Georges J. Assaf, Ph. D.

Criminal Law and the Rights of the Child in Islamic Countries:

A Comparative and Analytical Perspective

British Institute for International and Comparative law

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� Ratification of international treaties by the legislature in Lebanon has a direct self-executing effect.

� Although being part of the national legal system of Lebanon, personal status (religious) law is a particular set of norms very much linked to the political plural system of the country.

� Lebanon’s constitution recognizes equal rights to 18 religious denominations to expedite matters related to their respective personal status law through their own courts

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�Direct application by national courts of

standards carried by international human

rights conventions, which, supersede internal

legislation, raises the issue of application of

those standards by religious courts with

regard to various aspects of Family Law such

as marriage, divorce, custody of children,

and, for Muslims only, succession matters.

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� Contradiction between constitutional norms

incorporating UDHR and UN human rights

conventions and personal status (religious)

law as applied by religious tribunals,

detrimental to the rights of individuals in

general and to the rights of the child

�Upholding the rights of the child in the field

of criminal justice, is dependant on a global

legal reform to encompass a unified optional

civil personal status law and the narrowing of

the competence of religious courts.

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� Application of international human rights

conventions by all courts could be a solution

to such a contradiction inherent to the

national constitutional and legal framework.

� The issue of application or non-application

by religious courts of international standards

integrated to the internal juridical order of

Lebanon, raises the question of ordre public,

or public policy, in Lebanon: is there an

ordre public specific to each of the secular

and religious spheres of competency?

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� Application of international human rights

standards through judicial activity in

Lebanon (freedom of religion, gender

equality, prohibition/acceptance of

polygamy, equality of children born outside

marriage with those born in the family, non-

discrimination in inheritance matters,

freedom of conscience for children, access to

justice, protection of juveniles in conflict

with the law…) in general and with reference

to the dual jurisdiction (civil and religious)

that is specific to Lebanon.

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� Perspectives for progress towards a reform of

the political system that will erase

differences in status linked to religion

� Issues raised in this context are interlinked

and affect directly and indirectly the status

of children in Lebanon as assessed against

the background of international human rights

law.

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A- Constitutional considerations�The Lebanese Constitution is a liberal style

constitution that expresses the consensus of ethnic and religious communities in creating

the modern state of Lebanon (1920)

� It shapes the power-sharing system between ethnic/religious communities (7

Muslim and 11 Christian denominations)

� It defines the contours of the competencies left to these communities in the field of personal status law

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� It does not refer to any religion as a state

religion nor does it refer to any religion as a source or the main source for law.

�These communities are distinctive entities which enjoy the right to determine their own personal status rules and to establish their own tribunals

with regard to personal status i.e. exclusively family law matters (marriage, divorce, custody of children, filiation, adoption where applicable, eventually succession).

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�The competency of religious tribunalsis not uniform as its scope varies from one community to another

�It is not a full competency and remains subject to the State ordre public

�The right of referral to the Constitutional Court include the spiritual leaders of the Lebanese “historical communities” for matters pertaining to religious freedoms

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B- Related Concerns

� The constitutional framework which guarantees human rights in the Republic of Lebanon establishes a polarized system for equality in rights and duties of the members of the religious communities.

�The constitution guarantees equality between all citizens except in the field of personal status, where citizens are viewed as members of the ethnic/religious communities.

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� This notion of rights by virtue of

membership in a particular category of religion is antithetical to the concept of universal human rights

� The dual jurisdiction in Lebanon (civil and religious court systems) which reflects the

dual layer on which stands the Constitution

� Public policy is often ignored by religious courts despite the residual nature of their competence, civil law being the common

law of Lebanon

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A- Effects of the ratification or accession of the State to an international convention

� A complex system the outcome of which renders the convention self-executing and thus effectively applicable before national tribunals.

�When invoked before a tribunal, provisions of an international convention have precedence over domestic law be it contradictory to the international norms or not.

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� International standards do have

precedence over constitutional provisions when those international standards coincide with unwritten general legal principles

�Only the national tribunals have the

competency to interpret provisions of international conventions because the latter are considered to be part of the internal legislation

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B- Limits to the application of international human rights conventions in the context of the dual civil and religious judicial system

� The application of international human rights conventions in the Lebanese context, especially CRC and CEDAW, is polarized between civil and religious courts

� Two basic ideas permeate the definition of the problems that the judiciary has to face when applying CRC in reference to family law in Lebanon.

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1. Universality and indivisibility of human rights: the Lebanese judiciary applies international conventions with regard to gender equality,( contrary to religious law that recognizes preeminence of men in conducting family affairs) and considers protection of children from their own parents as a matter which is separate from religious law by application of the principle of the best interest of the child regardless of the custody given to one of his parents by decision of the religious court.

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2. Contradiction of the axiomatic approach

expressed above: international human

rights concepts and values are detrimental

to family values in as much as they

exacerbate individual rights and contribute

to the disintegration of the traditional

family cell.

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� The “intrusion” of universal values and international standards in the sphere of family law be it civil or religious, poses a problem to the judiciary in Lebanon when challenged by parties invoking international human rights conventions in cases involving family law (gender equality in the married couple, equality in rights of children whatever their birth status(illegitimate or born out of wedlock), freedom of conscience of the members of the family including children, protection of women from their husbands, protection of children from their parents).

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C- Legal palliatives �An “exit” solution to these limits that is instrumental for upholding the rights of

children, exists, that allows for automatic recognition by the state of civil marriage contracted outside Lebanon

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�A- Legal Status of juvenile offenders

� The legal minimum age of criminal liability (7 years)

�Nuances in the criminal liability of the child by means of a special procedure for attenuation of sanctions according to three classes of juvenile offenders(between 7 and 12 years for whom only restorative measures are applicable; between 10 and 15 years for whom correctional measures are applicable; between 15 and 18 years for whom same array of measures measures is applicable except in case of homicide).

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�Capital punishment is proscribed

�No discrimination in the law between boys and girls,

�Juvenile courts

�As in the general State legal context which governs justice, no room is made for application of sharia or any other kind of religious law

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B- Concerns and challenges related to juvenile laws and policies

a. Concerns stemming from social, economic, cultural political background

� The social, economic, cultural background for juvenile offenders is a major determinant for juvenile criminality (dislocated families , a poor environment, repeated marriages that leave children without care, work at an early age, school drop outs left at the mercy of organized crime, use of children by adult members of their extended family to commit crimes of honor) 22

�The political framework (proliferation of small fire arms ; indoctrination of children at an early age by still armed militias)

�Lack of legal status that allows protection

(refugee status, statelessness)

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b. Challenges related to juvenile laws

and policies�The need for a legal reform (protection of children deprived of their liberty, due process of

law; raising the minimum age for criminal

responsibility and other minimum age

requirements; implication of the general

principle of the best interest of the child in

relation to Lebanon’s laws and policies on issues

such as institutionalization and imprisonment;

effective implementation of restorative justice)

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�The need for training of law enforcement agents (prisons personnel; specialized police Unit for Minors)

�Weak incorporation of the provisions of the Convention on the Rights of the Child in the national legislation.( legal gaps analysis in the field of criminal juvenile justice still needs to be completed)

� Structural fault in the mechanisms of protection of children which stems from the clearly gender related dimensions to personal status laws

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C- Strategies to uphold the rights of the Child in the field of Criminal Justice

� Prevention (legal provisions to prevent in-family violence and abuse, the establishment of mechanisms for receiving, investigating and following up on complaints , making sure that the judicial procedure is respectful of the vulnerability of the child offender, legal aid and advice for juvenile offenders for reinsertion in the society, a special hotline for children to use for urgent calls...)

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� Capacity-building for legal professionals

(judges and lawyers) and law enforcement

agents

� Increased intervention of the Court of

Cassation in controlling respect of public

policy by the judgments issued by religious

courts

�Harmonisation of the internal legislation with

the provisions of International Human Rights

Conventions ratified by Lebanon.

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