A. The International Legal Context: Detention, Torture and Other Cruel, Inhuman or Degrading Treatment
Few rules of international human rights law are as clear and well-established as those that protect children from detention, torture and other maltreatment. The CRC, echoing similar provisions in the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR), prohibits torture and other cruel, inhuman or degrading treatment under all circumstances. It admonishes states that any detention of children 'shall be used only as a measure of last resort and for the shortest appropriate period of time.' This principle reflects broad international consensus that confining children, whether for rehabilitative or punitive purposes, is rarely if ever in the 'best interests of the child,' the paramount standard that governs all state practices that affect children.
In 1990, the U.N. General Assembly stated that 'juveniles deprived of their liberty are particularly vulnerable to abuse, victimization and the violation of their rights . . . .' International law recognizes that detained children are effectively defenseless against abuses by officials, guards and the adults with whom they are often illegally detained. Moreover, children are rarely aware of - and, in any event, seldom able to exercise - their legal rights without assistance from a parent, guardian or lawyer. Consequently, UNICEF emphasizes that article 37 of the CRC, which sets forth strict standards for the treatment of detained children, applies under all circumstances in which a child may be deprived of liberty, not only where the child is detained on suspicion of criminal activity. States parties to the CRC also commit to protect children from 'economic exploitation,' which includes 'any work that is likely to be hazardous or to interfere with . . . the child's health or physical, mental, spiritual, moral or social development.' In detention, this unquestionably forbids the use of children for 'prison labor.'
Though children should be detained only as a matter of last resort, international law also mandates that in such cases states afford them due process of law. Children must be presumed innocent until proven guilty, informed promptly of the charges against them, afforded legal counsel and granted a hearing according to the law before an independent body.
International law absolutely forbids torture, defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Legal rules prohibiting torture and their rationale require little elaboration. But two points bear emphasis in this context.
First, while torture violates international law under any circumstances, its use against children is particularly egregious. In 1996, the CRC Committee condemned China's failure to protect children from torture by endorsing - relative to persons below the age of eighteen - the U.N. Committee Against Torture's 1993 concluding observations on China. In its report, the Committee Against Torture had specifically noted that 'the special environment that exists in Tibet continues to create conditions that result in alleged maltreatment and even death of persons held in police custody and prisons.' Thus, the CRC Committee found that children in China, and particularly Tibet, are not adequately protected from torture. Yet China has not, to date, taken steps intended to protect children from torture or to punish its perpetrators.
Second, the CRC Committee has made clear that 'corporal punishment,' whether administered in schools or at home, should be viewed as a form of cruel, inhuman or degrading treatment. As such, it is 'incompatible' with the CRC. The CRC states expressly that 'school discipline' must be 'administered in a manner consistent with the child's human dignity . . . .'
Though the PRC is bound to implement by domestic laws the treaties it has ratified, including the CRC and the Convention Against Torture, our research shows that in Tibet these treaties remain little more than 'words without substance.'