Childhood Abused

Protecting Children Against Torture, Cruel, Inhuman and Degrading Treatment and Punishment

Geraldine Van Bueren

• Publisher: Routledge
• Year: 2019
• Topic: Social Sciences
• eBook ISBN:
  9780429867415
• Subtopic: Law Theory & Practice
• Index: Social Sciences

First published in 1998, this book seeks to consider the application of international human rights standards to situations where children are at risk of torture and other forms of ill-treatment. Each of the contributors authoritatively examines torture, cruel, inhuman and degrading treatment and punishment from the perspective of their own discipline and experience. In exploring the issues, Childhood Abused, also helps to raise their profile, as invisibility, ignorance and secrecy contribute to the continuation of such practices. The subject is harrowing and complex, Childhood Abused, needs to be read so that we are better able to prevent and protect children against such abhorrent and prohibited forms of ill-treatment.

1 Shame and Physical Pain: Cultural Relativity, Children, Torture and Punishment

Judith Ennew

‘The refined punishments of the spiritual mode are usually much more indecent than a good smack.’¹

Introduction: Cultural Relativity

In inter-disciplinary forums, the expected role of a social anthropologist often seems to be to provide anecdotal challenges to the dominance of Western rationality.² The increasing literature on comparative jurisprudence shows that Western-oriented, international human rights lawyers recognize the need to do this and often welcome the challenge of well-articulated alternative viewpoints, such as Islamic law.³ Nevertheless, when social anthropologists consider law they are usually discussing systems that are uncodified, in addition to being based on systems of moral philosophy and logic that are far removed from the relatively similar, codified systems of Islam and Christianity.

It is quite clear that one notion of rationality dominates in international work, whether in law, economics or science. Western thought and action are, as one sociologist has put it, ‘oriented to formal, empirical rationality in a controlled environment’.⁴ But this does not mean that they are necessarily superior. Indeed, social anthropology insists that other structures of thought and behaviour are no less logical, rational and moral than those that currently hold sway. With respect to the practical (as well as legal) implementation of international human rights instruments such as the Convention on the Rights of the Child (CRC), I would suggest that it is important to respect these other world views. And by ‘respect’ I do not just mean accepting that these forms of understanding exist, but rather trying to enter into and learn from them.

Current discourses on the CRC tend to be dominated by legal standard-setting. When it comes to setting policy goals and interventions for implementing these standards, it is appropriate to explore the meanings they have in different cultural contexts. One danger of accepting that other systems of concepts and beliefs can be equally rational in their own terms is that this can lead to the argument that it is impossible to make cross-cultural comparisons, in which case it would be impossible to establish universal human rights law except through cultural imperialism. I would argue, however, that international standards can be set, not through establishing which system is ‘best’, nor by negotiating some kind of lowest possible denominator, but rather by moving the debate to another level in which, as another sociologist has put it, ‘different institutions, embodying different conceptual schemes, may illuminatingly be seen as serving the same social necessities’.⁵ This can be easiest to demonstrate at a practical level. As Pamela Reynolds has shown with respect to children traumatized by the Zimbabwean War of Liberation, traditional methods of healing may be more effective than psychological counselling imported by foreign aid workers.⁶ They are certainly cheaper, and probably restore children more effectively into the lives of their communities in which such healing methods are integral to the way the world is conceptualized.

The importance of respecting other forms of rationality within the arena of international human rights law is currently being demonstrated to me in the form of certain practical difficulties I experience coordinating a project that explores the possibility of developing systems for monitoring the implementation of the CRC in eight very different countries (The Childwatch International Indicators for Children’s Rights Project).⁷ In this context I am working with national teams of researchers, examining the potential of current data about children for developing monitoring systems. Part of the process requires a critical reading of the Convention on the Rights of the Child in local languages, exploring the relevance of the articles and the concepts they imply in each cultural setting, by examining the resonance of words and phrases.

As has been widely recognized, the CRC contains many linguistic and cultural traps and has been criticized at times for being at best inapplicable outside Western countries or at worst as an instrument of cultural imperialism.⁸ The most notable example is probably that of Article 3(1) on the best interests of the child. Although this Article is usually taken to be fundamental in both Western and non-Western settings, in the former it is associated with legal and social work practice, while in the latter it often means something akin to ‘children first’.⁹ Not for nothing is Alston’s book The Best Interests of The Child subtitled ‘Reconciling Culture and Human Rights’. As he points out, the CRC, perhaps more than any other international human rights instrument, has revealed a need to seek ‘approaches which involve neither the embrace of an artificial and sterile universalism nor the acceptance of an ultimately self-defeating cultural relativism.’¹⁰

Resistance to the very idea of cultural relativism, as Abdullahi An-Na’im points out, is often based on the suspicion that it ‘denies to individuals the moral right to make comparisons and to insist on universal standards of right and wrong’.¹¹ Yet individuals, however outraged they may be by certain customs and practices, especially in the fields of child abuse and exploitation, cannot set either local or international standards by themselves and moreover respect for culture can be used, as Alston citing Dawkins argues, as a ‘trump card’.¹² All customs and standards are social, the product of interactions within groups, whether these are small-scale or what is sometimes called the ‘human’ or ‘international’ community. Moreover, as An-Na’im further reminds us, cultures do not simply differ from group to group, they are also dynamic, flexible and often internally inconsistent or ambivalent.¹³ Reality is socially constructed and values constantly negotiated. The ideational structure of international human rights law is itself a new cultural product.

The CRC presents some fairly obvious difficulties. One example is Article 16(1) on privacy, which has little relevance in countries where individual, physical privacy does not have high cultural value. Another is the use of the phrase ‘periodic review of placement’ in Article 25, which is hard to envisage in the context of traditional fostering systems as in West Africa.¹⁴ More deep-rooted difficulties can be experienced with respect to Article 1, the definition of the child, not simply in legal terms, with respect to the ages at which certain activities can be permitted or expected, but also in terms of the cultural definitions of the ages and stages of childhood. Even in the English-speaking world there is no single word that can meaningfully be applied to infants, toddlers, primary school children, early teenagers and youths under the age of 18 years. Indeed, some terms may be exclusively applied to either girls or boys. In addition, there are wide cultural variations in expectations of the level of maturity expected at different ages or stages, which also has implications for the interpretation of Article 12.

My aim here is to explore some of the meanings that might be attached to some of the terms used in a single article of the CRC, Article 37.1 will use anthropological anecdotes as well as some textual comparisons. Although the first anecdote is taken from the ethnographic record of Papua New Guinea, the majority of examples are limited to Africa, most particularly Senegambia, the area in which the first of the monitoring country case studies took place. This focuses the argument on debates about culture that arise through comparison between the 1989 United Nations CRC and the African Charter on the Rights and Welfare of the Child (African Charter), adopted by the Organisation of African Unity (OAU) in 1990.¹⁵

The First Anecdote

In keeping with their acceptance of other kinds of thought and rationality, anthropologists are not supposed to intervene in, or argue against, the customs of people they live with and study. Ethnographic texts are intended to be objective rather than normative. This can result in personal dilemmas. These are not always discussed in the literature, although there are exceptions. Kenneth Read lived in a village called Susuroka among the Gahuku people of Highland New Guinea for two years and wrote one of the most honest ethnographic accounts ever published. A central chapter in his book, High Valley, concerns the initiation of a member of his house staff, for whom Read had developed considerable affection:

Asemo was fourteen or fifteen, a little younger than the age of initiation for most Gahuku boys. He was slight and serious, never playing the buffoon like Piripiri, his age mate, who stirred up gales of laughter in the street by hopping around with his head between his knees, flapping his elbows and crowing like a cock. Though Asemo joined in the laughter and shook his head with pleasure, he was a more dignified and thoughtful boy....

He had a quality of contained but relaxed participation – his hands held loosely in his lap, shoulders slightly to the fore, his back a supple curve from the base of his neck to the crossed legs that carried the weight of his body. Asemo’s head and eyes showed that he was taking stock of everything around him, yet he also seemed to be aloof, watching from some inner vantage point where his mind made its own judgements and decisions.¹⁶

Asemo’s father had asked Read if, as the boy’s employer, he had any objection to Asemo going through Gahuku initiation rituals. As the time of the ceremonies approached, Read’s feelings about this assumed responsibility turned to dread:

I followed the preparations from a distance, questioning my house boys. The frank accounts of their terror when they had stood in his place joined me more closely in sympathy to Asemo and added to my burden of doubt and responsibility. It was not enough consolation to know that the dangers he faced were exaggerated by the boys: initiates seldom died from the rites,¹⁷

The main public rites, conducted at the river’s edge, lasted a day. Although Read states he could appreciate their drama and symbolism he also wrote that ‘what I saw that day revolted me’.¹⁸ The initiates were conducted by their sponsors through two trials, which were fir...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Acknowledgments
• Foreword, Nigel Rodley, United Nations Special Rapporteur on Torture
• Series Preface
• Introduction
• 1 Shame and Physical Pain: Cultural Relativity, Children, Torture and Punishment
• 2 The Ill-treatment of Children – Some Developmental Considerations
• 3 Activism, Politics and the Punishment of Children
• 4 Opening Pandora’s Box-Protecting Children Against Torture, Cruel, Inhuman and Degrading Treatment and Punishment
• 5 International Conventions Against Torture and on the Rights of the Child -The Work of Two United Nations Committees
• 6 Torture of the Girl-Child
• 7 The Violation of Economic, Social and Cultural Rights as Torture or Cruel, Inhuman or Degrading Treatment
• 8 Are the Rights of Refugee Children Protected Adequately Against Torture?
• 9 A Non-Governmental Organization Perspective of the United Nations’Approach to Children and Torture
• 10 Can Medicine be Torture? The Case of Children
• 11 Children and Reintegration
• 12 Children Exposed to War, Torture and Other Organized Violence – Developmental Consequences
• 13 The Effects on Children of Witnessing Violence Perpetrated against their Parents or Siblings
• 14 The Torture of Children: Assessing Torture and Devising Methods to Prevent It
• Appendices
• I United Nations Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975
• II United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984
• III Inter-American Convention to Prevent and Punish Torture 1985
• IV The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987
• V United Nations Convention on the Rights of the Child 1989
• Index