niños-sirios-1

Mary Crock

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement.

International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country).

Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees.

This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

In this short reflection, I endorse fully Pobjoy’s argument that it is the Convention on the Rights of the Child (CRC) that has served as game changer for refugee children. At the most obvious level, the CRC and its four associated Protocols set out ‘the range of behaviours that states themselves have defined as unacceptable in the context of children’ (Pobjoy, 123). While Hathaway has used international human rights norms to construct something of a hierarchy of harms to identify persecutory harm (see discussion at 105ff), Pobjoy makes the point that the CRC places equal value on all aspects of children’s rights. He uses this to argue that the treaty ‘provides an automatic and principled means for adapting the persecutory threshold to take into account a child’s heightened sensitivities and distinct developmental needs’(at 123).

https://www.ejiltalk.org/persecuting-children-how-the-convention-on-the-rights-of-the-child-has-pushed-the-evolution-of-refugee-law/

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