International Standards for the Promotion and Protection of Children's Rights: American and South African Dimensions

29 Pages Posted: 14 Oct 2011 Last revised: 6 Jun 2012

Date Written: February 10, 2009

Abstract

This article highlights the profound differences between the South African and American juvenile justice systems reflected in two similar cases that were decided at more or less the same time in South African and in the United States. The South African case concerned a 12 year old girl who prevailed on two strangers to kill her grandmother, and the American case was that of a 12 year old boy, Christopher Pittman, who shot and killed his grandparents. The South African girl (and in South Africa the names of juvenile offenders are not made public) was placed under probation under strict conditions. Christopher Pittman received two prison sentences of 30 years which were to be served concurrently. The decision in the South African case was informed by international standards of juvenile justice, that are based on the best-interests-of-the-child paradigm, and which opposes the sentencing of juveniles to imprisonment. Christopher Pittman was prosecuted as though he were an adult and 30 years imprisonment is the minimum sentence for murder in the state of Virginia. Prosecuting juveniles as though they were adults violates the most fundamental principles of justice and is for that reason not part of South African law. Criminal liability is based in part on the blameworthiness or culpability of the offender, and tender age is in itself signifies reduced culpability. In South Africa, minimum sentences do not apply to juvenile offenders.

The United States has been condemned on many occasions by international tribunals for not upholding internationally recognized principles of criminal justice. The problem is essentially one of federalism. Juvenile justice falls within the jurisdiction of states, and in all states juveniles can be prosecuted as though they were adults. The decision to prosecute a juvenile as an adult is almost exclusively based on the nature of the crime and not on the accountability of the child. The different rules that apply in the different states to basic rules of human rights have also prompted the Inter-American Commission of Human Rights to condemn the United States for not upholding the principle of equal justice. In international law, the United States constitutes a single sovereignty and differences in respect of basic human rights in the laws and practices of the state s therefore violate the international norm of equal protection. This is not a matter that can be remedied, it would seem: If the federal legislature were to enact legislation to bring the juvenile justice systems of the states into conformity with international standards, the legislation will constitute an unconstitutional infringement of the rights of the states; and the U.S. Supreme Court cannot outlaw the prosecution of juveniles as adults because the practice of doing so is upheld in every single state and can therefore not be declared “unusual” within the meaning of the Eighth Amendment.

Suggested Citation

Van der Vyver, Johan, International Standards for the Promotion and Protection of Children's Rights: American and South African Dimensions (February 10, 2009). Buffalo Human Rights Law Review, Vol. 15, No. 1, p. 81, 2009, Emory Public Law Research Paper No. 11-174, Available at SSRN: https://ssrn.com/abstract=1944194

Johan Van der Vyver (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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