INTRODUCTION

Throughout history, children have suffered disproportionately in armed conflicts. However, recent trends towards civil war and internal conflict rather than armed conflict between organised state armed forces seem to have put the civilian population in increasingly dire situations. In recent decades issues such as the flow of small arms, the proliferation of armed groups and the use of indiscriminate weapons have all led to increased vulnerability for children. Obviously, modern communications technology has also increased global awareness regarding issues affecting children in armed conflict.

In considering the needs for recovery and reintegration of war-affected children, there are distinct groups and needs that can be identified: the larger group of war-affected children in general, and those with specific protection concerns. When researching the impact of today's conflicts on children, a number of issues come up. The first very visible and tangible impact is that on infrastructure and services that provide for the basic necessities to ensure the right to life and development for children.This includes access to water, food, health and education. But children are also affected emotionally and sometimes psychologically, which needs to be considered not only in the immediate response to humanitarian crises but also in their long-term development. Specific protection issues that may have arisen due to the conflict include family separation, child recruitment, trafficking, abduction and gender-based violence, to mention but a few. Some of these are international crimes, where children are victims and also witnesses and perpetrators of crimes. It is in relation to these issues that transitional justice questions become particularly relevant, as does the extent to which current normative frameworks have been able to grapple with them.

The purpose of this chapter is to analyse the international legal framework applicable to recovery and reintegration for war-affected children, and to identify some of the gaps and current issues in this regard. I will be looking at a postconflict scenario, hence mostly considering situations where international humanitarian law has ceased to apply and as such the Convention on the Rights of the Child (CRC) and its Optional Protocol on the Involvement of Children in Armed Conflict (OP-CAAC) are the key reference documents.

RULE OF LAW AFTER WAR AND CRISIS

This book concerns the norms, ideologies and methods of rule of law reform in war-torn and crisis societies. The main objective is to describe and analyse the effects of international rule of law assistance on legal, judicial and administrative systems. Rule of law reform is the vehicle through which international law and national domestic laws, practices, and institutions variously intersect, collide, interact and harmonise. International interventions play an important part in diff using norms and institutions and bring to the fore a new object of study namely transitional legal orders in war-torn and crisis societies.

Rule of law has emerged as a constituent part of international crisis management. From Haiti to Egypt, from Afghanistan to Liberia, international actors now speak of the fundamental need to strengthen the rule of law for the realisation of a successful transition from war to peace. In order to achieve the twin objectives of a legal system and a political culture embedded in rule of law principles, international actors often assume a direct political and administrative state-building responsibility. Failure to establish the rule of law in a war-torn or crisis society may constitute a serious threat to both national and international security. Sustained instability contributes to organised crime, corruption, trafficking, environmental degradation and weapons proliferation. De facto ‘statelessness’ and proliferating poverty between them aff ord safe havens for the propagation of criminal and terrorist networks.

It should be made clear from the start that no assistance provider would expect that laws and legal institutions subscribing to rule of law principles would be capable of solving such problems alone. However, the faith placed in the rule of law, a concept that Aristotle spoke of as “a government of laws, not men”, and which Cicero realised bound humans “so that we might be free”, is a notion that is sometimes astoundingly devoid of realism. The concept of the rule of law (as presented and applied by international organisations and national donors) renders unto itself an excessively large claim.

Today it is possible to refer to a ‘rule of law consensus’ among international actors in relation to war-torn and crisis societies.

INTRODUCTION AND BACKGROUND

While many children are involved in wars today, it is equally important to account for those children who are involved in organised armed violence. In doing so we can understand the true nature of the problem of how armed children and young people are affected socially, economically and politically in the region as a whole.This chapter deals with girls and young women who are involved in armed conflicts and organized armed violence in Latin America. We will adopt a sociology of law perspective and will look at the interrelation between gender, age, class and ethnicity. Some insights are drawn from the feminist concept of intersectionality (Yuval Davis) and the concept of gender advanced by Ramazanoglu and Holland, while other ideas come from feminist child law (Bridgeman and Monk) and the dilemma of the girl child in international human rights law. Some of the questions being addressed from a gender perspective include: Why do girls join the armed forces and become members of armed opposition groups in the first place, and what roles do they play as members? And on a more general level, are there any differences between the processes of recruitment into armed conflict and juvenile gangs, which are involved in organised armed violence? Our study is based on a number of sources, including reports from international organisations (United Nations, UNICEF and UNIFEM, as well as the OAS and UNESCO) and from international and national NGOs (particularly Human Rights Watch, the Coalition to Stop the Use of Child Soldiers, Save the Children and Amnesty International).

INTRODUCTION: AN OVERVIEW OF TRANSITIONAL JUSTICE AND CHILDREN

Despite the large-scale victimisation of children and youth in conflict and postconflict settings, transitional justice mechanisms have traditionally paid little attention to their needs. Even though some truth commissions have focused and shed light on abuses committed against children (for instance, the Sierra Leone Truth and Reconciliation Commission), these violations have usually been framed as an outcome of violence largely experienced and perpetrated by adults. The pioneering research activity conducted by Graça Machel on the ‘Impact of armed conflict on children’ has spread awareness on the fact that ‘war violates every right of the child’ and pawed the way to a child-sensitive approach to post-conflict issues. The work carried out by the South African Truth and Reconciliation Commission (TRC) has had valuable reverberations also in this regard, pointing out the position of children as a direct target of discriminatory apartheid policies and stressing the consequent necessity to deal with this legacy. Even though the Human Rights Violations Committee of the TRC did not directly involve children in its hearings, owing to concerns regarding their safety and the possibility of a retraumatisation of the young victims, it has triggered a major debate on the way, and extent to which, transitional justice mechanisms should take into account children's experiences in order to address their needs. Moreover, truth commissions may be able to offer children a forum in which they can actively participate in and contribute towards formulating transitional justice strategies.This opportunity, however, raises at the same time several doubts as to how to identify what transitional justice practices are best suited to participation by children. Further questions to be answered concern the potential risks of children's involvement in truth-seeking mechanisms as well as the protection measures that need to be adopted, the suitability of forms of accountability for youth previously involved in violence and the most opportune reintegration and rehabilitation measures.This represents an underexplored research field, which needs new contributions aimed at answering the abovementioned questions. Challenges regarding the linkage and involvement of children in transitional justice can also be seen as opportunities not to be missed.

INTRODUCTION

Although clashes between social groups are as old as mankind, the characteristics of warfare and how it is conceptualised have changed through history. During recent decades, a shift has become clear from wars between states to conflicts within states, which appear to be characterised by a mixture of political, economic, military and social forces in competition for power and scarce resources, thereby violently targeting civilians who now compromise up to 90 per cent of war casualties. The case of the Democratic Republic of the Congo, the focus of this paper, is a striking example of such contemporary prolonged conflict, frequently referred to as a ‘Complex Political Emergency’ (CPE).

Following these changed dynamics and conceptualisations, the international community has simultaneously been confronted with the limitations of its traditional humanitarian principles and approaches. Subsequent to past failures when intervening in CPEs, new ideas of development relief and conflict sensitivity have arisen, introducing ‘community-based’ as the new buzzword in the intervention field. While these new trends have stimulated humanitarian agencies to broaden their scope into maximising contextual conditions for sustainable peace and development, they have equally been criticised for entailing unintended consequences, reproducing structural inequalities and providing simplified and unsustainable solutions.

Within this ‘new aid paradigm’, the mental health of war-affected societies has gained attention, as psychological problems in civilians, resulting from their massive exposure to violence, have been increasingly recognized as threats to the development and long-term security of society. Firstly, psychologically and socially well-functioning people and societies are considered an essential prerequisite for the rehabilitation and rebuilding of political, social and economic institutions. Secondly, as is confirmed in recent findings on the association of post-traumatic stress symptoms on the one hand with feelings of revenge and negative attitudes towards reconciliation on the other, mental health problems could undermine peace-building processes and may eventually lead to renewed or sustained violence.

THE WAR IN NORTHERN UGANDA

At the beginning of the last century, 80 to 90 percent of war casualties worldwide were military personnel and 10 to 20 percent were civilian and unarmed. By the end of the century, these figures were reversed. Today, in northern Uganda and elsewhere, armed conflicts and civil wars have blurred the distinction between “combatants” and “civilians”, and “civilian” itself is a diffuse and broad category of non-combatants who are living in the midst of conflict. Frontlines are not easily defined and non-combatants are often targets of harassment and deadly violence.

In northern Uganda, more than two million people were displaced from their homes as a result of the conflict between the northern Ugandan Lord's Resistance Army (LRA), led by rebel leader Joseph Kony, and the Government of Uganda, headed by General Yoweri Museveni. From 1986 to 2006, the rhythm of the war in northern Uganda has been an uneven one, with sometimes long periods of lull in the fighting and rather peaceful times during which people could lead an almost “normal” life, working in their gardens and travelling rather safely on the roads. In 2005, however, nearly 90% of the population in Gulu, Kitgum and Pader Districts, those most affected by violence, had relocated into camps for internally displaced people. The IDP Camps have often been described as a scenario of extremely poor, even inhuman living conditions, dominated by military restrictions and impoverishment, where all aspects of life were severely affected, resulting in generally high vulnerability and dependency on support from outside. In the pre-displacement setting, every family lived in its own compound, and in the evenings family members gathered by the fireplace to share supper and for traditional teaching. The displacement characterised by overcrowded camps and lack of security resulted in destruction of the social fabric, with people living in a “state of fear and anxiety”. Youth could hardly access educational facilities and had almost no means of generating an income, which led to self-destructive practices such as drinking alcohol, unprotected sex and early marriage.

INTRODUCTION

Latin America has been the region of the world in which Transitional Justice has had the earliest and largest case studies. Not only because the term was coined in the middle of the first wave of political transitions in the region – the Southern Cone experience, but also because during the last 30 years countries and societies have tried different approaches to addressing a past of violence and, at the same time, to testing the strength of their own democracy and institutions. Although there is sufficient empirical evidence about the terrible impact of violence on children, they have not been a relevant actor in the definition of transitional justice policies, both from the perspective of victimhood and from the horrible consequences of being involved in the conflict. However, children have been severely affected by the violent practices of dictators, merciless guerrilla leaders, the leniency of states and by abusive armies. They have been told, again and again, that they must learn not to cry.

The importance of furthering efforts to support children's involvement in transitional justice processes was identified during an expert discussion on Transitional Justice and Children convened by the UNICEF Innocenti Research Centre (IRC) in November 2005. As an outcome of the meeting it was proposed that research on children and truth commissions be undertaken, identifying good practices and lessons learned, and recommending strategies to improve and facilitate children's participation in future truth commissions. UNICEF and the International Center for Transitional Justice (ICTJ) initiated a process of documentation on the role of children in truth commissions. Different documents can be consulted to expand on this general approach.

This chapter will analyse the ways in which truth commissions in Latin America have tackled the issue of children, taking into account the quite different scenarios of political “transitions”, from the classic transit from a dictatorship to a democracy to the application of transitional justice measures to an ongoing conflict situation. It will review the main findings of these truth-seeking and truth-telling mechanisms in Argentina, Guatemala, Peru and Colombia, with some references to other Latin American countries.

INTRODUCTION

Since the year 2000 more than 15,000 separated children1 have entered the UK seeking asylum. Many of these children and young people have fled war, enduring traumatic events and losses. Once in the UK, they face secondary stresses such as navigating welfare and legal systems that are often incoherent, inconsistent and unsettling. As a result, the already complex process of rehabilitation in exile is made even more difficult.

In response to the issues that young separated refugees face, Dost, meaning friend, was set up nine years ago. Dost is based within the communal space of the Trinity Centre, a community centre and independent charity in East London; it is used by individuals of all ages and backgrounds for education, recreational purposes and support services. Within this community setting Dost aims to provide psychosocial assistance to vulnerable children, including young refugees separated from their families and fleeing violent conflict. A holistic approach is necessary as the needs of separated children, like those of all children, are multiple and interdependent. To this end, Dost provides education, play and youth work, and advice and advocacy (casework).

The first section of this paper will investigate in depth how Dost's flexible casework model therapeutically benefits young separated refugees who are new to the UK. A central aim is to elucidate the subtle multiplicity of factors needed to aid the psychological recovery and social rehabilitation of war-affected children. The paper will go on to explore how the wider framework of Dost and the Trinity Centre strengthens the casework model's ability to provide psychosocial support. Dost's other integral services of education and play offer young separated refugees the opportunity to access community and natural healing processes. Moreover, the relationship that children and young people are able to build within the Trinity Centre's space, as well as the intergenerational interaction that can take place within the community context, is fundamental to social rehabilitation processes.

This paper makes use of anecdotal evidence accrued over the past three years working with war-affected children separated from their families. Quotes from young people are from semi-structured interviews conducted for the purposes of an ongoing piece of research relating to belonging and community.

INTRODUCTION

The two preceding chapters were the subject of discussion on methods applied in law reform, constitution-making and institutional reform. This chapter examine the question of accountability and effectiveness of rule of law reform.

There is a fundamental paradox in rule of law assistance, particularly in situations where international actors exercise a form of executive power. While they promote reforms with intent to achieve judicial independence, the supremacy of law, the separation of powers and increased access to justice, statebuilding missions often perform in ways that contradict those very principles.

This is explained partly by the idea itself of state-building missions. International actors substitute for local governments, or assume responsibility for legal and judicial reform, because of weak domestic capacity. International participants are not elected officials, and often the local interlocutors with which they cooperate are transitional governments, but interventions are accepted on the basis of necessity or out of human rights and humanitarian imperatives in order to redress past abuses and violations and for the maintenance of peace and security.

But while there might be acceptance towards the idea of state-building, there are deficiencies in the structure and methods that undermine effectiveness and accountability. One such deficiency arises from the employment of vague or excessively ambitious mandates as constitutional foundations for rule of law assistance. This aspect, together with the existence of weak coordination mechanisms for multilateral interventions, is discussed first in this chapter. The multitude of donor agencies is one impediment to effectiveness and accountability. Each comes supplied with their own policies, procurement procedures, contracts, and lines of accountability, and in the starkest cases “each organization asks for exemptions from prevailing law; and each drains the talent of the government and the private sector while lamenting the government's lack of capability”.

Such attitudes and habits give rise to tensions and disagreements between international and national actors. The president of East Timor, for example, tired of constant suggestions from international agencies on what his country was required to accomplish in the transitional period, stated: “We are not interested in a legacy of cars and laws, nor are we interested in a legacy of development plans for the future designed by [people] other than East Timorese”.

INTRODUCTION

The previous chapters examined the conceptualisation of the rule of law in war to peace transitions. What has emerged from the investigation of policy documents, UN Security Council mandates and operational directives is a concept that appears to be a situational response. In other words, the rule of law is defined and formed to fit challenges and problems as identified by international actors specifically in war-torn societies. The following chapters will proceed to consider how the rule of law is put into effect by way of tangible actions.

The first topic for consideration is law reform. This is one of the top priorities of rule of law reform in those societies torn apart by war. Countries such as Afghanistan, Liberia and Kosovo underwent an intensive law-making activity at the start of each transitional process. The typical mode of law reform involves providing technical support and legal advisory services to governments, assisting them in ratifying or acceding to international conventions, and helping legislatures in the draft ing of new laws in accordance with international standards and benchmarks. Several law reform initiatives are also founded upon laws drafted in other state-building missions.

Numerous parallels, but also substantial differences, exist between the approaches of earlier segments of rule of law reform and those rule of law reforms that are effected in war-torn societies today. One crucial difference is that the primary source for transplants in war to peace transitions does not rely as much as before on individual countries that happen to have an interest in the region in question – that is, through trade relations or historical ties (though this still occurs). The process of law reform and constitution-making in these societies draws more on international law, standards and benchmarks.

International law is emphasised by the UN Secretary-General's listing of the normative sources for rule of law reform. The normative framework is presented as that consisting of various branches of international law – criminal, refugee, human rights, and humanitarian law. As seen in the previous chapter, the intimate link between international human rights law and the rule of law concept for war-torn societies is held to provide legitimacy and credibility in reforms.

INTRODUCTION

An estimated 2 million children died as a result of armed conflict between 1994 and 2004. During this period about 6 million children were disabled or injured. Since the 1990s thousands of children have suffered the fate of enforced disappearance. At the same time there are an estimated 300,000 child soldiers in about 21 conflicts around the world. These numbers include forced, conscripted, and voluntary children from state as well as non-state actors. The problem is thought to be worst in Africa and Asia, but there are also instances in Europe and the Americas. In Colombia, for example, there are an estimated 14,000 children under thez age of ten involved in armed conflicts, in Uganda 20,000 children and an estimated 70,000 in Burma. Up to 200,000 children were left orphaned during the civil war in Mozambique. About 1 million Angolan children lost one parent in the war in that country and almost 300,000 lost both parents. Thus, the situation of children after war, and other types of conflict, is severe and in need of ongoing attention, especially as far as the needs of the child victim is concerned.

Besides the effect that conflict has on children, who are mostly merely bystanders, but dramatically affected, often as a result of the conflict, children are at times forced to commit human rights violations, including murder, amputations, rapes and other forms of sexual violence during hostilities.This is done intentionally to make the abducted child feel stigmatised and less likely to try to run away and return home. Stigmatising children may also be a problem after their return home, and thus steps ought to be taken to prevent this, and deal with it where it has occurred.

This chapter explores the needs of child victims. It explores specifically their needs for reintegration and rehabilitation linked to processes of reconciliation. It does not focus, however, on dealing with children or others as perpetrators of violence. Obviously, dealing with perpetrators, including those who are children, and finding ways of ending the use of child soldiers, reducing enforced disappearances and other violations against children or those that affect children, are vital.