Children and Transitional Justice
The world has witnessed a growing threat of armed conflicts and 'internal wars' over the past 15 years. Children are among those most affected and, in many instances, they have been targeted for killings, disappearances, under-age recruitment, sexual violence, torture and other grave violations of their fundamental rights.
There is a growing global consensus on the need for accountability mechanisms to address human rights violations committed during armed conflict, including a specific focus on crimes against children. Accountability in post-conflict situations fulfils a number of important functions. The investigation and documentation of violations committed can help to restore confidence in the rule of law and raise public awareness of the impacts of conflict on children. When accountability is combined with processes of reconciliation, it can help to break the cycle of violence and strengthen the legitimacy and authority of the new government. It may also contribute to the process of healing and provide a foundation and framework for a more stable and just society and democratic institutions.
In recent years, truth, justice and reconciliation processes have begun to focus specifically on crimes committed against children and have involved children proactively, including through testimony that bears witness to their experiences. The reason to involve children in transitional justice processes is two-fold:
- Children are victims and witnesses of crimes committed and therefore have an important role in providing statements and testimony. Recently children and adolescents have demonstrated their unique capacity in providing testimony to international and national courts and truth commissions. But if children are to engage in transitional justice processes their rights must be respected. It is therefore essential that child-friendly procedures are developed and legal safeguards are established to protect children's rights in the context of their involvement in transitional justice mechanisms.
- Children are family members and citizens of their community and therefore are key actors in accountability and reconciliation processes. The engagement of children and adolescents in transitional justice processes, when properly supported and guided, can help to build the capacity of young people for active citizenship in post-conflict transition, also laying the foundation for a more just and peaceful society.
- The research project at UNICEF Innocenti Research Centre
The overall objectives of UNICEF IRC work on children and transitional justice is to provide the evidence base to improve accountability for crimes against children and to protect the rights of children involved in transitional justice processes. By assessing and analyzing the work that has been undertaken and identifying strategies for the engagement of children in truth, justice and reconciliation processes, it will be possible to build consensus on the way forward, to improve accountability and to promote reconciliation in the aftermath of war or where grave violations have occurred.
Linked to the commitment to improve accountability for crimes against children is the urgent need to develop child-friendly procedures to protect the rights of children involved in transitional justice mechanisms. The need is twofold: to assist legal practitioners in facilitating and protecting children's involvement; and to provide guidance for UNICEF and partners in their interactions with and support to those mechanisms.
What is transitional justice?
Transitional justice refers to the "full range of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuses in order to ensure accountability, service justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof." (UN Security Council, The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General, 23 August 2004 (S/2004/616), para. 8.)
Transitional justice processes are based on a human rights approach and rely on international human rights and humanitarian law in demanding that states halt, investigate, punish, repair, and prevent abuses. A consistent focus on the rights and needs of victims and their families is important in all instances.
Transitional justice processes include:
- Domestic, hybrid, and international prosecutions.
- Truth-telling initiatives to determine and document abuses that have occurred.
- Promoting reconciliation within divided communities.
- Reparations to victims, including individual, collective and symbolic reparations
- Constructing monuments and memorials to educate future generations
- Institutional reform, including the vetting of public institutions.
The appropriate form of accountability for alleged child perpetrators is a source of ongoing consideration and debate. Based on the Rome Statute of the ICC, the Special Court for Sierra Leone and the practice of the ad hoc tribunals, there is an emerging standard that children under 18 are not held criminally responsible in international tribunals or courts for grave violations of IHL (war crimes, crimes against humanity, genocide). This is because prosecutions are generally sought for those 'bearing greatest responsibility' for systematic violations, and children are not among those bearing greatest responsibility for crimes of war.
In the aftermath of war or brutal human rights abuses, there is no one answer or formula to achieve accountability, justice and reconciliation. Transitional justice processes are likely to be most effective when combined with other accountability processes, including criminal proceedings, reparations programmes and institutional reform.