Children and transitional justice





Several transitional justice mechanisms established in recent years have explicitly addressed child-related issues. Truth commissions in Guatemala, Peru, Sierra Leone, South Africa and Timor Leste, as well as mixed tribunals such as the Special Court for Sierra Leone, have dealt with crimes against children and involved children as victims and witnesses. Accountability for grave crimes against children is also an important component of the work of the International Criminal Court (ICC), including the first trial of Thomas Lubanga Dyilo on charges of enlisting and conscripting children under the age of fifteen years. In addition, traditional justice mechanisms have involved children for purposes of accountability and reconciliation. This recent focus on children in transitional justice processes creates opportunities and challenges for legal experts and child rights advocates working together to protect children from the atrocities of war.

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.

Background

In September 2002, the UNICEF Innocenti Research Centre (UNICEF IRC) and No Peace Without Justice (NPWJ) published the study International Criminal Justice and Children, which provides an overview of the international legal protection framework and serves as a practical guide for the involvement of children in justice and truth-seeking mechanisms. Building on the 2002 study, UNICEF IRC continued its research on transitional justice and children to document and analyse emerging good practices and lessons learned on the protection of the rights of child victims and witnesses. A key objective of the work, carried out in collaboration with UNICEF Headquarters and Field Offices, and UN and NGO partners, was to ensure that child victims and witnesses are not exposed to further harm by their involvement in transitional justice mechanisms.

In November 2005, with support from the Canadian Human Securities Program, UNICEF IRC convened an Expert Discussion on Transitional Justice and Children, bringing together a unique group of experts from the International Criminal Court and other international tribunals, truth commissions, national juvenile justice systems, UNICEF Headquarters, Regional and Country Offices, international NGOs and academic institutions, to review experience on children's involvement in truth, justice and reconciliation processes. The meeting adopted important recommendations on safeguarding the rights of child victims and witnesses, as well as addressing the issue of accountability of alleged child perpetrators.

Children and Truth Commissions
The study, Children and Truth Commissions, co-authored by the UNICEF Innocenti Research Centre (IRC) and the International Center for Transitional Justice (ICTJ), was published by UNICEF IRC in March 2010. The findings were reviewed and further developed during two expert discussions on children and transitional justice, in 2007 and 2008.

The publication is intended to inform the work of truth commissions, child protection agencies and organizations, legal experts, child rights advocates and other professionals in their efforts to protect the rights of child victims and witnesses, and to engage children as partners in truth, justice and reconciliation processes. The research, documentation and analysis of good practices presented have benefitted from the expertise of practitioners, academics and legal experts. This broad range of experience has, in turn, informed the recommended steps for children's participation in future truth commissions.

This study reviews a number of challenges posed by children's involvement in transitional justice processes. It does not provide easy answers but seeks instead to generate substantive interest among child protection agencies and child rights advocates, in collaboration with legal experts and truth commission staff. It is hoped that many of the issues raised here will be a source of discussion and debate in future efforts. Further research and documentation of the work of existing and future truth commissions, as well as other transitional justice mechanisms, will help to deepen the knowledge and understanding of the opportunities and challenges presented by children's participation in efforts towards building a more just and peaceful future.

Working Paper series on Children and Transitional Justice
The UNICEF IRC Expert Paper Series on Children and Transitional Justice was launched in 2007 in close collaboration with UNICEF NY. The Series is intended to generate dialogue and consensus, and to better inform children's protection and participation in ongoing or planned transitional justice processes in diverse country situations. Based on concrete experience, the papers document and identify challenges, dilemmas and questions for further debate and formulate recommendations to better protect the rights of children involved in transitional justice processes.

A specific objective - and challenge - of the series is to identify topics in the field of transitional justice that are essential in establishing a foundation for expertise on children. The experimental and innovative nature of research in the series has created broad interest and visibility, helping establish a child rights-based approach to transitional justice that addresses advocacy, policy and programme agendas in UNICEF and among partners.

Children and transitional justice: a collaboration between UNICEF IRC and the Human Rights Program at Harvard Law School
In 2008, the UNICEF Innocenti Research Centre and the Human Rights Program at Harvard Law School initiated a collaboration on children and transitional justice. This led to a conference on Children and Transitional Justice co-convened by the UNICEF IRC and the Human Rights Program of Harvard Law School in April 2009 to consolidate ongoing research and further the debate on emerging issues. During the conference, key principles to protect the rights of children participating in transitional justice mechanisms and processes were identified. The Key Principles are intended to better inform the protection and participation of children in truth, justice and reconciliation processes and serve as groundwork for further elaboration and consensus-building on the role of children in transitional justice.

Another outcome of the collaboration between the UNICEF IRC and the Human Rights Program at Harvard Law School is the book Children and Transitional Justice: Truth-telling, Accountability and Reconciliation by Harvard University Press in March 2010.

Child and Adolescent Participation: A Rights-based Approach
Safeguarding the rights of child and adolescent witnesses and victims in transitional justice mechanisms is an emerging issue within the UNICEF child protection (CP) and adolescent development and participation (ADAP) agendas. The participation of children and adolescents in truth, justice and reconciliation processes is not, however, an isolated event. Their participation is situated in a rights-based perspective, building capacity for young people to engage as key partners in the process. Strategies to involve children and adolescents as active citizens in post-conflict situations are integrated with family, school and community relationships.

The rights-based approach is holistic, addressing the root causes of conflict, and situated within cultural, social, economic and political contexts. While the limits of participation will depend on numerous factors - e.g. the evolving capacities of the child, the risks and available resources - the principle of participation means that children are engaged and their views are taken into consideration when making decisions that affect them. This holistic framework is important when assessing potential impacts and risks and anticipating steps to protect the rights of children involved.

Ideally, the participation of children in community activities should strengthen their protection and the protection of children should enable their participation. Effective participation and protection can help to break the cycle of violence and prevent future conflict and instability. However if the link between participation and protection is not balanced and supported it may result in greater risks. In the case of child and adolescent involvement in truth, justice and reconciliation processes, this ‘thin red line' between protection and participation needs to be carefully weighed so that participation is informed, guided and sustainable.

When assessing the risks of child and adolescent participation in truth commissions, the potential long term risks of excluding young people from the process must also be considered. When children become involved, it is important that goals are realistic so that child and adolescent participation will not result in frustration or disappointment, but will create opportunities and reinforce the ‘protective environment'. In the long term, the political views of children need to be heard and respected.

In 2007, in support of a rights-based approach to involving children in transitional justice processes, the UNICEF Innocenti Research Centre undertook the preparation by UNICEF IRC of the Child-Friendly UN Guidelines on Justice in Matters Involving Child Witnesses and Victims of Crime. The Child-Friendly Guidelines, prepared in collaboration with UNICEF HQ, UNODC and the International Bureau for Child Rights (IBCR), address special protection for child witnesses and inform children as actors in the process. They advance the understanding of safeguards for children's involvement in transitional justice mechanisms. The Child-Friendly Guidelines were launched in April 2007, at the Crime Commission, in Vienna and are available in all official UN languages

Support to UNICEF Country Offices engaged with issues of transitional justice
Another component of the research on children and truth commissions is direct work with UNICEF Country Offices that are addressing issues of transitional justice and, specifically, truth commissions. In 2006 and 2008, further work was undertaken in Monrovia in support of the Liberian Truth and Reconciliation Commission, helping to articulate the policies of the Commission with regard to the protection of child victims and witnesses and engaging in direct field testing of research findings related to children and truth commissions. This provided an opportunity to develop recommendations in a practical context, also engaging UNICEF Country Office colleagues and partners in the analysis. In 2008, a workshop on children and truth commissions was convened, in collaboration with UNICEF Nepal, in anticipation of a truth commission called for in the 2006 comprehensive peace agreement.

The participation of children and young people provides a crucial element throughout the research. This has been most prominent in the engagement of children as partners in the preparation of the children's version of the Sierra Leone Truth and Reconciliation Commission report. It has also been a key element in discussions and activities to support the Liberian Truth Commission.

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