated or encouraged by the State.

40.              The Court has been emphatic in stating that Article 1.1 of the American Convention requires States to take the steps necessary, through its own agencies and in conjunction with civil society organizations, to enforce the protection of children enshrined in Article 19 of the American Convention:

This Court has repeatedly established, through analysis of the general provision set forth in Article 1.1 of the American Convention, that the State is under the obligation to respect the rights and liberties recognized therein and to organize public authorities to ensure persons under its jurisdiction free and full exercise of human rights. According to legal standards regarding international responsibility of the State that are applicable to International Human Rights Law, actions or omissions by any public authority, of any branch of government, are imputable to the State which incurs responsibility under the terms set forth in the American Convention. This general obligation requires the States Parties to guarantee the exercise and enjoyment of rights by individuals with respect to the power of the State, and also with respect to actions by private third parties. By the same token, and for the purposes of this Advisory Opinion, the States Party to the American Convention are under the obligation, pursuant to Articles 19 (Rights of the Child) and 17 (Rights of the Family), in combination with Article 1.1 of this Convention, to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.

41.              In consideration of the general and specific obligations enshrined in the aforesaid human rights protection instruments, the IACHR has spoken on many occasions about the scope of the State’s obligation of affording special protection to children’s right to humane treatment in analyzing petitions, cases, requests for precautionary measures, and special reports dealing with, in particular, acts of torture, inhumane treatment, arbitrary arrest, extrajudicial killings, forced disappearances, domestic violence, etc.[62]

42.              Similarly, the Inter-American Court has also stated that the State’s role as guarantor requires it to prevent situations that could lead, through actions or omissions, to violations of the right to life or to humane treatment.[63] In its reply to the Advisory Opinion requested by the Commission, the Court said that “in its jurisprudence [it] has repeatedly made pronouncements regarding matters linked to the subject of the request for advisory opinion, in cases of litigation as well as in provisional measures and in one advisory opinion , which allow its criteria regarding the best interests of the child, the duty on the part of States to adopt positive measures in favor of the child, including legislative and other measures, as well as the particular gravity of violations of the rights of children, to be understood.”[64] Thus, in its Advisory Opinion 17, it addressed the idea of “mistreatment” in the following terms: “By the same token, and for the purposes of this Advisory Opinion, the States Party to the American Convention are under the obligation, pursuant to Articles 19 (Rights of the Child) and 17 (Rights of the Family), in combination with Article 1.1 of this Convention, to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.”[65]

43.              However, reality indicates that children and adolescents in State custody are often exposed to various forms of violence at the hands of the staff and authorities responsible for their welfare. Practices such as torture, inhumane or degrading treatments, mistreatment, sexual abuse, and the use of corporal punishment as a form of discipline are still common occurrences, all of which represent different violations of children’s human rights. The problem of corporal punishment is compounded by the fact that in most countries, such violence within public institutions is not explicitly banned.[66]

44.              In this regard, the IACHR believes that the protection of minors interned in mental health facilities is a matter of particular importance. The IACHR recognizes that the situation of children and adolescents with mental disabilities[67] is a topic that remains practically unaddressed not only on State agendas, but also by society. It is apparent that children with mental disabilities are in a situation of extreme and aggravated vulnerability, because they are both minors and disabled.

45.              To date, the IACHR has not heard any cases alleging violations committed against children with mental disabilities. It has, however, dealt with similar cases involving adults, and it has found that persons with mental disabilities are particularly vulnerable[68] and consequently require specialized treatment. These considerations acquire a special dimension when they involve children, who depend on adults not only to attain full development, but also to obtain what they need to satisfy their specific medical requirements in an environment that ensures them decent living conditions and enables them to achieve their full development as human beings.

46.              Given the particular vulnerability of children with mental disabilities, a holistic approach is required whereby the full regulatory framework governing children is applied to ensure their protection and to recognize the particular circumstances of their vulnerabilities. Of special importance in this are the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care,[69] the Inter-American convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities[70], Article 19 of the American Convention, and the following Articles of the Convention on the Rights of the Child: Article 9, on the child’s right to not be separated from his parents; Article 19, on the right of protection from abuse of all kinds; Article 27, on the right to an adequate standard of living; Articles 28 and 29, on the right to education; and Article 2, which enshrines the right to freedom from discrimination on the grounds of disability.

47.              Children with mental disabilities demand specialized, priority attention from the State as the only way in which they can meet their obligation of affording special protection to the rights of children. The IACHR therefore highlights the need to create programs to monitor agencies responsible for caring for disabled children and adolescents, regardless of whether their disabilities are mental or physical, in order to ensure that they are not exposed to the humiliation of corporal punishment. Regardless of this, it is also necessary to examine each specific case to determine when corporal punishment is involved and when other forms of human rights violations have come into play; this is because corporal punishments meted out against children with mental disabilities interned in public institutions could easily lead to more serious violations that could qualify as cruel, inhuman, or degrading treatment.

48.              At the same time, it is evident that the holding of children under the age of 18 at detention centers involves a series of characteristics that have been studied by the regional system’s agencies on several occasions. Respecting children’s dignity requires prohibiting and preventing all forms of violence within the context of juvenile criminal justice. That includes all phases in the proceedings, from first contact with the police authorities up to the serving of sentences.[71] Article 5 of the American Convention applies to individuals held in detention and enshrines the right of all people to have their physical, mental, and moral integrity respected. Consequently, torture and cruel, inhuman, or degrading punishments or treatment are banned, a principle that now belongs to the realm of the international jus cogens.[72]

49.              The IACHR has paid particular attention to protecting the rights of children and adolescents in conflict with the law, and has conducted regional consultations to produce a special report on standards and recommendations applicable to the topic. In consideration of the particular vulnerability of children and adolescents detained in State custody, the IACHR has underscored the need for States to adopt appropriate measures so that “minors in the centers of detention [do] not become victims of the severe correctional measures that represent an attack on their physical integrity and their dignity.”[73] With reference to forms of discipline, all measures that involve cruel, inhuman, and degrading treatment are prohibited, as are corporal punishment, seclusion in a dark cell, solitary confinement, reduced food rations, denying or restricting adolescents’ access to or contact with their parents, and any other measure that endangers their physical or mental health.[74]

50.              The Committee on the Rights of the Child, in speaking of disciplinary procedures, has stated that:

Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned.[75]

51.              In addition, there are other provisions contained in international declarations condemning the practice of corporal punishment that refer to the protection of children in State custody. As an example, the Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”), section “Guiding principles in adjudication and disposition,” establishes that “juveniles shall not be subject to corporal punishment” (Rule 17.3). Similarly, the United Nations Guidelines for the Prevention of Juvenile Delinquency (“Riyadh Guidelines”) provide that:

“21. Education systems should, in addition to their academic and vocational training activities, devote particular attention to the following: (...) (h) Avoidance of harsh disciplinary measures, particularly corporal punishment.” Guideline 54 further provides that “No child or young person should be subjected to harsh or degrading correction or punishment measures at home, in schools or in any other institutions.”

52.              In addition, to set specific standards for this topic, in March 2008 the IACHR adopted the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Principle I of which establishes that all detained persons:

[...] shall be protected from any kind of threats and acts of torture, execution, forced disappearance, cruel, inhuman, or degrading treatment or punishment, sexual violence, corporal punishment, collective punishment, forced intervention or coercive treatment, from any method intended to obliterate their personality or to diminish their physical or mental capacities.[76]

53.              In spite of these protective mechanisms, arrested children almost systematically receive violent treatment from officials, on occasions as a form of control or punishment for what are often minor offenses. In at least 78 of the world’s countries, corporal punishment and other violent forms of punishment are recognized as legal disciplinary measures at detention centers.[77] However, in its reports assessing the human rights situation in different OAS member states, the IACHR has spoken of the need to protect detained children from acts of violence, recommending specific courses of action to those States.[78] For example, in its 1997 Report on the Situation of Human Rights in Brazil, the IACHR requested that the State:

(d) Prevent and eradicate the acts of torture and abuse received by minors in prisons and institutions where they are confined; and [...] investigate, punish, and try the persons responsible for those offenses; and strengthen governmental and community agencies to supervise police action in regard to minors.[79]

54.              In turn, the Inter-American Court has been emphatic in highlighting the State’s duty of assuming the role of guarantor vis-à-vis detained children and adolescents, noting that the State:

“[…] must take special measures based on the principle of the best interests of the child. On the other hand, to protect a child’s life, the State must be particularly attentive to that child’s living conditions while deprived of his or her liberty.”

55.              The Court has also dealt in detail with the State’s obligation of protecting detainees from mistreatment. Specifically, with reference to the American Convention, the Court has underscored the prohibition of using mistreatment as a way to discipline detained children.[80]

56.              In the case of the Juvenile Reeducation Institute v. Paraguay, the Court ruled that:

The State has a special role to play as guarantor of the rights of those deprived of their freedom, as the prison authorities exercise heavy control or command over the persons in their custody.[81] So there is a special relationship and interaction of subordination between the person deprived of his liberty and the State; typically the State can be rigorous in regulating what the prisoner’s rights and obligations are, and determines what the circumstances of the internment will be; the inmate is prevented from satisfying, on his own, certain basic needs that are essential if one is to live with dignity.[82]

57.              With reference to the corporal punishment of adults, mention should be made of the case of Mr. Winston Caesar, convicted by the High Court of Trinidad and Tobago. In that case, the Inter-American Court found that the imposition of court-ordered corporal punishment on a man of adult age, consisting of a flogging with a cat-of-nine-tails, violated the right to humane treatment. Specifically, the Inter-American Court said that it:

also notes the growing trend towards recognition, at international and domestic levels, of the impermissible character of corporal punishment, with regard to its inherently cruel, inhuman and degrading nature. In consequence, a State Party to the American Convention, in compliance with its obligations arising from Articles 1.1, 5.1, and 5.2 of that instrument, is under an obligation erga omnes to abstain from imposing corporal punishment, as well as to prevent its administration, for constituting, in any circumstance, a cruel, inhuman or degrading treatment or punishment.[83]

58.              It is also worrisome to the Commission the lack of explicit prohibition of corporal punishment in the codes of discipline in military schools in different Member States, as well as the apparent lack of access to a system of compliant or effective mechanisms of investigation of such practices.[84]

59.              The Committee on Economic, Social and Cultural Rights has ruled that the use of corporal punishment undermines the right of dignity of individuals aged under 18, using the following terms:

In the Committee’s view, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: the dignity of the individual.[85]

60.              In its final comments on the situation of economic, social, and cultural rights in the states parties to the International Covenant on Economic, Social, and Cultural Rights, the Committee urged States to prohibit and eradicate the use of corporal punishment.[86]

61.              Concern about the use of corporal punishment on children and adolescents in all areas has also been noted by the Committee on the Elimination of Discrimination against Women[87] and by the Committee Against Torture.[88]

62.              In the European system, the European Court of Human Rights has progressively condemned the use of corporal punishment in juvenile criminal justice systems, at schools (including private schools), and in the home; it has not as yet explicitly required the prohibition of all corporal punishment, but it has also established that the prohibition of corporal punishment does not conflict with the protection of other human rights such as religious freedom or the right to the protection of private life.[89] The European Court gave its first ruling on the use of corporal punishment as a sanction for juvenile offenders in 1978, in the case of Tyrer v. the United Kingdom. In this case, the Court ruled that the birching of adolescents as a punishment was in violation of the prohibition on inhuman or degrading treatment or punishment enshrined in Article 3 of the European Convention.

63.              In that case, the European Court specified that determining a violation of Article 3 of the European Convention required an analysis of the following factors: the nature of the punishment, the context in which it is applied, how it is applied, the method used, its duration, the physical and mental effects, and, in certain circumstances, the sex, age, and health conditions of the victim.[90]

64.              The African Commission on Human and Peoples’ Rights has also handed down decisions regarding the incompatibility of corporal punishment used against children and adolescents. Thus, in the case of Curtis Francis Doebber v. Sudan, 236/2000, it was alleged that eight students’ right to humane treatment had been violated by the imposition of 40 lashes as a punishment for criminal offenses. In a decision adopted during its 33rd session, held in Nigeria in 2003, the African Commission ruled that states did not have the right to inflict physical violence as a punishment for offenses since it was in contravention of the nature of the African Charter on Human and Peoples’ Rights.[91]

65.              Thus, in light of the above considerations and the existing jurisprudence applicable to children, it must be seen that States are obliged to eradicate the use of corporal punishment as a way of disciplining children and adolescents in all areas of their lives.

66.              State custodial facilities must record the acts of violence and injuries suffered by children and adolescents during the time they spend in detention.[92] All complaints must lead to independent investigations, particularly when violence, torture, cruel, inhuman, and degrading treatment, or corporal punishment are involved, and when they result in the injury or death of detained adolescents.[93] Similarly, States must adopt measures to prevent the repetition of the incidents described in those complaints.[94]

67.              In other words, States are obliged to create effective mechanisms for preventing and punishing acts of violence against children and adolescents, both at home and in the educational system, as well as in other areas of social life where such threats may arise. Consequently, it is clear that the member states are under the obligation of adopting strict oversight programs to monitor the situation of children and of taking the steps necessary to uphold the rights of children, particularly those that are victims of violence, including violence inflicted through corporal punishment. As the Court has said, the scope of the member states’ positive obligations in this regard requires that they “adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.”