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.
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. It is intended to foster a dialogue between child rights advocates and experts in international criminal law, addressing key issues related to accountability for crimes against children.
Building on the 2002 study, UNICEF IRC is currently pursuing 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 underway, carried out in collaboration with UNICEF Headquarters and Field Offices, and UN and NGO partners, is 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, the 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 process. 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
Upcoming publication on Children and Truth Commissions
The collaboration between UNICEF IRC and the International Center for Transitional Justice (ICTJ) to undertake research on children and truth commissions was initiated in 2006. The work was proposed as an outcome of the UNICEF IRC Expert Discussion on Transitional Justice and Children, convened in November 2005. The immediate task is to document and analyze good practices and lessons learned, and to recommend strategies to improve and facilitate children's participation in future truth commissions. Because the issues are new and policy formation is moving forward quickly, it is possible to pursue research while the experience of children's participation in truth commissions takes shape, and to influence the outcome of efforts underway.
The work is being carried out in partnership with ICTJ and a wide network of international experts, within a broad framework of collaboration with UNICEF HQ and field offices. While engaging topnotch legal expertise, the study ensures that children's interests are foremost on the agenda. The collaboration with informed partners has also generated dialogue on emerging and controversial issues. The outcome will be a joint publication by UNICEF IRC and ICTJ, Children and Truth Commissions, in 2007. The purpose of the upcoming publication is to support truth commissioners and truth commission staff, child protection agencies, legal experts, and other professionals in their efforts to develop child-friendly procedures in post-conflict accountability mechanisms, and ultimately to build consensus on steps forward. It also seeks to enable children, families and communities to participate more effectively in truth, justice and reconciliation processes.
Expert Paper Series on Children and Transitional Justice
In the process of research on children and truth commissions a number of key issues have emerged where more thorough analysis is needed to better understand the potential and the limits of children's participation in transitional justice processes. In order to provide in-depth study on these issues, UNICEF IRC and ICTJ are launching an expert paper series on Children and Transitional Justice. Topics to be addressed include: i) Children, Education and Reconciliation, ii) Children and reparations, iii) Children and criminal responsibility, iv) Children and local justice mechanisms, v) Children's Hearings in the South African Truth and Reconciliation Commission, vi) Children, youth, and gender roles in transitional justice contexts, vii) Transitional justice in Sierra Leone, comparison and complementarity, viii) The role of child protection agencies in transitional justice processes, ix) Psychosocial support for children involved in transitional justice, x) Adolescents and economic opportunities in post-conflict, xi) Security sector reform and children. These issues have been identified as representing the current concerns and controversies among experts of international law and human/child rights.
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, two missions were undertaken to 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. This provided an opportunity to test the recommendations in a practical context, also engaging UNICEF Country Office colleagues and partners in the analysis. Currently discussions are ongoing with other UNICEF offices where it is anticipated that truth commissions will engage children as victims and witnesses in post-conflict transition.
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. For example, UNICEF IRC collaborated with UNICEF Liberia in coordinating a link between children and young people in Sierra Leone and Liberia to help inspire and catalyze the young people of Liberia in taking a role in the Commission's work.
Child Friendly UN Guidelines on Child Witnesses and Victims
A concrete outcome, in follow up to the Expert Discussion on Transitional Justice and Children (November 2005), is 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 protections for child witnesses and inform children as actors in the process. They are linked to the UNICEF IRC research underway on children's involvement in truth commissions, advancing 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.
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 also must 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.
Guided by its research, IRC is providing ongoing support in negotiating an Interagency Programming Framework for young people's development and participation in emergencies and transition. The Framework will bridge research, documentation and lessons learned in programming and policy to better protect adolescents in situations of crisis, and to build their capacity to become a positive force in improving their own protection and in contributing to reconciliation and to the rebuilding of their communities.