INTRODUCTION

The issue of child soldiers in Eritrea is a central element of the grave human rights crisis in the country. It is not at all comparable to other African experiences. There are disturbing developments that need to be curbed before these trends reach a critical level of crisis, particularly in the event of an intrastate or interstate conflict, which could erupt in the country at any time. Reportedly, thousands of Eritrean child soldiers continue to be conscripted by the Eritrean government into the regular army.This has grave implications both for the international legal obligations of the Eritrean government and for the individual criminal responsibility of some senior government officials. Seen against its protracted history of human rights violations and virulent conflicts, Eritrea is a typical forthcoming model of transitional justice. The issue of child soldiers is not only one of the most dominant factors in the ongoing debate on human rights violations in Eritrea but also central to shaping future transitional justice options for Eritrea.

By addressing the pervasiveness of underage military conscription in Eritrea and the legal and political questions surrounding this issue, the paper explores possible and relevant answers to the following central question: what strategies are helpful for addressing the challenges of underage military conscription in Eritrea in the context of future transitional justice options for the country? In so doing, it offers practical recommendations for improvement in the future. The paper focuses on the excesses of the current authoritarianism that would be confronted in the post-authoritarian era and the need to identify such excesses in the context of transitional justice. To provide context, the paper will first present a brief historical background on the Eritrean post-independence era, focusing mainly on the increasing tendencies towards authoritarianism of the Eritrean government that finally led to the drastic post-2001 political crisis.

At the outset, it should be noted that the issue of child soldiers in Eritrea is to be seen in the context of excessive militarisation that has prevailed in the country, particularly since June 1998. The practice has effectively turned the country into one of the most militarised states in the world.

CASUAL ASSUMPTIONS AND STANDARD PRESCRIPTIONS

From the examination of how international actors treat the rule of law at policy and ‘field’ level, a distinct model emerges: rule of law after war and crisis. The distinct character of this model is the adaptability to post-war and crisis situations and how the rule of law has been made to ‘fit’ established practices. Before the rule of law became an architectonic ideal, justice sector reforms were already standard components of crisis management. When the UN and other international agencies eventually adopted the rule of law as an overriding objective, they did so without clarifying what it would mean in relation to an already established practice. Thus, organisations previously focusing on police and law enforcement reform, judicial reform, or criminal law reform started to rename and re-phrase activities under a rule of law banner. This means that the rule of law model that has emerged is fragmented and sectorised with little overall coherence. It makes more sense to speak of rule of law reform in the judicial, law enforcement or human rights sector, than general support to rule of law as a systemic concept.

The casual assumptions constituting the rule of law model in the aftermath of war and crisis would not be a cause for worry, lest it be shown that they create contradiction, confusion and goal displacement. Considering the challenges facing rule of law reform, the concept appears to have become, at best, nothing more than an “honorific title for an amalgam of values”. At worst, the rule of law resembles the confusion characterising law in war-torn societies, and the reason why international assistance is needed in the first place.

The methods employed in rule of law reform testify to the attendant conceptual difficulties. International agencies mostly work within three broad categories – legal and constitutional reform; institution-building; and accesscreation. While the methods vary depending in part on the particular mandate of the international actors concerned, some common denominators of rule of law reform are possible to identify.

INTRODUCTION

The purpose of this chapter is to examine the modes of influence and forms of interventions by means of which international players seek to promote rule of law reform in war to peace transitions.

In order to understand the modes of influence that these actors employ, and to place them in a broader context, it is necessary to look at the terminology of rule of law reform, involving transplants, transfers and similar concepts that denote externally supported legal reform. The discourse on legal transplants serves to identify theories relating to problems and prospects of the methods used in externally promoted rule of law reform.

This chapter also analyses the role of the rule of law in war-torn societies, and illustrate, through a description of a crisis anatomy, some of the main features that characterise legal and administrative systems in war to peace transitions. It is important to acknowledge the deficits, problems, constraints and power structures that war-torn societies display, and the history and possible path dependencies in the legal and administrative systems.

International organisations involved in rule of law reform in both development cooperation and in war to peace transitions are increasingly criticised for insufficient understanding of the institutional histories and legal and social challenges in ‘recipient’ societies’. Rule of law reform in these gravely damaged societies faces different problems than rule of law promotion in development cooperation and this must be taken into account for the purpose of understanding the parts played by international actors, the choice of the methods used, and the role of national operators and their initiatives.

(UN)RULE OF LAW IN WAR-TORN AND CRISIS SOCIETIES

The whole question of rule of law promotion in war-torn societies, and its construction by a combination of parts or in accordance with a design or plan, is the function of law itself. This plainly varies depending on a number of general factors. History, culture, tradition, and social norms tend to leave a mark on legal and administrative systems. War-damaged societies also typically display a layered complexity of law: ‘formal’ state law exist together with customary and or religious law.

WAR-AFFECTED CHILDREN AND INTERNATIONAL PSYCHOSOCIAL PROGRAMMES

‘Child psychology is a luxury which only a small section of the world's parents can afford’, the childhood researchers Elizabeth Newson and John Newson argued back in the 1970s. Yet the early 1990s witnessed an explosion of international trauma and other psychosocial therapeutic programmes. Their astonishing rise followed Western expanding therapeutic programmes and diagnosis of Post-Traumatic Stress Disorder (PTSD) which was formally recognised as a condition by the American Psychiatric Association in 1980. Why did global policy-makers make therapeutic programmes previously considered a luxury a humanitarian priority for war-affected populations? Therapeutic programmes were offered by international organisations in developing countries suffering acute health needs evidenced in high infant mortality rates and low life expectancy rates. The PTSD advocacy literature had previously argued that therapeutic interventions were needed in western societies because they lacked the traditional communal support relations, which remained in the developing world. International imperatives to provide psychosocial programmes to war-affected populations was not therefore a selfevident communal priority given so many other urgent basic needs.

International psychosocial interventions became promoted as a policy priority because of how the causes of violent conflict and war had become psychologised and increasingly sought in communal relations and norms. We may contrast Clausewitzian approaches seeing war as the continuation of politics, that is, conflicting political causes and interests to psychosocial approaches seeing war as the continuation of unhealthy psychology. Social psychology commonly approaches social problems as cycles of intergenerational dysfunctionalism, tracing back social pathology to primary socialisation. Essentially, social psychology believes that the construction of culture and personality is key to both comprehending and addressing social problems. So psychosocial approaches are concerned with children's development and socialisation as part of promoting social function. Underlying international psychosocial approaches is the cycles of violence thesis: war is seen as deriving from cultures or cycles of violence and the solution as breaking vicious cycles by changing cultural attitudes and instilling non-violent conflict resolution skills. The new psychosocial model located the origins of ethnic conflict in the ‘powerful reservoir of traumatic memory’.

INTRODUCTION

While the demobilisation of child soldiers from armed forces and armed groups has received widespread attention since the United Nations (UN) multiplied efforts aimed at ending the use of children in hostilities, the critical question of the reintegration of self-demobilised child soldiers has often been taken for granted, instead of being critically studied. In this regard, it is of paramount importance to stress that demobilisation does not necessarily signify reintegration. In fact, for the past six years in the Democratic Republic of Congo (DRC) more child soldiers have self-demobilised without really being reintegrated. Current estimates put their number at about 11,000. Despite their significant number, the substantial means available to the government and the UN, and the fact that child soldiers’ reintegration is considered a human right issue, the question of how to reintegrate self-demobilised child soldiers has been left out of the Disarmament, Demobilisation and Reintegration (DDR) process. The sole support for these children often comes from poor communities (families and local organisations), who find it difficult to access locally available resources and hammer out a solution to this important problem. Many researchers and authors have paid attention to the issue of children in the DDR process but thus far have not examined the question of self-demobilised child soldiers.This paper proposes community-based reintegration approaches to mobilising resources and to addressing the immediate and long-term psychosocial needs of the children.

To explore this issue, data were collected using variety of techniques, including documentary analysis of the literature on the question of child soldiers and email questionnaires sent to practitioners from local non-governmental organisations (NGO) working with child soldiers in the eastern DRC. The paper is also based on the author's experience as a peace trainer working with the NGOs. Additionally, data has been gathered through the author's observation of the life experience of self-demobilised child soldiers in the Kivu provinces.

This paper is divided into three sections. The first section reviews the context and the support provided to self-demobilised child soldiers. The second section presents evidence from the ground on the psychosocial effects of armed conflict on self-demobilised child soldiers in the DRC.

INTRODUCTION

This chapter summarises and concludes the first part of this work. In particular, it elaborates on matters of how international actors employ the concept of the rule of law as examined in the previous chapter. Three key points are discussed.

The first concerns the tendency to translate the idea of the rule of law into institutional check-lists, and the tension between formalism and instrumentalism. This includes the discourse on material as opposed to formal rule of law definitions, and the problems and constraints that respective definitions bring with them in terms of application to war-torn societies.

The second concerns the tendency to exclude from the conceptualisations of international actors, areas outside the justice sector – for example, customary law and public administration. Third is how the rule of law policies employed by international actors seems to ignore the users of the legal and administrative system undergoing reform.

FORMALISM AND INSTRUMENTALISM

Any comparative analysis of rule of law definitions made by international actors is compounded by the fact that those actors sometimes operate in various ways to achieve different ends.

The UN, for example, has had several rule of law definitions for distinct purposes. One emerged within the UN Secretariat because of increasing assistance in development cooperation. A second definition is the Human Rights Commission whose significance has to be read in light of the political compromises that characterises resolutions from the Commission. A third definition comes from the UN's engagement in war-torn societies in general, and in particular the mode of influence provided through the substitution of national governments. The EU, similar to the UN, also applies the rule of law to different situational responses. The first is the rule of law standard for EU membership. Second, the EU makes use of the rule of law as a criterion for its development assistance, as expressed in the Cotonou agreement. A third end is to be found in relation to the EU's recent rule of law missions to Georgia, Iraq and Kosovo where the EU now has adopted the UN 2004 definition of the rule of law.

RESEARCH QUESTION AND METHODOLOGY

In 2003, while working with the Truth and Reconciliation Commission (hereafter the TRC or the Commission), I once had an interview with a former child soldier, together with one of the Commission's psychosocial councillors. A 24-year-old adult at the time we met, the boy had been abducted by the Revolutionary United Front (RUF) around the age of twelve or thirteen and stayed with them for about ten years. Through his bravery and “good” behaviour he rapidly climbed up to the level of “captain” and later “colonel”, which included him being allowed the use of a truck (meaning he did not have to walk) and the command of a “Small Boys Unit” (SBU). During the interview, he explained why and how he was feared by the others, how he had all the food and money he wanted, how he could order his boys to pass him any looted item he preferred, the crimes and abuses they committed when attacking villages, how he was given the oversight of some mining activity, what sophisticated materials they had at their disposal during combat, how he escaped when captured by another armed group, etc. The whole interview sounded like someone describing the role he played in a “Rambo” film. He seemed very proud of his acts and the status he acquired. His main problem was with his current status in the community where he had decided to settle down after demobilisation (instead of returning home). He seemed to feel somehow relieved about the fact that people were not aware of his acts during the war (though they knew he had been a child combatant) and he had even become an appreciated solo singer in the church choir. On the other hand, he may have had some feelings of guilt, since he wanted to come out and apologise publicly for what he had done. But his (former combatant) friends discouraged him from doing so. Coming out and laying down his old status would lose him old friends. In addition, he would run the risk of being rejected by his new community and losing his new status as well.This prevented him from showing up for the TRC's reconciliation hearing.

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.