Sahrawi controlled areas: freedom from violence

In 1976, a large part of the indigenous Sahrawi nomadic population fled the Western Sahara because of ongoing violent conflict over the territory. They settled in refugee camps just over the border near Tindouf, Algeria. To this day, Sahrawi families are living as refugees in these camps. As part of our study on the development rights of children living in unrecognized states, we visited the camps and studied the rights of children living here. Based on what children indicated we should focus our study on, this case study focuses on the child’s right to freedom from violence. In particular, we focus on violence between children and corporal punishment in the family and at school. Below you find all the blogs and vlogs related to this case study.

By Tajra Smajic - 7 September 2021

Introduction

Fleeing from the conflict in Western Sahara in 1976, many indigenous Sahrawi nomads fled to the neighboring Algeria and settled near the Algerian town of Tindouf. Ever since, the refugee camps near Tinduf have been home to thousands of Sahrawi refugees and have been controlled by the Sahrawi Arab Democratic Republic (SADR).  While there is much to write about the history and life in the Tindouf camps, in this blog post, I will focus on the question on whether parents are allowed to lightly spank their children in the camps.

However, researching about children’s rights in ‘self-governing’ refugee centers, such as the Tindouf Refugee Camp, is not an easy task. These camps are governed by SADR, but it is neither recognized as a sovereign state nor can become a member to international conventions, such as the “Convention on the Rights of the Child” which prohibit any type of physical punishment of children. The answer of the question “what law is applicable and who is responsible in such areas in relation to the protection of children’s rights would not be straightforward. In this post, I will therefore look into different potentially applicable laws to find out whether parents are (legally) allowed to physically punish their children in the Tindouf refugee camps.

Sahrawi Arab Democratic Republic (SADR) law   

Algeria, the host state of the Tindouf camp, delegated all responsibilities over the camps to the Polisario government. This means that in the camp, Sahrawi law is practiced. Leaving aside the issues that arise due to the lack of international recognition of SADR as a state and therefore the legality of its legislation, researching about children’s rights in the camp is accompanied with the difficulty of accessing the SADR legislation. While references to the Family Code, Civil Code and Criminal Code can be found, I was unable to access any of those sources and could base the legal analysis only on the Constitution.

Unsurprisingly, there is no provision in the constitution that prohibits physical punishment of  children, especially not at home. However, some potentially relevant rules are:

  • The family is the foundation of the society and should be based on religious, ethical and national values and on the historical heritage (Article7)
  • The protection and promotion of the family values is the obligation of the parents, especially regarding the education of their children (Article 50)
  • It is prohibited to violate anyone’s sense of morality or honour or to exert any kind of physical or moral violence against another or infringe their dignity (Article 28)
  • Special protection is to be given to mothers, children, disabled persons and the elderly and the state has to set up institutions to that end and enact relevant laws (Article 39).

 

A map of the territory of Western Sahara and the Tindouf camps.
SOURCE: The Public Broadcast Service

At first sight, this could be understood to mean that physical punishment is not allowed, as it is prohibited to exert any kind of violence against another or infringe their dignity. Additionally, children are supposed to be under special protection. This reasoning would be in line with the international law. However, without being able to access the family or criminal codes, it is impossible to establish whether there is an explicit prohibition of physical punishment of children at home. Even if such a prohibition exists, the question remains whether such legislation is accessible to parents in the camps and if parents would be aware of such a prohibition.

International and regional law

As an unrecognized state, the SADR is not a party to international treaties such as the Convention on the Rights of the Child. It signed but did not ratify the African Charter on the Rights and Welfare of the Child (ACRWC). Therefore, the statement of the African Committee of Experts on the Rights and Welfare of the Child, body responsible for supervising implementation of the ACRWC, which established that physical punishment is not allowed under ACRWC, has no legal effect in SADR.  This means that under international and regional law, the SADR has no obligation to prohibit physical punishment at home.

Sharia law

Islam, as the predominant religion of the Sahrawi, plays an important role in the Tindouf camps. Moreover, according to the Sahrawi Constitution, Islam is the State religion and the main source of law (Article 2).  

Sharia law (Islamic law) has multiple sources, namely the Holy Book (The Quran), the Sunnah (the traditions and practices of the Prophet Muhammad), Ijma' (opinions of Islamic scholars), and Qiyas (analogical reasoning based on principles deducted from the Qurʾān and the Sunnah). Due to the nature of these sources, the exact content is subject to interpretation. As a consequence of these different interpretations, there are divided views with respect to whether physical punishment of children at home is allowed.

Two main views are that (1) parents or guardians should refrain from physical punishment and use other disciplining methods instead, and (2) that physical punishment is allowed in certain instances. The second view is dominant and according to this interpretation of Sharia law, parents/guardians have to follow certain rules if they want to physically punish their child. I was able to identify following rules:

  1. The parent should use firstly other types of parenting methods, such as direction, kind warnings and advice.
  2. Children under the age of ten should not be beaten
  3. The punishment with beating should be appropriate to the misdeed
  4. The beating should not hurt the child either psychologically or physically
  5. Parents/guardians should beat only in a suitable setting, meaning not in front of other people.
  6. The child should not be beaten when the parent/guardian is angry. Both the parent and the child have to be aware that the beating is required for discipline, not for revenge or torture.
  7. The child should not be beaten in delicate places such as the face or private parts.

Nonetheless, not all rules are not always recognized with same importance and everywhere, and while some (such as the rule that parents have to use other means of upbringing first) are generally accepted, others are more disputed.

Algerian law

As Tindouf Refugee Camps are located within the Algerian borders, it is also important to consider Algerian law. Algeria ratified the Convention on the Rights of the Child (CRC) and the African Charter on Rights and Welfare of the Child (ACRWC), both providing that physical punishment at home should be prohibited. According to Algerian Constitution, those conventions are superior to national law and can be invoked before national courts with superior authority to national legislation (Article 132 Algerian Constitution). This means that if national law is not in line with one of the conventions, the national court will set aside the national law and apply the Convention.

In 2015 the Algerian penal code was amended and some forms of domestic violence were prohibited. Some of those newly prohibited acts are:

  • intentionally injuring or beating a minor under sixteen years,
  • preventing the minor from food or care to the extent that the minor’s health is exposed to harm,
  • or any other act of violence against a minor. (Article 296 Penal Code)

However, acts that cause ‘light harm’ and result from actions of parent’s methods of disciplining a child are not prohibited and are considered to be part of the parents' fulfilment of their responsibilities towards the child in raising it and correcting its behaviour. Therefore, actions such as light spanking, are allowed.

But what constitutes light harm? Where is the line to be drawn between physical punishment allowed to discipline the child and violence? The answer is: it depends. Several factors such as the age and maturity of the child as well as other surrounding circumstances have to be taken into account. Allowing acts of light harm gives courts and social care  institutions flexibility to examine each case on its own merit. However, such a rule leaves a discrepancy between international law that Algeria is bound by, namely the CRC and the ACRWC, and national legislation.

Corporal punishment per country
SOURCE: End Corporal Punishment. (2021). Detailed report on corporal punishment per country [Interactive map]. End Corporal Punishment.

Conclusion

Are parents legally allowed to physically punish their children in the Tindouf camp? While in situations where parents inflict serious harm by using physical punishment it is easy to establish that such punishment is considered violence against the child and is prohibited, when talking about acts such as light spanking the answer is ‘it depends’.

It is conditioned upon which law you think is most relevant. If you consider SADR law relevant, such punishment is allowed. However, given the important role Sharia law play, both in the Sahrawi population in the camp and under SADR law, it would seem that physical punishment is allowed only if certain rules are respected. On the other hand, if you believe Algerian law is applicable, physical punishment would seem to be allowed as long as it only causes light harm. However, as Algeria is bound by both CRC and ACRWC that prohibit any type of physical punishment, and as such international conventions have ‘priority’ over national law, it could also be understood that no physical punishment is allowed.

By Tajra Smajic - 10 August 2021

Introduction
When conducting our research on the rights of the children in the Tindouf camps, we encountered the question whether parents are (legally) allowed to physically punish their children.

One of the universal human rights of every person, including every child, is to be protected from violence. But does light spanking by parents to ‘teach a child a lesson’ qualify as violence? And if not, where is the line to be drawn between physical punishment of the child that is allowed and violence against the child? Or is physical punishment by parents not considered violence at all?

Disciplining a child can be difficult and parents opt for different methods of disciplining their children. One of the oldest methods thereof is physical punishment, which nonetheless is becoming subject to increasing criticism. But what is the legal view on physical punishment of children?

While in most countries physical punishment (also referred to as corporal punishment) in certain settings is illegal, such as in school, care centres and detention, the number of countries prohibiting such punishment at home is significantly lower. As it would be impossible to analyse the law of all states in this blog, the question whether parents are allowed to lightly spank their children will be examined in light of international and regional children’s rights law. 

1. International children’s rights law
The most important international children’s right instrument is the Convention on the Rights of the Child (CRC). All countries in the world except United States have signed and ratified this Convention.

According to the CRC, states need to:

  • take measures to protect children from all forms of physical and mental violence (Article 19)
  • take measures to abolish traditional practices that may harm the health of children (Article 24(3))
  • ensure that disciplinary measures at school respect the child’s human dignity (Article 28(2))
  • ensure that children are not subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37(a)).

State parties to the CRC
SOURCE: Human Rights Indicators Work. (n.d.). Ratification of 18 International Human Rights Treaties [Interactive map]. United Nations Human Rights.

However, the CRC is a living instrument, meaning that its content should be interpreted and adapted to changes and developments in the society. And, while it does not explicitly prohibit physical punishment of children, the Committee on the Rights of the Child (whose role is to monitor the implementation of the Convention) stated in General Comment No. 8 that the Convention requires states to prohibit and eliminate all corporal punishment, including in the home. This means that any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light, is prohibited. While the General Comment is not legally binding, it is an authoritative soft law document clarifying the obligations of States under the CRC. 

Moreover, other important human rights bodies, such as the Human Rights Committee, the Committee Against Torture, the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women, all made recommendations to states to prohibit all physical punishment of children, including that at home.

2. Regional international children’s rights law

2.1 African Charter on the Welfare of the Child
Similar to the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child (ACRWC), ratified by 49 African states, aims at protecting children from violence. But does this include physical punishment?

The Charter requires states to undertake measures

  • to protect children from all forms of torture, inhuman or degrading treatment and abuse (Article 16),
  • to ensure that school’s or parental discipline respects the child’s inherent dignity (Article 15),
  • to ensure to the maximum extent possible, the survival, protection and development of the child (Article 5).

The Charter does not only impose obligations on the states, but also on parents, who have to ensure that domestic discipline is exercised with humanity, and that it respects the dignity of the child (Article 20).

The African Committee of Experts on the Rights and Welfare of the Child, which supervises the implementation of the ACRWC, in their statement on violence against children, held that physical punishment of children should be publicly condemned and eradicated. They also require states to adopt laws that prohibit all corporal punishment of children in all settings including the home, and for states to put in place implementation measures to achieve effective protection of children. According to the committee, custom, tradition, religion or culture cannot justify harmful cultural practices such as physical punishment.

However, the implementation of such a prohibition varies across African countries, and while some have prohibited physical punishment of children in all settings including that at home (such as South Africa, Kenya, South Sudan and Tunisia) other countries have not fully prohibited physical punishment in any setting (such as Botswana, Tanzania, Mauritania and Nigeria).

Corporal punishment per country
SOURCE: End Corporal Punishment. (2021). Detailed report on corporal punishment per country [Interactive map]. End Corporal Punishment.

2.2 Europe
Unlike in Africa, in Europe there is no convention or charter specifically aimed at protecting children. This means that in European human rights law, there is no single provision that explicitly prohibits corporal punishment of children.

However, this does not mean that physical punishment of children at home is allowed. Why so? Children bear the same rights as adults under regional human right’s instruments; the European Convention on Human Rights and the European Social Charter are particularly relevant in this regard.

2.2.1. European Convention on Human Rights (ECHR)
Physical punishment of children is not allowed under the ECHR, a convention that all European states are party to and that guarantees fundamental civil and political rights. This prohibition was developed through judgments in the legal cases of the European Court on Human Rights (ECtHR), which uses the ECHR.  The Court first ruled on physical punishment in 1978, on a case concerning physical punishment at school: Tyrer v. the United Kingdom. In this case the Court ruled that such punishment is in breach of Article 3 of the ECHR which prohibits torture, inhuman and degrading treatment and punishment.

In 1998, the ECtHR for the first time addressed a case of physical punishment at home.

The case,  A v. UK., was brought by a little boy who was hit with a cane by his stepfather. Initially, when the case was first discussed in national UK courts, the stepfather was under the defence of “reasonable chastisement”, and the national courts found that such physical punishment was allowed to discipline a ‘difficult child’. However, the ECtHR disagreed. They ruled that allowing for physical punishment at home was contrary to the prohibition on torture, inhuman and degrading treatment and punishment (Article 3 of the Convention), and concluded that this includes the prohibition of physical punishment of children in all instances.

However, a prohibition of physical punishment at home often encounters resistance in the society. Let’s take for example Sweden, which was the first country to prohibit physical punishment of children at home, already in 1977. The reaction to the ban was divided, and some parents believed that such ban interferes with their right to private and family life and freedom of religion. Some parents even brought the matter in front of the European Commission on Human Rights, the ECtHR predecessor. Nonetheless, the Commission found that such a ban neither interferes with the private and family life, nor freedom of religion, and held the case inadmissible. In such way, the Commission paved the way for other European states to implement a ban on physical punishment of children at home.

2.2.2 European Social Charter (ESC)
Physical punishment of children is also prohibited by the European Social Charter which guarantees fundamental social and economic rights and which applies to all European states.to which all European states are party to. Article 17 of the ESC requires states to protect children and young persons against negligence, violence or exploitation and encourage the full development of their personality and of their physical and mental capacities.

The Committee stated that states are required to create law that is sufficiently clear, binding and that specifies the prohibition of any form of violence against children, including physical punishment at home. (see this case).

2.3 Other regions
Outside of Africa and Europe there is no regional law prohibiting physical punishment.

While the Inter-American Court of Human Rights rejected the request by Inter-American commission on Human Rights to issue an advisory opinion on physical punishment of children, the Court did argue that “children have rights and are an object of protection”, that they have the same rights as all human beings, that the state must protect these rights in the private as well as the public sphere, and that this requires legislative as well as other measures.

While not binding, the Inter-American Commission on Human Rights issued a Report on Corporal Punishment and Human Rights of Children and Adolescents recommending states to prohibit all physical punishment of children, including that at home.

In North America, physical punishment of children remains legal. However, in Latin America most countries have specific legislation prohibiting such punishment, at home including Argentina, Bolivia, Brazil, Costa Rica, Honduras, Nicaragua, Paraguay, Peru, Uruguay and Venezuela.

In Asia, there is no regional law concerned with physical punishment of children, and whether physical punishment of children at home is allowed, depends on the national law of different Asian countries.

3. Conclusion
Is it allowed to physically punish your child? Under international and, where applicable, regional children’s rights law, the answer would be no. Such punishment, regardless of how light or severe, is illegal according to the Convention on the Rights of the Child and regional instruments such as the African Charter on the Welfare of the Child or the European Convection on Human Rights. However, this legal prohibition on the international level is not always reflected in national laws. Sometimes it is even contradicted by national laws explicitly allowing for physical punishment of children.  Therefore, in reality the legal situation remains different due to the discrepancies existing across different national laws.

If you are interested in what this means when talking about unrecognized states, look into our next blogpost where we will examine whether parents are allowed to use physical punishment as a way of disciplining their children in the Tindouf refugee camps.

By Victoria van Heesewijk - 20 July 2021

In February 2020, researchers Marieke and Florentina visited the Sahrawi refugee camps in Tindouf, Algeria for the first time and started a case study on the child’s right to live free from any form of violence. Subsequently, many different people were involved in the study including a group of students. In this video, MaRBLe student Victoria will introduce you to the research process and research methods of investigating this right in the camps.

By Florentina Pircher - 19 May 2021

Every child has certain universal human rights that should always be protected, right? But who is supposed to grant them these rights and afterwards protect them? Normally, states are responsible for protecting the rights of children living in their territory (whether they are citizens or not). But what if a state delegates this responsibility to somebody else, or if a state is not recognised by the international community? An example of such a situation can be found in the Tindouf refugee camps in Algeria. The camps are governed by the Sahrawi Arab Democratic Republic (SADR), but not every state accepts that this Republic is a proper country. This also means that it cannot become a member to international conventions, such as the ‘Convention on the Rights of the Child’. That is why when writing my bachelor thesis, I decided to look at this situation a bit more closely and explored the research question ‘Who is responsible for the international human rights of Sahrawi people living in the Tindouf refugee camps?’. In this post I will focus specifically on children’s rights. 

Context – The Tindouf Refugee Camps  
Of course there is a lot to I could say about the history of the Tindouf camps, but essentially what is relevant for this blog post is this: The people living in the Tindouf refugee camps are members of the ‘Sahrawi people’, a nomadic people from Western Sahara. When the territorial conflict about Western Sahara erupted into violence in 1976, they fled just across the border to the Tindouf area in Algeria. The United Nations refugee agency UNHCR has recognised that the Sahrawi people living in the Tindouf camps have the legal status of being refugees. The camps are controlled by Polisario, the liberation movement of the Sahrawi people, which is fighting for the Sahrawi’s claim to the territory of Western Sahara. In 1976, the Polisario proclaimed the SADR as an independent state, which is considered an unrecognised state. Although quite a few countries, as well as the African Union, recognize the SADR, not all countries do and therefore it is unable to sign most international treaties. Therefore, the camps are inhabited by a population of refugees that lives under what most of them consider their own government, but others consider to be an unrecognised entity, not bound to respect children’s rights.

The Issue – Non-State Actors and Why They Matter
Usually, when considering who is responsible for someone’s children’s rights, we turn to the state that is in control of the territory or the children in question. In the case of refugees, the international legal system sets out that the state which they are in must guarantee the refugees the same rights as its nationals.

This means that according to the existing framework Algeria, as the camps’ host state, is considered the primary actor in this scenario. It also has ratified various conventions, including the ‘Convention on the Rights of the Child’ (CRC) and the ‘1951 Convention relating to the Status of Refugees’. This means that Algeria has responsibilities such as treating nationals and refugees alike when it comes to access to elementary education and other public services. At first sight, the situation is therefore quite clear, Algeria is responsible for the international children’s rights of the Sahrawi children living on its territory, right? Yes, but…

From early onwards, Algeria has delegated all responsibility over the camps to Polisario. They recognize the SADR as an independent state, and the Polisario as its government. This means that Algerian authorities are not present in the camps and do not, for example, provide education in the camps. It happens surprisingly often that people find themselves in a situation in which not a state, but another type of actor is making the calls when it comes to their children’s rights protection. This is also the case with the Sahrawi refugees in the Tindouf camps which is why considering Algeria alone as responsible is not very useful from the perspective of a child living in the camps. However, since not all countries recognise the SADR as a country, internationally it is usually seen as a ‘non-state actor’. This term is usually used for bodies that are not states but still relevant in the international legal community, such as international organisations like the United Nations, corporations or armed opposition groups. They cannot become a signatory to conventions like the CRC. Nevertheless, it is increasingly accepted that non-state actors should also be responsible for the rights of the people they are in control of. Legally speaking, the International Court of Justice has accepted this possibility, as long as the actor in question has ‘international legal personality’. Whether a non-state actor will fulfil this qualification, and which obligations it has if it does, depends on the actor’s purpose and function. This still sounds quite vague so to put it more concretely, here are some of the obligations that non-state actors could (or should) be bound by:

  • Obligations arising out of exercising effective control over people or territories: An actor exercising government-like functions should be bound by children’s rights norms when what they do can affect the rights of the children under their control. For example, when a governing body is in control over water supply, they have to make sure that access to this water is equally accessible to all children.
  • Self-imposed obligations: Many non-state actors actually voluntarily declare that they will adopt certain human and children’s rights standards. Arguably this can give rise to the actor being internationally obliged to respect these standards.
  • Ius cogens norms: These are rules of international law that must be complied with at all times and cannot be derogated from, no matter by whom. The argument is that non-state actors with international legal personality should also have to follow the generally accepted rules within which they operate. Some of these rules are human rights norms, for example the prohibition of torture.

Human Rights Obligations for Polisario?
These obligations should also apply to Polisario (the Sahrawi governing body). Firstly, it has international legal personality based on its role of representing the Sahrawi people, as accepted by the UN, and secondly, it exercises actual control over the Tindouf camps and its inhabitants. This control is in many ways similar to the control a regular government usually has over a country (deciding who gets to enter, applying its own criminal and juvenile law, etc). Therefore, this almost complete control over the camps could be a reason to hold Polisario responsible for certain children’s rights obligations. This is supported by the fact that Polisario, or rather the Sahrawi Arab Democratic Republic, the state that Polisario proclaimed, has ratified the ‘African Charter on Human and People’s Rights’, although not the ‘African Charter on the Rights and Welfare of the Child’. It also has its own human rights catalogue included in its constitution, which contains the right to free education and the obligation to ensure protection for children. These ‘national’ or regional commitments to human rights can arguably also give rise to international obligations in the field of children’s rights.

As you can see summarised in this chart, there is a lot of room for seeing Polisario responsible for certain rights of Sahrawi children, in addition to the obligations of Algeria. 

Still, whether non-state actors can have children’s rights obligations remains disputed by some. Looking at the goals that international children’s rights law is supposed to achieve however, it seems like denying that Polisario can hold certain children’s rights obligations bypasses the reality of a child living in the camps and experiencing almost exclusively the governance of Polisario. Children’s rights are supposed (a) protect children and (b) apply to every child equally, independent of nationality. Consequently, if children’s rights are supposed to protect every child equally, they should also be granted to those living under the control of a non-state actor.

If you want to know more about the situation in the Tindouf camps, then follow our upcoming posts and vlogs from our field research trip!

You can read my complete thesis on this subject here.

A map of the territory of Western Sahara and the Tindouf camps.
SOURCE: Omar-Toons. (2011, 15 March). Western sahara map showing morocco and polisaro [Illustration]. Wikipedia

Who is responsible for providing education in the Tindouf camps?
SOURCE: Ammi, L. (2018). Sahrawi refugees in Algeria [Photograph]. European Union

Water tanks in the Tindouf camps.

In my original bachelor thesis, I also analysed the role of other actors present in the Tindouf camps. Anyone interested in reading the full version can find the complete paper here.


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