Children and Youth in Armed Conflict [1 ed.] 9789004260269, 9789004260252

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Children and Youth in Armed Conflict

The Raoul Wallenberg Institute Human Rights Library Editor-in-Chief

Gudmundur Alfredsson Managing Editor

Timothy Maldoon Editorial Board

Brian Burdekin – Miriam Estrada – Jonas Grimheden – Michelo Hansungule – Christina Johnsson – Rahmatullah Khan – Manfred Nowak – Chris Maina Peter – Bertram Ramcharan – Per Sevastik – Manoj Kumar Sinha – Mpazi Sinjela – Rebecca Stern – Sun Shiyan – Lyal Sunga – Zhang Wei – Ineta Ziemele

VOLUME 43/I

The titles published in this series are listed at brill.com/rawa

Children and Youth in Armed Conflict VOLUME I

by

Ann-Charlotte Nilsson

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Nilsson, Ann-Charlotte, author. Children and youth in armed conflict / by Ann-Charlotte nilsson. pages cm. -- (The Raoul Wallenberg Institute Human Rights Library, ISSN 1388-3208 ; v. 43/I) Includes bibliographical references and index. ISBN 978-90-04-26025-2 (hardback : alk. paper) -- ISBN 978-90-04-26027-6 (hardback : alk. paper) -- ISBN 978-90-04-26028-3 (hardback : alk. paper) -- ISBN 978-90-04-26026-9 (e-book) 1. Children (International law) 2. War victims--Legal status, laws, etc. 3. Children and war. I. Title. K639.N55 2013 341.6'7083--dc23 2013039043

issn: 1388-3208 isbn: isbn: isbn: isbn:

978-90-04-26027-6 978-90-04-26028-3 978-90-04-26025-2 978-90-04-26026-9

(hardback volume I) (hardback volume II) (hardback set) (e-book)

Copyright 2013 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents

Foreword

xix

Acknowledgements

xxi

List of Abbreviations

xxv

VOLUME I Introduction

1

1.

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

1.1.

The Interdependence of Political, Civil and Economic, Social and Cultural Rights The Pre-Existing Environment Children and Youth Grow Up In Violence Against Children Corporal Punishment and Other Cruel, Inhuman or Degrading Treatment The United Nations Committee on the Rights of the Child and Corporal Punishment The United Nations and Violence Against Children The United Nations Committee on the Rights of the Child and Violence Against Children The Rapporteurship on the Rights of the Child of the InterAmerican Commission Traditional and Harmful Practices and Children The Protection of Human Rights of Children in the Democratic Republic of Congo Early Child Marriage and Yemen Growing Up in Afghanistan Afghanistan and the Human Rights of Children

1.2. 1.2.1. 1.2.1.1. 1.2.1.1.1. 1.2.1.2. 1.2.1.2.1. 1.2.1.2.2. 1.3. 1.3.1. 1.3.2. 1.4. 1.4.1.

5 5 19 24 24 28 34 36 40 42 57 60 70 73

vi

Table of Contents

1.4.2. 1.4.3. 1.5.

Child Labour in Afghanistan Children and the Justice System in Afghanistan The African Report on Child Wellbeing

2.

Public Health and Armed Conflict

2.1. 2.2. 2.2.1. 2.3. 2.3.1. 2.3.2.

2.9. 2.10.

The Right to Health Maternal and Newborn Health The Fifth Millennium Development Goal Adolescent Health and Development Adolescents Girls in Post-Conflict Liberia Adolescents and Children and Health in the Occupied Palestinian Territory Public Health Concerns in the Democratic Republic of Congo and Colombia The United Nations Committee on the Rights of the Child and HIV/AIDS UNICEF and an Equity-Based Approach to Child Survival and Development Delivering Health Care in Emergencies and Armed Conflict Case Studies on Public Health in Emergencies and Armed Conflict Public Health in Kashmir Public Health in Afghanistan Care of Orphaned and Unaccompanied Children in Rwanda After the Genocide Mental Health Care in Emergencies and Armed Conflict The Convention on the Rights of Persons With Disabilities

3.

Street Children and Other Vulnerable Children

3.1. 3.1.1. 3.1.2. 3.1.2.1. 3.2.

Street Children in Africa Street Children in Nairobi, Kenya Street Children in Rwanda Vulnerable Children in Rwanda After the Genocide and War Adolescents as Other Vulnerable Children, Orphans and HIV/AIDS

2.4. 2.5. 2.6. 2.7. 2.8. 2.8.1. 2.8.2. 2.8.3.

4.

Providing Education in Armed Conflict

4.1.

Providing Education in Armed Conflict and Emergency Situations as a Human Right The World Declaration on Education for All, Jomtien, 1990 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments The Millennium Development Goals September 2000 General Assembly Resolution 64/290 on the Right to Education in Emergency Situations

4.2. 4.2.1. 4.2.2. 4.2.3.

74 82 86 91 92 104 109 112 117 117 119 122 124 127 138 138 141 143 147 150 155 155 156 163 166 172 177 179 190 193 197 201

Table of Contents

4.3. 4.3.1. 4.3.2. 4.3.3. 4.3.3.1. 4.3.3.2. 4.3.3.3. 4.4. 4.4.1. 4.4.2. 4.4.3. 4.4.3.1. 4.4.4. 4.4.5. 4.4.5.1. 4.4.6. 4.4.6.1. 4.4.6.2. 4.4.6.2.1. 4.4.6.2.2. 4.4.7. 4.5. 4.5.1. 4.5.1.1. 4.5.1.2. 4.6. 4.7. 4.7.1. 4.7.2. 4.8. 4.9. 4.9.1. 4.9.1.1. 4.9.1.2.

Education for Children in Armed Conflict Challenges to Providing Education in Armed Conflict Situations How to Overcome Challenges to the Provision of Education in Armed Conflict Attacks on Schools, Students and Teachers in Armed Conflict Global Coalition for Protecting Education from Attacks The United Nations Monitoring and Reporting Mechanism and Attacks Against Schools The International Criminal Court and Attacks Against Education Country Case Studies and the Provision of Education in Situations of Armed Conflict The Upper Nile State, Blue Nile State, South Kordofan and Abyei in South Sudan UNRWA and Providing Education in the Occupied Palestinian Territory Providing Education in Colombia Threats to Teachers and the Work of the Teacher Organization Federación Colombiana de Educadores Education in the Democratic Republic of Congo The Provision of Education in Afghanistan The Right to Education and the Challenges to Its Fulfilment in Afghanistan Education in Pakistan The Taliban in Pakistan and Their Influence on Children The LEAP’s Project in Pakistan Madrassa Schools in Pakistan Education in Punjab, Pakistan Political Attitudes and Content of Curriculum Education in Divided Societies in the Post-Conflict Phase Ethnicity, Education and Peace-Building in Burundi Education as the Cradle of Hope Educators and Educational Programmes and Practices in the Peace-Building Process in Burundi Peace Agreements, Issues of Exclusion and Discrimination, and Education Why Is Education Important? The Role of Education/Quality of Education Early Childhood Care and Development Education for Refugees and Internally Displaced Children Funding for Education in Conflict-Affected Countries Humanitarian Aid Delivery For Education in Conflict-Affected Countries Funding Channels of Humanitarian Assistance to Education The United Nations Central Emergency Response Fund (CERF)

205 206 210 211 224 225 232 236 236 238 246 249 252 255 257 271 272 275 275 277 281 282 287 292 293 297 303 309 315 316 319 322 323 326

vii

viii

Table of Contents

4.9.1.2.1. 4.9.1.2.2. 4.9.1.3. 4.9.1.3.1. 4.9.1.3.2. 4.9.1.3.2.1. 4.9.1.4. 4.9.2. 4.9.2.1. 4.9.3. 4.9.3.1. 4.10.

CERF Grants to Yemen Evaluation of UNICEF’s Response to the Sa’ada Conflict in Northern Yemen The United Nations Inter-Agency Standing Committee (IASC) The IASC’s Cluster Approach to Strengthen Humanitarian Response The Global Education Cluster The Education Cluster for Haiti After the January 2010 Earthquake Finding New Ways to Fund Education in CAFS The Inter-Agency Network for Education in Emergencies (INEE) The INEE Reference Guide on External Educational Financing The Education for All Fast Track Initiative (EFA FTI) Reforming the FTI Mental Health and Psychosocial Support as Part of Education in Emergencies

5.

The Inter-American Human Rights System as It Pertains to Children

5.1. 5.1.1.

The Human Rights of Children and Adolescents Prohibition of Suspension of International Obligations Related to the Human Rights of Children The Inter-American Court of Human Rights and Its Decisions on the Rights of Children in Armed Conflict The Concept of Victims and the Inter-American Court of Human Rights The United Nations Committee on the Rights of the Child and Guatemala Authoritarian Reversal of Laws on Children in Latin America

5.2. 5.2.1. 5.3. 5.4.

6.

The African Regional Human Rights System

6.1. 6.1.1.

The African Charter on the Rights and Welfare of the Child Children Affected by Armed Conflict and the African Children’s Charter The African Committee of Experts on the Rights and Welfare of the Child Cooperation Within the African Human Rights System as It Relates to Children

6.1.2. 6.2.

7.

The European Union’s Work on Children and Armed Conflict

7.1. 7.2. 7.3.

Introduction The European Union Guidelines on Children and Armed Conflict European Union’s Work on the Human Rights of All Children

328 332 336 338 340 343 345 346 349 355 365 369

371 371 376 381 402 405 408 411 414 426 431 436

439 439 443 450

Table of Contents

7.3.1. 7.4. 7.4.1. 7.5. 7.5.1. 7.6. 7.7.

Different Country Programmes on Children’s Rights and Children Affected by Armed Conflict The European Commission’s Humanitarian Aid Department The European Union and Children and Armed Conflict in Colombia The European Union Study on “Enhancing the EU Response to Children Affected by Armed Conflict” The European Union Survey on Children and Armed Conflict Revised Implementation Strategy of the European Union Guidelines on Children and Armed Conflict Conclusion

8.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

8.1. 8.1.1.

Introduction How to Make Sense of the Violence That the Children Have Been Through The Issue of Exposure What Characterizes Strength? What Does It Mean to Be Powerful? The Impact of Prolonged Conflict and Exposure of Conflict on Children and Youth How the Palestinian Internal Infighting Has Affected the Palestinian Children The Effects on Parenthood and Families and the Concept of Protecting the Children The Specific Relationship Between Mothers and Their Children The Situation for Children in Gaza During and After Operation Cast Lead Case Studies Psychosocial Effects of War Among Displaced Children in Southern Darfur in Sudan Psychosocial Assessment and Psychosocial Intervention for War-Affected Children in Sierra Leone A Response to Psychosocial Intervention for War-Affected Children in Sierra Leone as It Relates to Sri Lanka Psychological Disturbances of War-Traumatized Children From Different Foster and Family Settings in Bosnia-Hercegovina Seven Years After the 1992–1995 War / Caring for War Orphans Afghanistan – Violence as an Influential Factor in the Emotional Development of Children Children – Family Violence, Child Labour and Poverty in Afghanistan Iraqi Children’s Thoughts and Reactions Before the March 2003 US Invasion

8.1.2. 8.1.3. 8.2. 8.2.1. 8.3. 8.3.1. 8.3.2. 8.4. 8.4.1. 8.4.2. 8.4.2.1. 8.4.3.

8.4.4. 8.4.4.1. 8.4.5.

454 456 459 462 479 487 494

497 498 503 507 510 511 520 529 538 539 545 545 555 563

566 572 577 582

ix

x

Table of Contents

8.4.5.1. 8.4.6. 8.4.6.1. 8.4.7. 8.4.8. 8.5. 8.5.1. 8.5.1.1. 8.5.2. 8.5.2.1. 8.5.2.2. 8.5.3. 8.5.3.1.

8.5.3.2. 8.5.3.3. 8.5.3.3.1. 8.5.3.4. 8.5.3.4.1. 8.5.3.4.2. 8.5.3.5. 8.5.4. 8.5.5. 8.5.5.1. 8.5.5.2. 8.5.5.2.1. 8.5.6. 8.5.7.

Iraq: The Mosul Case Study Trauma and Children After the Genocide in Rwanda Youth-Headed Households in Rwanda After the Genocide 1994 War Violence and Natural Disasters, Children and Mental Health in Sri Lanka War Exposure and Trauma in Adolescents in the Democratic Republic of Congo Discussions Does Violence Breed Violence in Children and Adolescents Who Grow Up in Armed Conflicts? Does Good Parenting Protect Against the Children Developing Aggressive Behaviour in a Conflict Environment? Community Violence Exposure and Aggression in Children The Risk of Children and Youth Using Violence Themselves When Does the Child or Adolescent View Aggression as Acceptable? Resiliency in Children Resiliency Factors That Protect Children From Persistent Symptoms and Facilitate Good Adjustment in the Palestinian Context Children and Perceived Parenting The Effects of Peace Agreements on Children, the Case of the Palestinian Children Why Did the Flag-Raising Activities Play Such a Role for the Children? Israeli Children – Risk and Resiliency Factors Trauma in Israeli Children and Their Relationship to Parents Ideology as a Protective Factor for Children in Israel Bushfires in Australia, the Impact of Life Events on Children and Their Parents The Terrorist Bombing 1998 in Nairobi, Kenya and Kenyan Children and Youth in 2010 The Role of Culture and Trauma Discussion Cultural Aspects and the Process of Cultural Disintegration Ethnocultural Aspects of Posttraumatic Stress Disorder The Inter-Agency Standing Committee Guidelines on Mental Health and Psychosocial Support in Emergency Settings Conclusion

9.

Internally Displaced Persons

9.1. 9.2.

Introduction International Support for the Assistance and Protection of Internally Displaced Persons

588 589 593 601 604 608 608 625 631 637 638 643

644 648 653 655 657 665 668 672 674 676 681 684 687 689 691 693 693 703

Table of Contents

9.3.

9.7.4.1.1. 9.7.4.1.2. 9.7.4.1.3. 9.7.4.1.4. 9.7.4.1.5. 9.7.4.1.6.

Post-Election Violence in Kenya and the Conditions for the Women and Girls in the IDP Camps for Those Who Had Become Displaced by the Violence The United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons The Guiding Principles on Internal Displacement Internal Displacement in Africa The Kampala Convention Internal Displacement in Colombia The Constitutional Court of Colombia and the Rights of Internally Displaced Persons The Constitutional Court of Colombia and Its Tutela Decision T-025 The Constitutional Court of Colombia and Auto 251 on Boys, Girls, Teenagers and Adolescents Domestic Violence and Children Sexual Violence Measures to Be Adopted Differential Treatment of Individuals Who Have Special Constitutional Protection in Colombia The Guiding Principles on Internal Displacement and Colombia The Rights of Children and Youth in the Colombian Context The United Nations Human Rights Committee and Its Concluding Observations on Colombia as Pertaining to Children and Youth Act No. 975 of 2005 and Reparation and Impunity Serious Human Rights Violations Sexual Violence Preventive Detention and Mass Arrest Forced Displacement Recruitment of Children

10

The Legal Protection of Children and Armed Conflict

10.1. 10.1.1. 10.1.1.1.

The Human Rights of Children The United Nations Convention on the Rights of the Child Children and Armed Conflict and Article 38 of the Convention on the Rights of the Child The International Labour Organization’s Convention No. 182 The CRC Committee on the Rights of the Child The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

9.4. 9.5. 9.6. 9.6.1. 9.7. 9.7.1. 9.7.1.1. 9.7.1.1.1. 9.7.1.1.1.1. 9.7.1.1.1.2 9.7.1.1.1.3. 9.7.2. 9.7.3. 9.7.4. 9.7.4.1.

10.1.1.1.1. 10.1.1.2. 10.1.2.

705 708 710 719 721 728 730 739 747 758 759 763 771 776 780

780 781 782 782 783 783 783 785 785 787 791 794 795

800

xi

xii

Table of Contents

10.1.2.1.

United Nations Committee on the Rights of the Child and State Reports Under the Two Protocols That Have Entered Into Force The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Concluding Observations Sexual Violence Use and Occupation of Schools Civic Military Activities Assistance for Physical and Psychological Recovery Committee on the Rights of the Child, Summary Record of the 1528th (Chamber A) Meeting, Initial Report of Colombia Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, CRC/C/SR.1528, 22 June 2010 Education in Colombia Children Require Special Protection in Armed Conflict and Emergencies The Right of a Child to Receive a Birth Registration Children and International Humanitarian Law and Human Rights Law Human Rights Law The Right to Life The Prohibition of Torture International Humanitarian Law The Fourth Geneva Convention as It Relates to Children Additional Protocol I to the Geneva Conventions Additional Protocol II to the Geneva Conventions

836 840 841 843 844 844 851 855

11.

The Work of the United Nations on Children and Armed Conflict

859

11.1.

The Establishment of the Special Representative of the Secretary-General on Children and Armed Conflict The Office of the Special Representative of the SecretaryGeneral on Children and Armed Conflict The United Nations Child Protection Advisers in PeaceKeeping Missions

10.1.2.1.1.

10.1.2.1.2.

10.1.2.1.2.1. 10.1.2.1.2.2. 10.1.2.1.2.3. 10.1.2.1.2.4. 10.1.2.1.3.

10.1.2.1.3.1. 10.2. 10.2.1. 10.3. 10.3.1. 10.3.1.1. 10.3.1.2. 10.3.2. 10.3.2.1. 10.3.2.1.1. 10.3.2.1.2.

805

805

806 811 812 813 813

814 825 825 833

VOLUME II

11.1.1. 11.2.

859 864 868

Table of Contents

11.2.1.

11.2.2. 11.2.3. 11.2.4. 11.3. 11.4. 11.5. 11.5.1. 11.5.2. 11.5.2.1. 11.5.2.2. 11.5.3. 11.5.4. 11.5.5. 11.5.5.1. 11.5.5.2. 11.5.5.2.1. 11.5.5.2.2. 11.5.5.2.3. 11.5.5.2.4. 11.5.6. 11.5.6.1. 11.5.6.2. 11.5.6.2 .1. 11.5.6.2.2.

The United Nations Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict Within UN Peacekeeping Missions Reports by the Secretary-General on Peace-Keeping Missions and Child Protection The United Nations Secretary-General’s Country-Specific Reports on CAAC Sexual Exploitation and Abuse Involving Minors by United Nations Peace-Keeping Personnel The Work of the UNICEF in the Monitoring and Reporting Mechanism The Work of the United Nations Security Council on Children and Armed Conflict The United Nations 1612 Monitoring and Reporting Mechanism The Legal and Normative Framework for the MRM and Its Six Priority Violations The Security Council Working Group on Children and Armed Conflict The Chairmanship of the Security Council Working Group on Children and Armed Conflict Mexico as Chair of the Working Group on CAAC Challenges to the Work of the Working Group on Children and Armed Conflict The Working Group’s Conclusions Security Council Working Group on Children and Armed Conflict Toolkit The Working Group’s Field Trip to Nepal Sanctions, Targeted and Graduated Measures and Children and Armed Conflict The Security Council Sanctions Committee for the Democratic Republic of Congo The Security Council Sanctions Committee for Côte d’Ivoire The Security Council Sanctions Committee for the Sudan/Darfur The Security Council Sanctions Committee on Somalia and Eritrea The United Nations Monitoring and Reporting Mechanism and Accountability Actions to Hold Persistent Violators of Grave Violations Against Children Accountable Making the United Nations Monitoring and Reporting Mechanism More Effective The Nature of the Dialogues With the Different Parties, Governmental Forces and Non-State Actors What Role Should the MRM Play in Pursuing Accountability in International Criminal Tribunals?

871 875 875 876 877 879 886 893 906 908 911 914 919 922 927 929 937 945 948 949 950 950 955 957 960

xiii

xiv

Table of Contents

11.5.7.

11.5.7.1. 11.5.7.1.1. 11.5.7.1.2. 11.5.7.1.3. 11.5.7.1.4. 11.5.7.1.5. 11.5.7.1.6. 11.5.7. 2.

11.5.7.3. 11.5.7.3.1. 11.5.7.3.2. 11.5.7.3.3. 11.5.8. 11.5.9. 11.5.9.1. 11.5.9.1.1. 11.5.9.1.2. 11.5.9.1.3. 11.5.9.1.4. 11.5.9.1.5. 11.5.9.1.6. 11.5.9.2. 11.5.9.2.1. 11.5.9.2.2. 11.5.9.2.3. 11.6.

Reporting on Violations Against Children and the United Nations Secretary-General’s Annual Report on Children and Armed Conflict Reporting on the Six Priority Violations Killing and Maiming of Children Rape and Sexual Violence Against Children Attacks on Schools and Hospitals Denial of Access to Humanitarian Assistance Recruitment and Use of Child Soldiers Abduction of Children The Criteria for Listing and De-Listing Parties to Armed Conflict in the Annexes of the Secretary-General’s Annual Reports on Children and Armed Conflict The Country Taskforces on the Monitoring and Reporting Mechanism Annex I Situation – The Taskforce on MRM for the Democratic Republic of Congo UN MRM Taskforces in Situations in Annex II The UN MRM in Situations Not Listed in the Annexes The Challenges Involved with the UN 1612 MRM Process The United Nations Monitoring and Reporting Mechanism and Specific Country Situations Case of the MRM and Sri Lanka The Visit of the Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka The Screening of Children Who Might Have Been Associated With the LTTE Issues of Accountability Tracing and Family Unity The Paris Principles and Commitments (2007) The Security Council Working Group on CAAC’s Conclusions on Children and Armed Conflict in Sri Lanka Case of the MRM and the Post-Conflict Environment: Nepal Monitoring in Nepal Release from Cantonments The Political Environment for Reintegration Conclusion

12.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

12.1. 12.2.

Introduction The Development of Women’s Rights in Armed Conflict and Rape and Sexual Violence Committed Against Women in Armed Conflict

961 961 961 962 965 966 967 969

970 972 974 979 982 985 988 988 994 995 1000 1001 1001 1002 1003 1010 1019 1022 1026

1035 1035

1036

Table of Contents

12.3. 12.3.1. 12.3.1.1.

12.4. 12.4.1. 12.4.2. 12.4.3. 12.4.3.1. 12.4.4. 12.4.5. 12.5. 12.5.1. 12.6. 12.6.1. 12.6.1.1. 12.6.2. 12.6.3. 12.6.4. 12.6.4.1. 12.7.

12.7.1. 12.8. 12.8.1. 12.8.2. 12.8.2.1. 12.9. 12.9.1.

Gender Equality and Empowerment at the United Nations The Convention on the Elimination of All Forms of Discrimination Against Women The Definition of “Violence Against Women” and the Convention on the Elimination of All Forms of Discrimination Against Women The United Nations Security Council Resolutions 1325, 1820, 1888, 1889 and 1960 on Women and Armed Conflict Security Council Resolution 1325 (2000) Security Council Resolution 1820 (2008) Security Council Resolution 1888 (2009) The Office of the United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict Security Council Resolution 1889 (2009) Security Council Resolution 1960 (2010) The Challenges to the Roles of Women in the Ending of Conflicts, Peace Negotiations and Peace-Building The Post-Conflict Transitional Period and the Issues of Justice and Reconciliation Rape and Sexual Violence Committed in Armed Conflict New Law on Rape and Sexual Violence in the Democratic Republic of Congo Rape Cases Before Courts in the Democratic Republic of Congo Colombia and Sexual Violence Children, Sexual Violence and the Lord’s Resistance Army in Northern Uganda Gender-Based Violence and Feminicide Gender-Based Violence in Iraq The Importance of Documenting and Recording Gross Human Rights Violations Such as Rape and Sexual Violence Also When Impunity Is Rampant and the Court System Does Not Function Centre Olame, Bukavu in South Kivu in the Democratic Republic of Congo Treating Survivors of Sexual Violence The HEAL Africa Hospital, Goma, North Kivu, the Democratic Republic of Congo The Consequences of Sexual Violence in the Democratic Republic of Congo Who Are the Perpetrators in the Democratic Republic of Congo? The Issues of Trauma, PTSD Symptoms, Sexual Violence and Reconciliation Study of Former Child Soldiers From Uganda and the Democratic Republic of Congo With PTSD Symptoms and Their Attitudes Toward Reconciliation

1043 1045

1049 1055 1056 1057 1059 1061 1064 1068 1072 1074 1078 1086 1086 1087 1094 1097 1099

1103 1106 1113 1113 1118 1120 1122

1122

xv

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Table of Contents

12.9.2.

12.9.3. 12.10.

Study From Rwanda of People Shown To Have PTSD Symptoms and How This Affects Their Attitudes Toward Justice and Reconciliation A Psychosocial Case Study in Liberia Conclusion

13.

Armed Conflict, Transitional Justice and Children and Youth

13.1. 13.2.

Introduction Criminal Accountability of Crimes Committed Against Children in Armed Conflict The International Criminal Court and Children Associated with Armed Forces and Armed Groups The Amicus Curiae Brief by the UN Special Representative of the Secretary-General on Children and Armed Conflict and the Thomas Lubanga Dyilo Case Justice: To End Impunity for Rape and Sexual Violence in Armed Conflict The International Criminal Tribunals for Former Yugoslavia and Rwanda International Criminal Justice and Women and Girls and Former Yugoslavia The History of the Victims in International Humanitarian Law and the Emergence of International Human Rights Law The Protection of Victims and Witnesses in Transitional Justice Processes The International Criminal Court and Reparations for Victims and Victims and Witness Unit The Outreach Unit of the International Criminal Court International Criminal Tribunals and Cases Relating to Women and Children Participation of Children in Transitional Justice Processes Participation of Children Before the Special Court for Sierra Leone Accountability of Children as Perpetrators When Is a Child Too Young to Be Tried? The Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes Transitional Justice and Truth and Reconciliation Commissions The Truth and Reconciliation Commissions for South Africa, Sierra Leone and Liberia The Truth and Reconciliation Commission for Sierra Leone and the Special Court for Sierra Leone

13.3. 13.3.1.

13.4. 13.4.1. 13.4.1.1. 13.4.2. 13.4.2.1. 13.4.2.1.1. 13.4.2.1.2. 13.5. 13.6. 13.6.1. 13.6.2. 13.6.2.1. 13.6.2.2.

13.7. 13.7.1. 13.7.2.

1124 1129 1132

1133 1133 1137 1144

1150 1158 1162 1166 1171 1175 1179 1181 1182 1189 1193 1197 1201

1205 1207 1213 1219

Table of Contents

13.7.2.1. 13.7.2.1.1. 13.7.2.1.2. 13.7.2.1.3. 13.7.2.1.4. 13.7.2.1.5. 13.7.2.1.6. 13.7.2.1.7. 13.7.2.1.8. 13.7.2.1.9. 13.7.2.1.10. 13.7.2.1.11. 13.7.2.1.12. 13.7.2.1.13. 13.7.2.1.14. 13.8. 13.8.1. 13.8.1.1. 13.8.1.2. 13.8.1.3. 13.8.1.4. 13.8.1.5. 13.8.1.6. 13.8.1.7. 13.8.1.8. 13.9. 13.9.1. 13.10.

The Truth and Reconciliation Commission for Sierra Leone and Children and Youth The Education System Before, During and After the Armed Conflict Abductions, Forcible Recruitment and Child Soldiers Becoming a Refugee or Internally Displaced Sexual Violations Against Children Sexual Slavery Amputations Torture Forced Drugging After the War – The Child Soldiers The Civil Defence Forces The Sierra Leone Army The Economic Consequences for the Children Street Children Children as Perpetrators and Victims The Liberian Truth and Reconciliation Commission The Liberian Truth and Reconciliation Commission and Children Children Being Directly Targeted Sexual Violence and Rape Child Soldiers The Role of Children in Liberia Why Children Have Been Used as Soldiers in Liberia and Their Treatment Accountability for the Crimes Committed by the Child Soldiers Education in Liberia “General Butt Naked” Transitional Justice for Children in Peru and Colombia The Truth and Reconciliation Commission for Peru and Children Conclusion

14.

Children Associated With Armed Forces and Armed Groups

14.1.

Voluntary and Involuntary Recruitment and Use of Child Soldiers The Paris Principles and Paris Commitments on Children Associated With Armed Forces and Groups The Demobilization, Disarmament and Reintegration Programmes – The DDR Processes The DDR Process in the Democratic Republic of Congo and CONADER

14.2. 14.3. 14.3.1.

1223 1230 1231 1235 1237 1239 1241 1242 1244 1249 1253 1256 1258 1260 1261 1264 1269 1274 1278 1282 1286 1287 1291 1296 1298 1301 1308 1321

1323 1324 1333 1337 1340

xvii

xviii

Table of Contents

14.3.2.

14.7. 14.7.1. 14.7.2. 14.8.

Colombia and the Children Associated With Armed Forces and Groups The Demobilization Regime for Combatants in Colombia Challenges to the Demobilization of the Paramilitaries The Issues of Justice The Reintegration Phase of DDR Programmes The Challenges Involved With the Prevention of Recruitment and Re-Recruitment in Colombia How to Prevent the Recruitment of Children Into Armed Groups Prevention of Child Recruitment in Colombia The Special Challenges with Reintegration, Prevention and Re-Recruitment in Colombia Armed Groups Outside of the Law and the Urban Conflict in Colombia Girls Associated With Armed Groups and Armed Forces Association de Goma le Communitaire and Former Girl Child Soldiers Why Do Children Become Child Soldiers? The Case of Colombia The LRA in Northeastern Democratic Republic of Congo The DDR Programmes for Sierra Leone and Liberia

15.

Adolescents and Youth and Armed Conflict

15.1. 15.2.

15.6.

Introduction Youth Susceptibility and Expressions of Political Support in Israel Manipulation of Youth in Political Violence in Sierra Leone Former Child Soldiers and Their Psychosocial Health in the Post-Conflict Environment Kenya and Youth Participation in the Post-Election Violence Children and Youth After the Post-Election Violence in Kenya Children and Youth and Al-Shabaab in Somalia and Kenya Children’s and Youth’s Participation in Violence in Medellín in Colombia The African Youth Charter

16.

Conclusion

14.3.2.1. 14.3.2.2. 14.3.2.2.1. 14.4. 14.4.1. 14.5. 14.5.1. 14.5.1.1. 14.5.1.1.1. 14.6. 14.6.1.

15.3. 15.3.1. 15.4. 15.4.1. 15.4.2. 15.5.

1348 1350 1360 1365 1367 1373 1377 1380 1383 1395 1399 1407 1408 1408 1413 1415 1421 1421 1427 1431 1435 1438 1445 1446 1449 1459 1473

Bibliography

1475

Index

1559

Foreword

“Oh, where are the little ones, the two and three years olds?” They were found hiding behind a door in the railway station because they were so afraid of the bombings and the upheaval around them. They were on their way with their family to be evacuated changing trains.1

In honour and memory of my mother and father who always supported me and my work and who taught me about war, loss and pain, and about peace, and who taught me the values of decency, integrity and sincerity, and to focus on what is important and to value life. To my sister who has been there for and with me, and who equally knows and understands our history with whom I share such love for our family. To my aunt Hellin, who was evacuated from Viipuri, standing outside the fence feeding pancakes to her two little sisters and brother through the holes in the fence. Hellin was not allowed to go into the children’s camp because the children were under quarantine. The only thing she could do was bring them food and feed them through the fence, the little ones, without being able to hold and hug them. It was all done in order to protect the children. To my Finnish grandmother who cried every night her children were in Sweden until they returned. Parents do their best to protect their children from harm’s way, decisions regarding physical protection are taken at a time of real danger, and we 1

My mother was seven in September 1939 when the war broke out between Finland and the Soviet Union, and she was living in Karelia with her family. The family had to leave their home in Räisälä in Karelia in 1939 and became internally displaced in Finland, encountering a very different culture from multicultural Karelia, came back to Karelia in 1942, and needed to leave everything behind for good on 20 June 1944 and resettle in southern Finland. Since then Karelia has belonged to now Russia. When the war ended she had attended several schools in different places and instilled the value of education in her children. My mother has always talked about her experiences from the war and we have grown up with many of the issues that I am writing about. Our father was exceptionally knowledgeable about history and especially about the Second World War and thankfully was able to put things into context for us.

xx

Foreword

need to know and understand that parents do it out of love and care for their children, and that they are also making sacrifices. To the children and their parents in St. Petersburg in Russia who were under years of siege during WWII when so many people died. At times our mother saw the sky light up at night from the constant bombings over the city. At a much earlier time, St. Petersburg had been the “town” for my grandparents; my grandmother for instance attended a school there during a period of time. To you the children and young people with a wish for you to hold on to your innocence and joy, and for you to understand what value these qualities hold for you. To the parents who are doing the best they know how during times of adversity and upheaval, and with a wish for you to understand how much love your children have in their heart for you and how much they need for you to be there for them. They know the circumstances you are all living under, they value you immensely as their parents and wish you would do the same. And finally a request to the rest of the world for you to reach out with a much deeper understanding and compassion for people in need. Throughout this book the term children will be used for anyone under the age of 18, and youth for anyone between 18 and 24 years of age. This is consistent with the definitions that the various United Nations agencies use, recognizing how childhood and adulthood intersect within and between each other:2 – Children: under 18 – Adolescents: 10 to 19 – Youth: 15 to 24 – Young people: 10 to 24 Further, I recognize that the definition of youth differs depending on the context, and that the African Youth Charter sets the age limit for “youth or young people” at 15 to 35 years. For clarification, the information for this book is up to date until mid-June 2012 and the titles and positions are given as they were at the time of writing, except for some minor updates and additions.

2

Women’s Commission on Refugee Women and Children, Youth Speak Out: New Voices on the Protection and Participation of Young People Affected by Armed Conflict, January 2005, p. 5, and “young people” from 15 to 24 years in Women’s Commission Refugee Women and Children, Displaced Youth Program, 2010

Acknowledgements

For this book I have many people to thank, as so many have been incredibly helpful and generous to me over these years that I have been writing this book, and the titles and positions are noted as they were at the time of the assistance given, unless otherwise noted. – Dr. Zaid Ahmad Wani, Department of Psychiatry, SKIMS Medical College, Srinagar, Jammu and Kashmir, India, Najia Sabeen, Nairobi, Kenya; – Per Örneus and Fredrika Ornbrant, the Swedish Foreign Ministry – Laurence Gerard and Alec Wargo at the UN Office of the Special Representative of the Secretary-General on Children and Armed Conflict, New York; – Margot Wallström, the Special Representative of the Secretary-General on Sexual Violence in Conflict, Mattias Sundholm and Tonderai W. Chikuhwa of the Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, New York; – Lara Scott, Child Protection Specialist, MRM, Child Protection Section, UNICEF, and Gary Risser, Office of Emergency Programmes, HPS/EMOPS, UNICEF, Wasantha Bandarage, United Nations, New York; – Ellen van Kalmthout, Coordinator, UNICEF, Geneva, Global Education Cluster; – Fadi El Abdallah, Public Information and Documentation Section, the International Criminal Court, The Hague; – Gosia Gorska and Riina Kionka, European External Action Service, EEAS, Human Rights and Democracy Directorate, European Commission, Brussels; – Andrew Whitley, Director, UNRWA Representative Office, New York; – Eva Smets, Director, Watchlist on Children and Armed Conflict, New York; – United Kingdom mission at the United Nations in New York, Phil Saltonstall, former UK expert on the United Nations Security Council Working Group on Children in Armed Conflict, Rhian Checkland, UK’s expert on the United Nations Security Council Working Group on Children in Armed Conflict, Hanne Stevens;

xxii

Acknowledgements

–

–

–

–

–

– –

– –

–

–

–

–

–

US mission at the United Nations in New York, Tracy Lavin, former US expert on the United Nations Security Council Working Group on Children in Armed Conflict; France mission at the United Nations in New York, Fabien Fieschi, France’s former expert on the United Nations Security Council Working Group on Children in Armed Conflict; Mexico’s mission at the United Nations in New York, Roberto DeLeón and Rodrigo A. Lopéz Tovar, Mexico’s former experts on the United Nations Security Council Working Group on Children in Armed Conflict; Lori Heninger, INEE Director, Inter-Agency Network for Education in Emergencies (INEE), New York, Alberto Begué then at the Fast Track Initiative (FTI) Washington D.C., Zama Coursen-Neff, Deputy Director, Children’s Rights Division, Human Rights Watch, New York; Rebecca Winthrop, Director, Center for Universal Education, Brookings, Washington D.C., Elizabeth Ferris Co-Director and Chareen Stark, Brookings-LSE Project on Internal Displacement, Washington D.C.; Barber, Brian K., Director, Center for the International Study of Youth and Political Violence, University of Tennessee; Michael G. Wessells, Professor of Clinical Population and Family Health, Program on Forced Migration and Health, Columbia University, Professor of Psychology, Randolph-Macon College; Ahmad Nader Nadery and Hamida Barmaki at the Afghanistan Independent Human Rights Commission; Ernesto Durán Strauch, Professor at the Universidad Nacional de Colombia, Donny Meertens, Lecturer Pontificia Universidad Javeriana and National University of Colombia, Jaime Urrego Rodriquez, M.D., Colombia; Atle Dyregrov, Director, Center for Crisis Psychology, Bergen, Norway, William Yule, Emeritus Professor of Applied Child Psychology, King’s College London; Kirsten Johnson, M.D., MPH, Institute for Health and Social Policy, McGill University, Montreal, Quebec and Harvard Humanitarian Initiative, Harvard University, Cambridge, Massachusetts; Theresa S. Betancourt, Sc.D., M.A., Assistant Professor of Child Health and Human Rights, Department of Global Health and Population, Director, Research Program on Children and Global Adversity, François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health; Elavie Ndura-Ouedraogo, College of Education and Human Development, George Mason University, Manassas, VA, and Fellow at Woodrow Wilson International Center for Scholars, Washington D.C.; Margaret Wamuyu Muthee, Kenyan Expert on Youth, Sammy Njayakio Wambugu, Secretary-General, Kenya Psychological Association, Counseling Psychologist/ Consultant, OASIS, Martin Muhindi, Kenyan Child Protection Specialist, Herbert Awuor, Kenyan Human Rights Defender;

Acknowledgements

–

Mathilde Muhindi, Directrice, and other staff at Centre Olame, South Kivu, DRC, Sifa Munubo, also at CRN-Cepac (Christian Relief Network), Goma, North Kivu, DRC, Wilhelmine Bamuswekere and Aimeé Kataliko and other staff at Association de Goma Communitaire, AGC, Goma, North Kivu, DRC;

I would like to say a special thank you to the Gaza Community Mental Health Programme who through their wonderful work and generosity answered many questions that I have had since childhood. I have translated everything from Swedish, Spanish and French into English. With Spanish I got some help from Sara Morales, Spanish certified translator from Spanish to English (technical translator and proof-reader), and Richard Villegas, lawyer from Colombia and the US, and I am very grateful to both of you. A big thank you goes to Computer Plus and Eddie from Mongolia, River Place, Rosslyn, Virginia, who provided excellent help with my computer when I really needed it. A very special thank you goes to Lena Olsson, Karl-Adam Tiderman, Habteab Tesfay (retired) and Carin Carlson at the library at the Raoul Wallenberg Institute for Human Rights and International Humanitarian Law (RWI) in Lund, Sweden, for your help no matter if I was in Sweden or in the US; you have been incredibly helpful and it has been a joy to get help from you. I also want to say a special thank you to Pauline Etemad and Martin Jörnrud for always being helpful to me and it was great to chat with you two. Furthermore I want to thank the absolutely wonderful staff at the Gelman Library and the Burns Law Library at George Washington University (the George Washington University Law Library) in Washington D.C., USA who always helped me with anything that I possibly needed. I also want to thank the staff at Riksdagsbiblioteket in Stockholm, Sweden and at the Library of Congress in Washington D.C., USA who always were helpful to me. I very much want to thank Lindy Melman who when having read my first draft said that she looked forward to publishing this book in due course, which was such an encouragement and joy for me. I am very grateful to you. Further I am very grateful to my editor at RWI, Timothy Maldoon, for your true patience and for a really great working relationship which I have very much appreciated.

xxiii

List of Abbreviations

Acción Social ACERWC ACHPR ACRWC AFL ANPPCAN APRM AU AUC AWP

CAAC CAR CEDAW CESCR CFSP CNDP COHOM COJUR CRC CSDP DDR DPA DPKO

Agencia Presidencial para la Acción Social y la Cooperación Internacional African Committee of Experts on the Rights and Welfare of the Child African Charter on Human and Peoples’ Rights African Charter on the Rights and Welfare of the Child; a.k.a. African Children’s Charter Armed Forces of Liberia African Network for the Prevention and Protection against Child Abuse and Neglect African Peer Review Mechanism African Union Autodefensas Unidas de Colombia Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women; a.k.a. African Women’s Protocol or the Maputo Protocol Children and Armed Conflict Central African Republic Convention on the Elimination of All Forms of Discrimination Against Women Committee on Economic, Social and Cultural Rights EU’s Common Foreign and Security Policy Congrès national pour la defense du people Council of the EU Working Group on Human Rights Council Working Group on International Law (EU) Convention on the Rights of the Child Common Security and Defence Policy Disarmament, Demobilization and Reintegration United Nations Department on Political Affairs United Nations Department on Peace-Keeping Operations

xxvi

Abbreviations

DRC ECHO ECOWAS EEAS EFA ELN ESDP EU EUSRs FARC FARDC FGM FDLR FNI FRPI HoMs ICBF IACHR ICC ICCPR ICESCR ICRC ICTR ICTY IDP ILO INPFL IOM LPC LRA LURD MDG MODEL NEPAD NGO NPFL OAU PARECO PRST RUF SCSL

Democratic Republic of Congo European Commission’s Humanitarian Aid Department Economic Community of West African States European External Action Service Education for All Ejército de Liberación Nacional European Security and Defense Policy European Union European Union Special Representatives Fuerzas Armadas Revolucionarias de Colombia Forces armées de la Rèpublique du Congo Female Genital Mutilation Forces Démocratiques de liberation du Rwanda Front nationaliste et intégrationnaliste Forces de résistance patriotique en Ituri Heads of Missions Instituto Colombiano de Bienestar Familiar Inter-American Convention on Human Rights International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Internally Displaced Person International Labour Organization Independent National Front of Liberia International Organization for Migration Liberian Peace Council Lord’s Resistance Army Liberians United for Reconciliation and Democracy Millennium Development Goal Movement for Democracy in Liberia New Partnership for Africa’s Development Non-Governmental Organization National Patriotic Front of Liberia Organization for African Unity Patriotes résistants congolais Presidential Statement Revolutionary United Front Special Court for Sierra Leone

Abbreviations

Social Action SRSG-CAAC TRC ULIMO UNAIDS UNAMSIL UNDP UNGASS UNHCR UNICEF UNSC WFP WHO

Presidential Agency for Social Action and International Cooperation Special Representative of the Secretary-General on Children and Armed Conflict Truth and Reconciliation Commission United Liberation Movement Joint United Nations Programme on HIV/AIDS United Nations Mission in Sierra Leone United Nations Development Programme United Nations General Assembly’s Special Session on Children United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Security Council World Food Programme World Health Organization

xxvii

Introduction

If I had a magic wand I would do two things: I would make the school bigger with bricks and with more space, and I would make a patio where we can play safely. – Freddy, 6 years, Colombia. From Rewrite the Future, Save the Children. We were not scared because there had been hours of shooting. – Mervat, a Palestinian girl, talking about that day in school when Hoda, her schoolmate, was shot in the head sitting at her desk in their class room. UNRWA’s Kan Younis Elementary School, the Gaza Strip, UNRWA fi lm, 2003. Our biggest tragedy is that our children learnt the logic of war. – Man from Badakhshan, from A Call for Justice, A National Consultation on Past Human Rights Violations in Afghanistan, 2005, the Afghan Independent Human Rights Commission.

The underlying core belief for this book is that you cannot separate the pre-existing conditions that children and youth already experience in peacetime, including how they are being viewed, from their utter vulnerability in war, as the violations committed against them in wartime do take place in a certain context. This book also shows how interrelated the issues are, and that it is necessary to view them from various perspectives and for this reason different issues will be discussed in more than one context and chapter. The scale and magnitude of the human rights abuses committed against children in today’s conflicts highlight the urgent need to guarantee and ensure the rights of children. As Mervat, the girl in the abovementioned quote reflects, the Palestinian children – as so many other children in conflict situations around the world – are accustomed to a level of violence that is not acceptable. Save the Children has reported that “[m]ore children have died in the Democratic Republic of Congo than in any other war in recent history”.1 As a consequence of the civil 1

“More children have died in the DRC than in any other war in recent history. The situation for children in Eastern DRC is utterly horrific.” Save the Children 27/06/2006

2

Introduction

war in Burundi, about 836,000 children, which was 10 per cent of the population, became orphaned.2 The Palestinian children of the second intifada of year 2000 are considered to be the generation that is the “most accepting of violence”.3 After the Lebanon-Israeli war in the summer of 2006, there was a notable rise in trauma-induced violence and children dropping out of schools in those areas in Lebanon where the war took place, and children accounted for one-third of the people killed and one-third of those injured.4 The dangers that the Nepali children experienced during the war between the Nepalese security forces and the Communist Party of Nepal (CPN) (Maoist) rebels reflect the multiple dangers that many children around the world in armed conflict situations are exposed to, which have been summed up by Amnesty International: The most fundamental rights of children, provided by general human rights treaties and particularly by the UN Convention of the Rights of the Child (CRC), as well as by international humanitarian law treaties and rules of customary international law, have been violated. Children are being killed deliberately or in indiscriminate attacks, illegally detained, tortured, raped, abducted and recruited for military activities. Many Nepali children have for a long time experienced extreme poverty, lack of access to basic services, discrimination against girls and Dalit children, trafficking and sexual and commercial exploitation. The conflict is exacerbating many of these already existing abuses and eroding recent progress towards improving the lives of children.5

The Nepali children were directly targeted by all parties to the conflict, and in addition land mines, bombs and improvised explosive devices (IEDs) laid out by the CPN as well as by the security forces killed hundreds of children.6 Also, the children found IEDs including “socket bombs” around where they lived, in civilian areas, and did not understand that they were dangerous devices.

2

3 4

5 6

Press Conference by Special Representative for Children and Armed Conflict, p. 2 of 2, 16 March, 2007, http://www.un.org/News/briefings/docs/2007/070316_Coomaraswamy.doc.htm Erlanger, Steven, Years of Strife and lost hope scar young Palestinians, March 12, 2007, New York Times Office of the Special Representative of the Secretary-General for Children and Armed Confl ict, Report, Visit of the Special Representative for children and armed conflict to the Middle East, Lebanon, Israel and occupied Palestinian territory, 9-20 April, 2007, p. 4 Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 1 of 13 Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 2 of 13

Introduction

Many Nepali children have died from poverty and disease made worse by the conflict in a context where more than half of the population existing on one dollar a day or less.7 The lack of health care due to poverty and conflict led to a situation where half of the children because of malnutrition suffered from stunted growth, and every year about 30,000 children under five died from diarrhoea.8 Children that were thought to be affi liated with the CPN – the Maoist were held in detention in army barracks, police stations and adult prisons for extended periods of time, and they were many times held incommunicado without recourse to a legal remedy.9 The courts were often misled by the Nepali security forces and many times persons that were released by a judge’s orders were rearrested right away.10 The depth of the problems that children are faced with every day creates deep-seated emotional consequences that affect the behaviour of the children in fundamental ways. To live in a context of fear and chaos and to see family and friends die leads to a lot of confusion for children because they live with a fear and confusion that they do not understand. The lack of protection for children in conflicts results in the fundamental exposure of children to recruitment and abductions of various armed groups, militias as well as governmental forces. Many children become head of households or street children as a result of becoming orphaned because of war. The fact is that the children and their families are left to fend for themselves, in a context of no protection of civilians. This also leads to the issue of parental and family breakdown, in that many parents because of an overwhelming disastrous situation stop being able to care for their children. The situation also reflects the fact that there is very limited representation of children and their rights in peace negotiations. Children and their situation are not taken into account or being respected, they are merely viewed as victims of war and not as valuable participants of society. To truly respect the value and the dignity of children requires a fundamental shift in the attitudes towards children in our societies. There is a need of a much more focused and efficient policy of governments to address the situation of children, and that requires a serious examination of the different issues affecting children and youth in a more comprehensive way. It needs to be recognized that the situation for children in armed conflicts is fundamentally related to the underlying causes of conflicts. These causes range from what types of governmental systems exist, if oppression, exclusion, pov7 8 9 10

Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 2 of 13 Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 2 of 13 Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 3 of 13 Amnesty International, Nepal: Children caught in the confl ict, 2005, ASA31/054/2005, 25 July 2005, p. 4 of 13

3

4

Introduction

erty, discrimination, and marginalization are present, if human rights are being respected, if useful education is being provided, whether access to health care and work opportunities exist. Traditionally the focus has been on separate issues regarding children and armed conflict such as child soldiers, and not a comprehensive approach. A much deeper understanding of the underlying issues as they relate to children and youth in conflict situations is of great value not only in being able to provide actual protection for children and youth in the future, but also to help children and youth to actually heal and build a life worth living. There is a growing recognition that the underlying causes need to be taken into consideration when examining the situation for children and youth in armed conflict, which for instance the truth commissions for Sierra Leone and Liberia have done. The most vulnerable children, the poorest and most disadvantaged, are the most exposed to violations during current armed conflicts, but it is not by happenstance that they are not being reached, as for instance will be seen with regards to development work; according to the traditional policy it has been the most easy to reach that have been focused on and not the poorest and most disadvantaged as this approach has been seen as the most cost effective. The legal and social protection of children is very weak in many countries. The street children phenomenon is one reflection of this. Another reflection is the many children in orphanages, and the reasons for children being in these orphanages include that they have become abandoned by their parents when they divorce and that there is no legal requirement and/or enforcement of existing laws to have the parents or any other caregiver take care of the children. Instead the parents and governments rely on private initiatives, initiatives which are often both unregulated and random, when the adults and the state abdicate from their responsibilities to care for the children. In many societies when a child has become abandoned by their parents the extended family has stepped in and taken care of the child, but this has not been because of a legal requirement obliging them to do so, but because of cultural reasons and at their own volition. When there is a breakdown in the social structures due to war and/or social upheaval, these family or social support systems are not always available anymore. However, the real underlying issue is that in countries where the child has not had any legal rights and the legal and social protection are non-existent because the government and society have not provided for these, for the children in situations of war and conflict, poverty and social upheaval there is no underlying protection to begin with, so in crisis situations they become utterly vulnerable even more than before. The difference is that in such crisis situations their situation becomes so visible and can no longer be hidden away by ignorance or lack of care and attention.

1.

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

States must see their role as fulfilling clear legal obligations to each and every child. Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children.1 Legislation without supporting socio-economic changes may risk greater clandestine work and more exploitive work situations. This is not to undermine international laws focusing on economic exploitation. The ILO has acknowledged the role of law as a catalyst in bringing about the reforms protecting working children. However, international law can only succeed where it provides a framework which pays heed to all relevant economic, social and cultural factors affecting the child.2

1.1.

The Interdependence of Political, Civil and Economic, Social and Cultural Rights

There is developing a recognition that all human rights, political, civil, economic, social and cultural rights are interdependent and that the states need to give equal emphasis to these various rights. In terms of children the Committee on the Rights of the Child (the CRC Committee) has when discussing Article 4 of the 1989 UN Convention on the Rights of the Child (CRC) stated that the “[e]njoyment of economic, social and cultural rights is inextricably intertwined with enjoyment of civil and political rights … [T]he Committee believes that economic, social and cultural rights, as well as civil and political rights, should be regarded as justiciable.”3 Article 4 of the CRC reads: 1

2 3

Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 11 The then Director-General of the ILO in Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 263 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 6

6

Chapter 1

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.

The CRC Committee meant that the second sentence in the article was “a realistic acceptance” that limited financial and other resources could impede that economic, social and cultural rights be fully realized. The concept of “progressive realization” was instituted here entailing that “States need to be able to demonstrate that they have implemented ‘to the maximum extent of their available resources’ and, where necessary, have sought international cooperation.”4 The Committee gave reference to the Committee on Economic, Social and Cultural Rights (of the International Covenant on Economic, Social and Cultural Rights) stating that it “entirely concurs” with this Committee’s statement that “even where the available resources are demonstrably inadequate, the obligation remains for a State Party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances…”5 Here the CRC Committee emphasized that “[w]hatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups”.6 These include all rights, political, civil, economic, social and cultural rights, as the CRC Committee stated that the intention behind its General Comment No. 5 was “to promote the full enjoyment of all rights in the Convention by all children”, and that this should be accomplished by legislation, establishing coordinating and monitoring bodies (governmental and independent), comprehensive data collection, awareness-raising and training and developing and implementing appropriate policies, services and programmes.7 While stating that it was an obligation by the state parties to the CRC in order to ensure the full compliance of the Convention to have 4

5

6

7

Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 7 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 8, making reference to Committee on Economic, Social and Cultural Rights, general comment No. 3 (fi ft h session 1990) Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 8 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 9

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

“a comprehensive review of all domestic legislation and related administrative guidance”, the Committee also underlined that “[t]he review needs to consider the Convention not only article by article, but also holistically, recognizing the interdependence and indivisibility of human rights”.8 The CRC Committee has stated that governments need to develop a national strategy or plan of action for children which will specifically identify and prioritize the marginalized and disadvantaged groups of children, and that the strategy “must include a description of a sustainable process of realizing the rights of children throughout the State; it must go beyond statements of policy and principle, to set real and achievable targets in relation to the full range of economic, social and cultural and civil and political rights for all children.”9 The CRC Committee in its General Comment No. 7 (2005) on “Implementing child rights in early childhood” stated that one of the objectives with this Comment was “[t]o emphasize the vulnerability of young children to poverty, discrimination, family breakdown and multiple other adversities that violate their rights and undermine their well-being”, and said that not enough attention had been given to young children (up to 8 years) “as rights holders and to the laws, policies and programmes required to realize their rights during this distinct phase of their childhood”.10 In this Comment the Committee reaffirmed that the CRC was “to be applied holistically in early childhood, taking account of the principle of the universality, indivisibility and interdependence of all human rights”.11 The Committee underlined that all children, also the very youngest, were to be respected as persons in their own right, and “be recognized as active members of families, communities and societies, with their own concerns, interests and points of view”.12 The Committee “reminded” the state parties that the principle of survival and development could “only be implemented in a holistic manner, through the enforcement of all the other provisions of the Convention, including rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play (arts. 24, 27, 28, 29 and 31), as well as through respect for the responsibilities of parents and the 8

9

10

11 12

Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 18 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 28, 29, 30, 32 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, para. 2 (f), 3, 4 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, para. 3 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, para. 5

7

8

Chapter 1

provision of assistance and quality services (arts. 5 and 18)”.13 Here the Committee stated that with regards to access to services (e.g. health care and education) “particular attention” should be given by the governments to the most vulnerable groups of young children as well as to those who were at risk of being discriminated against (Article 2) such as:14 girls, children living in poverty, children with disabilities, children belonging to indigenous or minority groups, children from migrant families, children who are orphaned or lack parental care for other reasons, children living in institutions, children living with mothers in prison, refugee and asylum-seeking children, children infected with or affected by HIV/AIDS, and children of alcohol- or drug-addicted parents.

In this respect the CRC Committee highlighted the especially difficult circumstances that children encounter and that the CRC cover, and the corresponding rights that the states parties have an obligation to protect “in every circumstance”: abuse and neglect (Article 19), children without families, such as because of armed conflicts (Articles 20 and 21), refugees (Article 22), children with disabilities (Article 23), harmful work (Article 32), substance abuse (Article 33) sexual abuse and exploitation (Article 34), sale, trafficking and abduction of children (Article 35), deviant behaviour and law-breaking (Article 40), and urged the states parties that in all of these circumstances and all other forms of exploitation (Article 36) they would “incorporate the particular situation of young children into all legislation, policies and interventions to promote physical and psychological recovery and social reintegration within an environment that promotes dignity and self-respect (art. 39)”.15 In the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in Vienna 1993, the member states of the UN agreed that “the promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations”, and firmly established that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, and that “it is the duty of States … to promote and protect all human rights”.16 As the states are obliged to ensure all human rights, political, social, economic, social and cultural, the Vienna Declaration specifi-

13 14 15

16

Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, para. 10 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, para. 24 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev.1, 20 September 2006, VI. para. 36 (a)-(i) and para. 37 General Assembly, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, para. 4-5

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

cally made reference to the CRC, and with regards to children, including those children affected by war and conflict, stated that:17 National and international mechanisms and programmes should be strengthened for the defence and protection of children, in particular, the girl-child, abandoned children, street children, economically and sexually exploited children, including through child pornography, child prostitution or sale of organs, children victims of diseases including acquired immunodeficiency syndrome, refugee and displaced children, children in detention, children in armed confl ict, as well as children victims of famine and drought and other emergencies.

The Vienna Declaration also stated that in the UN’s human rights work, the human rights of children “should be a priority”.18 Recognizing the interdependence of all human rights of children, including economic and social rights, and the situation for children in armed conflict, the UN General Assembly has reaffirmed the “roles of the General Assembly, the Economic and Social Council and the Human Rights Council for the promotion and protection of the rights and welfare of children, including children affected by armed conflict, and notes the increasing role played by the Security Council in ensuring protection for children affected by armed conflict”.19 As a result of the “Day of general discussion on ‘resources for the rights of the child-responsibilities of states’” in 2007, which was convened by the CRC Committee with the purpose to discuss with regards to the obligations of state parties to the CRC the second part of Article 4 of the CRC: “With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation”; the CRC Committee making reference to the concept of “investing in children” as having been “widely accepted as the best guarantee for achieving equitable and sustainable human development and a fundamental requirement for social and economic priorities of any government”, made several recommendations to states parties emphasizing that all human rights, economic, social, cultural, political and civil rights were interdependent and indivisible.20 The Committee recommended that as states parties were under the obligation to implement legislative measures according to Article 17 18 19 20

General Assembly, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, para. 21 General Assembly, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, para. 21 General Assembly, Resolution adopted by the General Assembly, 62/141. Rights of the child, A/RES/62/141, 22 February 2008, p. 43 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 27

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4, a part of the public expenditure of the states should be designated to children by law, as a fundamental “pre-condition for an equitable and effective allocation of resources” was to have a sufficient legislative framework.21 With regards to the requirement of the “maximum extent of available resources” the Committee recommended that measurable indicators be implemented by states with the assistance of UNICEF to monitor and evaluate if the economic, social and cultural rights of the children have been implemented.22 Here the Committee also noted that “available resources” included different forms of resources apart from financial resources, like human (such as parents and families) and organizational resources.23 The CRC Committee recommended that states in their budgetary allocations made the rights of children a priority, that a public dialogue about state budgets be encouraged, that a system of data collection be established, that the participation of children in the budget processes be encouraged, and that children’s economic, social and cultural rights be awarded “full justiciability” by domestic adjucating bodies so that these rights would be realized.24 In addition regarding the principle of the “progressive realization” of the economic, social and cultural rights, the Committee noting that this principle was “often misunderstood” recommended “that progressive realization be understood as imposing an immediate obligation for States Parties to the Convention to undertake targeted measures to move as expeditiously and effectively as possible towards the full realization of economic, social and cultural rights of children”.25 Here the Committee emphasized that no matter the resources available, the states had an obligation to for instance immediately ensure the non-discrimination rule regarding children benefitting from these rights and that they were obliged “to take immediate steps towards their realization”.26 This obligation included ”not to take any retrogressive steps”. 21

22

23

24

25

26

Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 22-23 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 38-39 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 24-25 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 30 (a), 34 (a-b), 36, 44 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 46-47 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited ver-

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Furthermore, the Committee stated that “the State parties are under the obligations to satisfy at least the core minimum content of economic, social and cultural rights” and made reference to the statement of 2007 on “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant” issued by the UN Committee on Economic, Social and Cultural Rights where special criteria had been established to be used as guidance.27 The Committee argued here that in the event of an Optional Protocol to the Covenant that would establish an individual complaints mechanism, the Committee in cases where it was considering whether a state party to the Covenant and to such an Optional Protocol had taken the “adequate” or “reasonable” actions in accordance with its “maximum available resources” could “take into account” issues such as:28 (a) (b) (c) (d) (e) (f)

the extent to which the measures taken were deliberate, concrete and targeted towards the fulfi lment of economic, social and cultural rights; whether the State party exercised its discretion in a non-discriminatory and non-arbitrary manner; whether the State party’s decision (not) to allocate available resources is in accordance with international human rights standards; where several policy options are available, whether the State party adopts the option that least restricts Covenant rights; the time frame in which the steps were taken; whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups and, whether they were nondiscriminatory, and whether they prioritized grave situations or situations of risk.

The UN Committee on Economic, Social and Cultural Rights in addition stated in this statement that it would take into consideration, when assessing “on a country-by-country basis” if a state party was to claim that “resource constraints” had

27

28

sion, 5 October 2007, para. 47 Committee on the Rights of the Child, Day of General Discussion on “Resources for the rights of the child-Responsibility of states”, 21 September 2007, Unedited version, 5 October 2007, para. 49: Committee on Economic, Social and Cultural Rights, Statement “An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant,” E/C.12.2007/1, of 10 May 2007 Committee on Economic, Social and Cultural Rights, Statement “An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant,” E/C.12.2007/1, of 10 May 2007, para. 8 (a)-(f)

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been the reason “for any retrogressive steps taken” with regards to the economic, social and cultural rights, the following issues:29 (a) (b) (c) (d)

(e) (f)

the country’s level of development; the severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core of the Covenant; the country’s current economic situation, in particular whether the country was undergoing a period of economic recession; the existence of other serious claims on the State Party’s limited resources; for example, resulting from a recent natural disaster or from recent internal or international armed conflict; whether the State party had sought to identify low-cost options; and whether the State party had sought cooperation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reason.

The UN General Assembly on 10 December 2008 adopted an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in which an individual complaints mechanism has been established, and it will enter into force when ten states parties have either ratified or acceded to the Protocol.30 In this new Optional Protocol the states parties first reaffirmed “the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms”, and further recalled “that each State Party to the International Covenant on Economic, Social and Cultural Rights … undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures”.31 In Article 1(1) of the Optional Protocol on the Competence of the Committee to receive and consider communications it is stated that: “A

29

30

31

Committee on Economic, Social and Cultural Rights, Statement “An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” Under an Optional Protocol to the Covenant,” E/C.12.2007/1, of 10 May 2007, para. 10 (a)-(f) Article 18, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/RES/63/117, adopted by the UN General Assembly 10 December, 2008: Article 18(1): “The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.” At the time of writing, there are 40 signatories and 8 States parties have ratified or acceded to the Protocol, http://treaties.un.org, 7/23/2012 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/RES/63/117, adopted by the UN General Assembly 10 December, 2008, Preamble

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.” Further in Article 2 of the Protocol on Communications it is stated that: “Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.” In the light of its 2007 statement “An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ Under an Optional Protocol to the Covenant” it is going to be interesting to see how the Committee on Economic, Social and Cultural Rights will interpret the rights in cases brought before it when the Optional Protocol has entered into force. The International Covenant on Economic, Social and Cultural Rights (ICESCR) applies to everyone, adults and children alike, but it also recognizes a set of specific rights of children and that children in addition to adults are entitled to special measures of protection and assistance in Article 10(3).32 Article 10(3) of the ICESCR states that:33 Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.

The Committee on Economic, Social and Cultural Rights (CESCR) has stated that Article 10(3) is self-executing and as such can be directly applied by judicial organs or other organs in different legal systems.34 As Chirwa has noted the ICESCR has not included a complaints mechanism and as a result Article 10(3) has not been applied to its full extent, however with the new Optional Protocol 32

33

34

Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 93 International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27 Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 93

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to the International Covenant on Economic, Social and Cultural Rights there is a potential that this provision will be enforced.35 As was noted in the 2007 statement the Committee would take into consideration that a specific country has been in an internal or international armed conflict when examining if a said state party has been in violation of the Covenant. In the CRC, the right to survival and development is considered to be an umbrella right and a number of core children’s socio-economic rights can be drawn from this.36 Both the right to life in terms of a children’s enjoyment of life and “the right to protective and other positive measures” deemed as required for children’s survival and development are included in this umbrella right.37 This way Chirwa means the CRC makes economic, social and cultural rights equally important as it does political and civil rights, and in the case of child poverty ensures that national courts need to address this issue. The CRC gives states a direct responsibility to secure a number of rights of children, such as the right to education, the right to health and the rights of disabled children to a full and decent life, and as Chirwa means while the CRC does not afford states the obligation to give priority to children’s socio-economic rights in general terms the Convention still obliges states in some provisions to give preference if not priority to the human rights of children when human rights are being implemented.38 These cases include Article 37 regarding procedural and substantive rights and Article 38 which prohibits the conscription of children below the age of 15 years into direct hostilities, and which limits the recruitment into regular armed forces for children between ages 15 and 18. This means according to Chirwa a development towards giving an obligation to states to also give the socio-economic rights of children priority, a “first call for children”, a guiding principle adopted by the representatives at the World Summit in 1990 and which the CRC Committee subsequently has increasingly affirmed.39 The princi35

36 37

38

39

Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 93; and Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/RES/63/117, adopted by the UN General Assembly 10 December, 2008: See for further discussion on the Covenant on Economic, Social and Cultural Rights in Chapter 2 on the right to health. Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 93 Hammarberg 2001 in Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 93 Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 94 Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 94-95

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

ple of a “first call for children” was adopted to guide the states in implementing the goals by year 2000 of the World Declaration on the Survival, Protection and Development of Children and the Plan of Action for Implementing the World Declaration in the 1990s of the World Summit for Children as well as the CRC, and this principle meant that “the essential needs of children should be given high priority in the allocation of resources, in bad times as well as in good times, at national and international as well as at family levels”.40 The African Charter on Human and People’s Rights (ACHPR) has given socio-economic rights equal importance as it has to civil and political rights, which has been widely acknowledged.41 As Chirwa has stated: It remains the only international treaty that subjects the whole range of socio-economic rights protected under it to the communications procedure. The ACHPR includes the right to health, education, family protection and work. In addition, it protects the so-called ‘third generation’ rights to existence and self-determination, to sovereignty over natural resources, development, peace and a generally satisfactory environment. All these rights are critical to the fight against deprivation, and their realization holds the key to unlocking the full potential of children in Africa.42

The African Charter on the Rights and Welfare of the Child (ACRWC) also makes no distinction between political, civil, economic, social and cultural rights; however the ACRWC has only made a limited “contribution” to socio-economic rights as it does not add any new rights compared to the ACHPR but only reconfirms the same rights specifically for children and in a much more comprehensive way.43 Furthermore, it has been viewed as a major disappointment that the rights to social security, adequate housing, and adequate standard of living and adequate food have not been explicitly acknowledged in the ACRWC, which the ACHPR does not do either.44 As the work of the African Commission on Human and Peoples’ Rights on how to interpret the socio-economic rights as provided for 40

41 42

43

44

UNICEF, First Call for Children, World Declaration and Plan of Action from the World Summit for Children, Convention on the Rights of the Child, 30 September, 1990, Foreword Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, Chapter 6, in Sloth-Nielsen J., Ed., Children’s Rights in Africa, 2008, p. 96 Chirwa, D., M., Combating child poverty: the Role of Economic, Social and Cultural Rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 96 Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 96 Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 96

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in the ACHPR should be used as guidance for the interpretation of the ACRWC by the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the ACERWC is in addition able to apply, in order to strengthen these rights, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (AWP or the Maputo Protocol), which was adopted in July 2003 in Maputo in Mozambique and entered into force in November 2005.45 The Protocol also addresses the rights of girls, as the Protocol defines “women” as “persons of female gender, including girls”.46 This Protocol provides with regards to socio-economic rights the rights of women and girls to social security and insurance, housing, and food security and food, which neither the African Children’s Charter nor the ACHPR have “expressly recognized”.47 Furthermore the Protocol affords health and reproductive rights (Article 14) including the right to abortion in certain circumstance (Article 14(2)(c)), and importantly inheritance rights to women and girls (Article 21).48 Furthermore in its Article 19, the Protocol gives women the right to sustainable development and provides that a gender perspective needs to be employed in national development planning procedures, that women have the right to participate at all levels with regards to development policies and programmes, and that the impact of development policies and programmes on women needs to be taken into account.49 Concerning development policies and programming as they relate to children, when interpreting the ACRWC to this regard, to apply a child perspective, have children participate (to the extent possible) and examine the impact of such policies and programming on children is proposed by Chirwa to guarantee the implementa-

45

46 47

48

49

Chirwa, D., M., Combating Child Poverty: the Role of Economic, Social and Cultural Rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 97: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Adopted in Maputo, Mozambique, 11 July 2003, Entered into force on 25 November 2005, www.africa-union.org Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (AWP or the Maputo Protocol), art. 1 (k) Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 97; and African Protocol on Women’s Rights, Arts. 13, 14, 15, 16, 21 Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 97; and African Protocol on Women’s Rights, Arts. 14 and 21: article 21 (2): Women and men shall have the right to inherit, in equitable shares, their parents’ properties. Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 97

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

tion of the socio-economic rights of children.50 Given that the Maputo Protocol also applies to girls, this suggestion has much relevance. Furthermore, as Chirwa notes, in order for the socio-economic rights of children to be fully implemented and protected in the African region, it is the duty of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the African Commission on Human and Peoples’ Rights and the African Court on Human and People’s Rights to clarify the positive obligations of the states regarding these rights.51 With democratic political systems still developing, corruption and state capacity challenges with regards to development programming, Chirwa argues that “[t]he African situation requires stringent benchmarks directing States to give priority to implementing the rights of such vulnerable groups as children”.52 The American Convention on Human Rights of 1969 obliges the states parties to achieve the full realization of economic, social and cultural rights; however it is to be done in a “progressive” manner, as it is stated in Chapter III on Economic, Social and Cultural in Article 26 of the Convention titled “Progressive development” that:53 The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social and educational, scientific and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

This Article needs to be read in conjunction with Article 1 of the American Convention where the states parties are under the obligation to respect the rights of the Convention also of children as they54

50

51

52

53 54

Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 98 Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 99 Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 99 American Convention on Human Rights “Pact of San José, Costa Rica, Adopted November 22, 1969, entered into force July 18, 1978, article 26 American Convention on Human Rights “Pact of San José, Costa Rica, Adopted November 22, 1969, entered into force July 18, 1978, article 1

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1.

2.

undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. For the purposes of this Convention, “person” means every human being.”

The American Convention was strengthened in the area of economic, social and cultural rights with the adoption of the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights “Protocol of San Salvador”, which was adopted in 1988 but did not enter into force until 1999.55 The Additional Protocol recognizes the interdependence of all rights, political, civil, economic, social and cultural, and as is stipulated in the Preamble “the different categories of rights constitute an indivisible whole based on the recognition of the dignity of the human person, for which reason both require permanent protection and promotion if they are to be fully realized, and the violation of some rights in favor of the realization of others can never be justified”. Making reference to the “available resources” and their “degree of development”, the states parties to the Additional Protocol are in Article 1 under the obligation to adopt measures, and “undertake to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol”. This includes an obligation to adopt domestic legislation to make the “rights a reality” according to Article 2 of the Additional Protocol.56 The Additional Protocol has 16 ratifications, which include Colombia (1997), El Salvador (1995), Guatemala (2000) and Peru (1995).57

55

56

57

Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights “Protocol of San Salvador”, Adopted in San Salvador, El Salvador, 11/17/88, entry into force 11/16/99, after eleven states had ratified it, www.oas.org/juridico/english/sigs/a-52.html Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights “Protocol of San Salvador”, Article 2: “Obligation to Enact Domestic Legislation: If the exercise of the rights set forth in this Protocol is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Protocol, such legislative or other measures as may be necessary for making those rights a reality”. As of October, 2011, www.oas.org/juridico/english/sigs/a-52.html

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

1.2.

The Pre-Existing Environment Children and Youth Grow Up In

The state parties to the Convention on the Rights of the Child consider that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.58

Children and youth all over the world are subjected to grave human rights violations and their rights such as the right to life, right to live in dignity and their right to education are persistently violated. There is a growing recognition that the underlying causes of conflicts such as repressive regimes, corruption, poverty, discrimination, inequality and lack of human rights protection all contribute to the fundamental exposure and abuses of children and youth in armed conflict. The pre-existing conditions are often incredibly difficult for children and the preexisting domestic legal situation and institutions are many times weak. The view of the child and the child’s place in society, in their communities and in their families are often dismissive and negligent of the child and children are not well respected in their own right. Many times the national legislations do not offer much protection of children as children are not viewed as being individuals with their own set of rights, they are viewed as objects of rights instead of subjects of rights. In countries such as Colombia, the Democratic Republic of Congo (DRC), Sri Lanka and Nepal the government has had no or very limited presence in many parts of the country regardless of conflict. Pre-existing social and economic conditions, such as exclusion, poverty, access to health care and education, have disproportionally affected certain groups or areas. People have had to fend for themselves, and there has been no place to turn to for help and protection. Many times it is the governmental representatives such as the police and army, when present, that have been very abusive of the civilians. The pre-existing environment that children grow up in is related to children’s exposure and to the violations of children’s rights in armed conflict. Within this context UNICEF developed the concept of “creating protective environments” for children in order to prevent exposure of children and violations of children’s rights in peace and in conflict, and to identify what makes up a protective environment UNICEF identified eight elements:59

58

59

The Preamble to the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990. UNICEF, Child protection from violence, exploitation and abuse. Unicef in action, November 27, 2007, www.unicef.org

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1. 2. 3. 4. 5. 6. 7. 8.

Attitudes, traditions, customs, behaviour and practices Governmental commitment to fulfi lling protection rights Open discussion and engagement with child protection issues Protective legislation and enforcement The capacity to protect among those around children Children’s life skills, knowledge and participation Monitoring and reporting of child protection issues Services for recovery and reintegration

UNICEF argued that if one of these elements is not present, that increases children’s susceptibility to abuse, violence, discrimination and violations of their rights.60 As a more comprehensive strategy to improve its response to the reality of children, the UNICEF in 2008 established its Child Protection Strategy (CPS), which is built on two pillars and this strategy is valid in all situations, also in emergencies including armed conflict, and consists of: “1) strengthening child protection systems – including laws, policies, regulations and services across all social sectors but especially social welfare, education, health, security and justice, and 2) supporting social change that contributes to improved protection of children from violence, exploitation and abuse”.61 This new strategy was a recognition that prevention and a holistic approach to child protection needed to be implemented in contrast to the more traditional approach which focuses on issue specific small-scale projects for specific groups.62 This systems approach focuses on improving child protection systems such as “laws, policies, services across all sectors, especially social welfare, education, health, security and justice”, and recognizes that at the same time social norms that are discriminatory also must be dealt with as these norms are the causes of “many forms of violence, exploitation and abuse.”63 As UNICEF has stated, “[a]pplication of this two-pronged strategy in any context, including in emergency and recovery settings, builds on protective assets, addresses a range of vulnerabilities and ensures more sustainable protection outcomes for children”.64 This approach to child protection also needs to be evidence-based, and data collection from for instance Multiple Indicator Cluster Surveys (MICS) and Demographic and Health Surveys (DHS) have developed, and this is an area that UNICEF plans to expand through differ60 61 62 63 64

UNICEF, Child protection from violence, exploitation and abuse. Unicef in action, November 27, 2007, www.unicef.org UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 3 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 4 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 5 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 5

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

ent partnerships within the UN, and with NGOs, academic institutions and the UNICEF Innocenti Research Centre.65 Different trends have been noticeable in the work of the UNICEF since the implementation of this policy such as that at the national level capacity-building and accreditation of social workers and a change from juvenile justice to justice for children have developed, while issues such as birth registration are on-going problems.66 With regards to applying the system approach to child protection in emergencies, UNICEF has taken on a leading role in humanitarian coordination, intensified such a role regarding gender-based violence both at global and country levels, and created partnerships with and capacity-building of social welfare ministries and social workers, and improved the Inter-Agency Child Protection Information Management System.67 Other child protection issues in emergencies such as child disarmament, demobilization and reintegration, separated and unaccompanied children, psychosocial support, gender-based violence and mine action are further issues that the UNICEF continues to work on.68 The pre-existing conditions in conflict-societies are beginning to be recognized in relation to for instance the targeting of schools, students and teachers in many conflicts. In recent years schools and students and teachers have been exceptionally targeted in conflict countries, and it has also become recognized that there is a need to understand the reasons to why these attacks occur and why the schools, students and teachers are viewed as legitimate targets by the different combatants.69 As Sheldon Shaeffer has argued, “[i]t is especially important that schools are sanctuaries for children. Genuinely child-friendly schools, where cultural, religious and linguistic diversity is respected and welcomed, can do much in the long-term to stop the increasingly critical cycle of violence against children.”70 It is now recognized that for countries affected by armed conflict 65 66 67 68 69

70

UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 4-5 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 3 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 4 UNICEF, Thematic Report 2009, Child protection from violence, exploitation and abuse, p. 4 See further O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, and O’Malley, B., Education under Attack 2010, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, aid workers and institutions, UNESCO, 2010, and the Chapter on Education in book. In O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 36

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with regards to education, it is not only a matter of providing an education as part of an emergency response, but “to promote and protect mutual, inclusive education” for the children and the young population in these countries.71 One can no longer separate the reasons for why specific attacks occur from the pre-existing conditions since they do not take place in a vacuum. The breakdown of the traditional societal structures in African countries as a cause of corruption, poverty, disease, HIV/AIDS, armed conflict, social and political insecurity has profound negative consequences for especially children whose former protective measures which their parents and teachers could provide are gone.72 In Uganda high levels of poverty, HIV/AIDS, social and political insecurity have negative consequences for the integrity of the family, in addition leading to a situation where the quality of care their parents, teachers and others provide has deteriorated.73 The main reasons for defi lement of girls in Uganda are especially poverty and the loss of parents, and in these circumstances where the traditional social order is breaking down “the girl child has come to recognize that consent to sex could be an effective survival tool in economic hardships”.74 However, it is not only the breakdown of the traditional social order that is the cause of sexual abuse and exploitation of especially girl children, traditional culture also plays a role. In these situations “traditional culture in some cases, may have permitted sexual abuse to occur, for example, by permitting sexual contact with a wife’s younger sisters, allowing child marriage, perpetuating male dominance over women, and encouraging submissiveness on the part of girls and women, thus making them particularly vulnerable to sexual abuse”.75 Another example of where traditional culture has not always been conducive to the protection of the integrity of the child is in the realm of traditional healers of which some traditional healers “have been known in some cases to ‘prescribe’ sex with a daughter as a remedy for various problems the father may have been experiencing in health or business”.76 These are all examples of child sexual abuse, and there is a need to acknowledge that, as research has shown in Uganda, that child sexual 71

72 73 74 75 76

O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 36 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 386 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 386 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 386 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 387 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 387

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

abuse does have serious consequences for the child such as “personality changes, withdrawal or depression, inability to concentrate, destructive or self-destructive behavior, regression to younger behaviours, eating and/or sleeping problems, running away, problems at school, attempted suicide, or abuse of alcohol and drugs”.77 It is very common for the child victim to repress the memory of the abuse as a response to how traumatic it was and as a result the child might not until much later in life allow for the memory to re-surface many times at great additional pain.78 Research in Uganda of girls who have been sexually abused has also revealed that some of these girls have “a limited tolerance for happiness, suffer active withdrawal from happiness and are reluctant to trust it. There is, therefore, general monitoring of one’s words.”79 Furthermore this research showed that for some girls the experiences of having been sexually abused are so traumatic that they forget that it occurred, and that these girls have been found to have problems with relationships, sex, trust, touch, intimacy, addictions, depression and guilt.80 As has been noted in this context, “when the cause of guilt is unknown, it can make one feel crazy and out of control.”81 This shows how vital it is that sexual violence and traumatic experiences are being addressed properly and taken seriously and that girls and young women are being reached so that they can get help to process their experiences. Sexual abuse of girls in schools has taken place in for instance Uganda, Kenya and South Africa in the context of conscious views of women as inferior, and women being oppressed and subordinated living in societies with patriarchal male-dominated structures.82 That for instance sexual violence in Kenyan schools is a very widespread practice was revealed by the Kenyan Teachers Service Commission (TSC) that together with the Centre for Rights Education and Awareness came out with a report in November 2009, in which it was stated that “[u]p to 12,660 girls were sexually abused by teachers over a five-year period”, and that, “in some cases, teachers abused as many as 20 girls in a single school 77 78

79 80 81 82

Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 387-388 In the United States with regards to sexual abuse of children, the statute of limitation will have as its starting point the time when the memory start to re-surface, which means that the injury has been discovered, in Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 388 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 383 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 383 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 383 Grant Bowman, C. and Kuenyehia, A., Women and Law in Sub-Saharan Africa, 2003, p. 475

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before they were reported”.83 This survey covered the period between 2003–2007 and it was reported that “some teachers were serial sexual offenders and molested girls from one school to another because when caught they were simply transferred and no action was taken against them”. During this time period 633 teachers had been charged with sexual abuse, and this was considered to be “the tip of the iceberg” as the majority of cases were never reported and as one officer said “[s]exual abuse of schoolgirls is rampant but the reports do not get to TSC”. Victims were at times found to be intimidated by education officials and the offenders, and the disciplinary procedures of the TSC were not known to the parents, and they “sometimes preferred to hush up the abuse for fears that their daughters would be stigmatized”. Another challenge was informal settlements, of which local leaders and administrators including councillors, chiefs, and village elders were in charge. Compensation in the form of cash was at times offered to some of the abused girls and their parents, or the teacher being guilty would suggest that he marry the girl he abused. In the subsequent section different forms of violence against children such as corporal punishment and harmful traditional practices will be examined, as being part of the pre-existing societal conditions in different countries. 1.2.1.

Violence Against Children

1.2.1.1.

Corporal Punishment and Other Cruel, Inhuman or Degrading Treatment

One important issue which reflects the disheartening view of many that children do not deserve to be treated with respect and to have their dignity protected is the use of corporal punishment of children both in families and in educational settings as a form of discipline. Mistreatment and the use of corporal punishment at home leads to a situation where many children only want to get out of their homes and is one reason why both teenage boys and girls in Colombia for instance choose to join an armed group in order to escape from home. There were only 24 countries in the world that have laws that prohibit corporal punishment of children in the home as of September 2009.84 As the Inter-American 83

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Daily Nation, Report: Shocking details of sex abuse in school, November 2, 2009, p. 1 and 2: All the information in this section on sexual violence in schools in Kenya comes from this article. Inter-American Commission on Human Rights, Rapporteurship on the Rights of the Child, Report on Corporal Punishment and Human Rights of Children and Adolescents, “promoting the defense and respect of human rights of children and adolescents in the Americas”, OEA/Ser.L/V/II.135, Doc. 14, 5 August, 2009; The 24 countries were Sweden (1979), Finland (1983), Norway (1987), Austria (1989), Cyprus (1994), Denmark (1997), Latvia (1998), Croatia (1999), Bulgaria (2000), Israel (2000), Germany (2000), Iceland (2003), Ukraine (2004), Romania (2004), Hungary (2005),

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Commission has stated, within the context of the member states of the OAS most have ratified the UN Convention on the Rights of the Child (CRC), but only some of them have actually adjusted in full their own legal standards to comply with this Convention.85 Some countries do not ban corporal punishment of children in neither family or educational settings (such as El Salvador and Guatemala), some ban corporal punishment only in educational settings but not in the family (such as the US and Colombia), while some countries allow for corporal punishment in schools (such as in Belize and Grenada).86 The Inter-American Commission on Human Rights requested in late December 2008 that the Inter-American Court on Human Rights deliver an Advisory Opinion on “whether the use of corporal punishment as a method for disciplining children and adolescents is incompatible” with the American Convention (Articles 1(1), 2, 5(1) and (2), and 19), Article VII of the American Declaration of Human Rights and Duties and the UN Convention on the Rights of the Child.87 The Court decided that it would not deliver an Advisory Opinion because the view of the Court on the matter could be “drawn from a full analysis and interpretation of the body of jurisprudence of the Tribunal regarding the rights of the child and relating to other criteria established for the child, as well as from the obligations issued by other international instruments ratified by the States in the region”.88 As a response to the request the Court made reference to the CRC saying that the best interests of the child principle must be taken into consideration in all cases concerning children’s upbringing and development including by their parents or legal guardians.89 The Court also referred to the CRC with regards to the principle that no child be subjected to torture or other cruel, inhuman or degrading treatment or punishment which the states are obliged to

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Greece (2006), The Netherlands (2007), Portugal (2007), Spain (2007), New Zealand (2007), Uruguay (2007), Venezuela (2007), Costa Rica (2008) and Moldova (2008); www.cidh.org Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, Having seen, para. 4 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009 Having seen, footnotes 3, 4, 5 in para. 4 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, para. 1 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 15 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 5

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ensure. In addition, the Court referred to General Comment No. 8 issued by the UN Committee on the Rights of Children, and in which the Committee defines which acts constitute “corporal punishment” and “other cruel or degrading forms of punishment”, and which acts that are not compatible with the Convention regardless of whether they have been committed in the home, family or in any other environment.90 The Court also made reference to the fact that in General Comment No. 8 the Committee set up certain standards that included legislative, educational, monitoring and evaluation measures with the purpose of ending the practice of corporal punishment and other cruel or degrading forms of punishment. The Committee in its General Comment No. 8 stated that it does not ban the positive concept of discipline, but that the principle of the minimum necessary use of force for the shortest period of time possible needed to be respected. The Court also stated that the Committee stipulated that it is an immediate and unqualified obligation of the states parties to the CRC to put an end to the practice of corporal punishment of children.91 In its decision the Inter-American Court made reference to its Advisory Opinion OC-17/02 in which it interpreted Article 19 of the American Convention to mean that the states are obliged “to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities or in relations among individuals or with non-governmental entities”.92 The Court continued that in Advisory Opinion OC-17/02 it had stated that children have rights by themselves and that they are not only an object of protection, continuing that the Court in its Advisory Opinion had referred to the CRC stipulating “that children have the same rights as all human beings – minors or adults”.93 As to whether a state had the obligation to introduce legislation and other measures that would ban corporal punishment of children in family and public settings, the Court again referred to its Advisory Opinion OC-17/02 in which it had stipulated with respect to Article 2 of the American Convention and children’s rights that “according to the provisions set forth in the Convention on the Rights of the Child, children’s rights require that the State not only abstain from unduly interfering in the child’s private or family relations, but also that, 90

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Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 6 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 6 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 9 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 10

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

according to the circumstances, it take positive steps to ensure the exercise and full enjoyment of those rights”.94 The Court continued that states are obliged to take positive measures “to protect children against mistreatment”, and as it had decided in an earlier case when stating that if states “have a positive obligation to adopt the legislative measures necessary to guarantee the exercise of the rights recognized in the Convention, it follows, then, that they also must refrain both from promulgating laws that disregard or impede the free exercise of these rights, and from suppressing or modifying the existing laws protecting them”.95 In this context, the Court stipulated that according to Article 2 of the American Convention, the states have a general duty to adopt two kinds of measures.96 These include to eradicate norms and practices that are detrimental to a child’s enjoyment of his/her rights in the Convention as well as developing norms and practices that enable for the child to enjoy his/her rights. As part of a special duty to protect life and personal integrity, the Court said that states are obliged to regulate and supervise actions taken by “both public and private entities that provide services which affect the life and personal integrity of people” since the state has the responsibility for these acts.97 International liability according to the American Convention covers acts that private entities acting in a state capacity and third parties have committed “when the State fails to fulfi ll its duty to regulate and supervise them”.98 Finally, the Court said that when it comes to cases “in which the State has a duty to act as a guarantor” for the rights of children, the state “must be all the more diligent and responsible in its role as guarantor and must take special measures based on the principle of the best interests of the child”.99 The Court

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Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 11 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 12 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 12 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 13 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 13 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. para. 14

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made a comment here on the issue of the detention of children that “to protect a child’s life, the State must be particularly attentive to that child’s living conditions while deprived of his or her liberty”, and that it had previously “fully set out” the states’ obligations regarding the protection of detained persons against mistreatment. Here the Court noted that it had made a reference in cases before it to the American Convention “with regards to the prohibition of mistreatment as a method for imposing discipline on detained minors”.100 1.2.1.1.1.

The United Nations Committee on the Rights of the Child and Corporal Punishment

Another result of the two days general discussion on violence against children in 2000 and 2001, and a recognition of that there is a very widespread practice of corporal punishment against children worldwide, was that the UN Committee on the Rights of the Child issued its General Comment No. 8 (2006) to highlight that it is an obligation of all the states parties to the Convention “to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children and to outline the legislative and other awareness-raising and educational measures the States must take”.101 The Committee further recognized the need that corporal punishment be eradicated within the family, schools and other settings, arguing that it was not only an obligation of states to do this but “a key strategy for reducing and preventing all forms of violence in societies”.102 The Committee has since the beginning of its work focused attention on the right of children to be protected from all forms of violence, and has been greatly concerned about both the widespread legality of corporal punishment in the world and the widespread social approval of the practice.103 Within the context of 100 Inter-American Court of Human Rights, Resolution of the Inter-American Court of Human Rights, Request for advisory opinion presented by the Inter-American Commission on Human Rights, 2009, II. footnote omitted, para. 14: the American Convention Article 5. Right to Human Treatment, para. 2: No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. Article 5, para. 5: Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 101 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), The rights of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), para. 2 102 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 3 103 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 4

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

its reviewing of state reports delivered to it on the state of the child in respective states, the Committee had made the recommendation to prohibit all forms of corporal punishment to 130 states in all continents since it started reviewing such reports.104 This additional attention and its recommendations have had some positive effect in that corporal punishment in schools and in children’s penal systems had become prohibited in more than 100 states as of 2006. Furthermore, the CRC stated that more states are prohibiting corporal punishment in the home, family settings and in all types of alternative care. The Committee’s definition of “corporal” or “physical” punishment is “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (smacking, slapping, spanking) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices).”105 Furthermore, the Committee acknowledges that non-physical forms of punishment are in addition to be considered as cruel and degrading and that they include “punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child”.106 The Committee underlines in General Comment No. 8 that all corporal punishment, physical and non-physical is degrading and as such not compatible with the CRC. The Committee applies a broad view in terms of where corporal punishment occurs and recognizes that it is carried out in many different situations in society, in “the home and family, in all forms of alternative care, schools and other educational institutions and justice systems – both as a sentence of the courts and as a punishment within penal and other institutions – in situations of child labour, and in the community”.107 The Committee does not reject “the positive concept of discipline”, and makes a distinction between necessary physical actions and interventions to protect children for their own good by their parents or legal guardians, and the use of deliberate and punitive force which causes “some degree of pain, discomfort or humiliation”.108 Furthermore, the Committee acknowledges that in various 104 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 5 105 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 11 106 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 11 107 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 12 108 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 13-14

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school and educational settings such as in institutions and with those children who are in conflict with the law, the teachers and other people working with children might be faced with dealing with behaviour by a child deemed dangerous and where there is a justification to use a degree of force to be able to control the behaviour.109 However, in this context the Committee makes the distinction between the use of force that is motivated by the need to protect children or others, and to use force with the intent to punish. As the Committee underlines, in these situations “[t]he principle of the minimum necessary use of force for the shortest necessary period of time must always apply”, and that no method is to “involve the deliberate infliction of pain as a form of control”.110 The Committee, referring to Article 37 of the CRC which states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”, as well as to how Article 19 of the CRC complements this provision stating that all states “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”, clearly stated that there is “no ambiguity” that “all forms of physical or mental violence” means that any legalized violence against children is prohibited.111 Concerning school discipline states are required by the Article 28(2) of the CRC to “take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.112 While the term “corporal punishment” is not referred to in Articles 19 and 28(2), or in the preparatory works to the Convention, the Committee argues that the Convention is a living instrument and interpretations of it are continuously developing, and that because of reporting and advocacy the visibility of the practice is more prevalent which means that these articles include corporal punishment.113 Taken all together the Committee argues that the practice of corporal punishment “directly conflicts with the equal and inalienable rights of

109 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 15 110 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 15 111 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 18 112 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 19 113 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 20

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

children to respect for their human dignity and physical integrity”.114 Because of the distinct nature of children the Committee argues that children need more and not less legal and other types of protection “from all forms of violence”. In this respect the Committee stipulated that it “is an immediate and unqualified obligation of States Parties” of the Convention to introduce legislation and other measures deemed as required to put an end to violence and any humiliating punishment of children.115 The Committee also referred to the fact that other UN treaty bodies had made recommendations to states to prohibit corporal punishment in schools, penal systems and in the family.116 These treaty bodies include the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee against Torture. The Committee on the CRC made reference to General Comment No. 13 which the Committee on Economic, Social and Cultural Rights issued in 1999 regarding “The Right to Education”, which stipulated that “corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration and both Covenants: the dignity of the individual. Other aspects of school discipline may also be inconsistent with school discipline, including public humiliation.”117 In addition regional human rights mechanisms have condemned the use of corporal punishment of children including the European Court of Human Rights and the European Committee of Social Rights.118 The use of corporal punishment of children has been condemned in a series of decisions by the European Court, which began condemning the practice in the penal system, later on in schools and private schools and then in the home and family.119 The compliance of member states of the European Social Charter and Revised Social Charter is monitored by the European Committee of Social Rights which has decided that “prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or

114 115 116 117 118 119

Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 21 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 22 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 22 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 22 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 23 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 23

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elsewhere” needs to be implemented by the member states in order for them to be in compliance with the Charters.120 The African Commission on Human Rights and Peoples’ Rights has in response to an individual communication in a case were students had been forced to endure lashes as a punishment decided that this punishment of lashes was a violation of Article 5 of the African Charter on Human and Peoples’ Rights.121 In this case the government in question was asked to change its laws and to legally prohibit the punishment of lashes as well as compensate the victims.122 The Commission stipulated that “[t]here is no right for individuals, and particularly the Government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State-sponsored torture under the Charter and contrary to the very nature of this human rights treaty.”123 Some governments have in response to the CRC Committee’s concerns invoked the best interests of the child principle arguing that in some cases it would be in the best interest of the child if some form of corporal punishment was carried out, to which the Committee has replied that the best interests of the child principle cannot be invoked as a justification for such a practice. Instead the Committee has underlined that the interpretation of the best interests of the child principle, which is a general principle, “must be consistent with the whole Convention, including the obligation to protect children from all forms of violence and the requirement to give due weight to the child’s views; it cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity.”124 In addition, the Committee in its Comment No. 8 referred to the interdependence of the Convention’s articles, in this case specifically Articles 19 and 4, stating that these Articles together “makes clear that legislative as well as other measures are required to fulfi ll States’ obligations to protect children from all forms of violence”.125 The Committee also addressed that in some states there are faith-based justifications for the use of corporal punishment of children, where it is implied that

120 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 23 121 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 25 122 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 25 123 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 25 124 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 26 125 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 30

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

some religious texts say it is a duty to use the practice.126 While the International Covenant on Civil and Political Rights protects the freedom of religion as a fundamental human right for all, the Committee argued that the practice of a religion or religious belief must be conducted in a manner respecting other people’s human dignity and physical integrity, and that it is possible to legally limit the freedom of practicing a person’s religion if necessary to protect the human rights of other people.127 As the Committee argued, some children “from a very young age” and some from the age of puberty are “sentenced to punishment of extreme violence that include stoning and amputations, prescribed under certain interpretations of religious law”, and made clear that these kinds of punishments “plainly violate the Convention and other international human rights standards,” and that they “must be prohibited”.128 Here the Committee also made reference to decisions taken by the Human Rights Committee and the Committee against Torture, which had already made the same interpretation. The Committee argued that the CRC “asserts the status of the child as an individual person and holder of human rights”.129 The Committee argued that a child is not the possession of the parents, or of the state, and is not to be considered as merely an object of concern. Making reference to Article 5 of the Convention that obliges parents or their legal guardians “to provide the child with appropriate direction and guidance, in a manner consistent with his/her evolving capacities”, Article 18 which emphasizes “the primary responsibility of parents, or the legal guardians, for the upbringing and development of the child” and that “the best interest of the child will be their basic concern”, and to Article 12 which provides that the child has the right to express its views freely “in all matters affecting the child”, the Committee stipulated that all of these provisions underlined that parenting and teaching styles must be respectful of the participation rights of the child.130 The Committee also added that in terms of the educational environment the Committee had stated in its General comment No. 1 on “The aims of education” that education must be developed in a manner that is “child-centered, child-friendly and empowering”.131

126 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 29 127 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 29 128 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 29 129 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 47 130 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 47 131 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 47

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Some states authorize the use of corporal punishment in schools and other institutions, and they have specific regulations with regard to by whom and how it is to be administered.132 For example, the use of canes and whips continues to be used as a form of sentencing of child offenders by courts in a few states, practices which the Committee underscored were to be discontinued according to the Convention. Furthermore, traditional attitudes are not only reflected by parents or teachers using the practice, but also by some courts which have in some cases decided that it was acceptable for a parent or a teacher to use some level of force as a moderate form of “correction” and that such use did not amount to assault or ill-treatment forbidden by law.133 The Committee acknowledges that attitudes and practices do not change merely by a change of laws, and that states have in this context the obligation to make the Convention widely known both to adults and children.134 The states are also obliged to ban all other forms of cruel or degrading punishment of children and not only corporal punishment. The Committee stated that the Convention gives a set of principles to be used as guidance for parents, teachers and other caregivers in their relationships with children, and it is not to be used as detailed a prescription of what these caregivers should do.135 In this context the Committee states that the development needs of the children are to be respected. The Committee reminds the states that they are obliged according to Article 39 of the Convention “to take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of ‘any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment.’”136 The Committee continue by stating that as serious damage to the physical, psychological and social development of children can be the consequence of corporal punishment, any treatment must include the protection of the child’s integral health, self-respect and dignity. 1.2.1.2.

The United Nations and Violence Against Children

The UN Committee on the Rights of the Child held a general discussion on violence against children during two days in 2000 (state violence against children) and 2001 (violence against children within the family and school), and as a result 132 133 134 135 136

Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 32 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 33 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 45 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 46 Committee on the Rights of the Child, CRC/C/GC/8, 2 March 2007, General Comment No. 8, (2006), para. 37

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

the Committee recommended that an international study on violence against children should be conducted, which led to the Secretary-General being asked by the UN General Assembly in resolution 56/138 to carry out such a study with recommendations for the UN member states, and that the Secretary-General appointed Paulo Sérgio Pinheiro to head the study as an independent expert.137 The study was conducted between 2003 and 2006, and was ground-breaking as the first international in-depth study on violence against children in all spheres except armed conflict situations.138 The main findings included that violence against children is a global problem and that much violence remains hidden and that violence is widely accepted in society. The independent expert adopted a number of guiding principles to direct his work and recommendations:139 – –

–

– –

–

No violence against children is justifiable. Children should never receive less protection than adults; All violence against children is preventable. States must invest in evidencebased policies and programmes to address factors that give rise to violence against children; States have the primary responsibility to uphold children’s rights to protection and access to services, and to support families’ capacity to provide children with care in a safe environment; States have the obligation to ensure accountability in every case of violence; The vulnerability of children to violence is linked to their age and evolving capacity. Some children, because of gender, race, ethnic origin, disability or social status, are particularly vulnerable; Children have the right to express their views, and to have these views taken into account in the implementation of policies and programmes.

The recommendations included to strengthen national and local commitment and action, prohibit all violence against children, prioritise prevention, promote non-violent values and awareness-raising, enhance the capacity of all who work 137

138

139

General Assembly, UN Study on violence against children, by Paulo Sérgio Pinheiro, independent expert, submitted pursuant to General Assembly resolution 60/231, A/61/299, 29 August 2006, para. 7, and Summary of the Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, www. violencestudy.org, and Office of the United Nations High Commissioner for Human Rights, the United Nations Study on Violence against children, http://www2.ohchr. org/english/bodies/crc/study.htm General Assembly, UN Study on violence against children, by Paulo Sérgio Pinheiro, independent expert, submitted pursuant to General Assembly resolution 60/231, A/61/299, 29 August 2006, para. 7 and 9: ”The aim of the study was to report on the scale of violence against children in five settings: home and family, schools, care and justice systems, the workplace and the community and to make recommendations.” Summary of the Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, p. 4, www.violencestudy.org

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with and for children, provide recovery and social reintegration services, ensure participation of children, create accessible and child-friendly reporting systems and services, ensure accountability and end impunity, address the gender dimension of violence against children, develop and implement systematic national data collection and research and strengthen international commitment.140 1.2.1.2.1.

The United Nations Committee on the Rights of the Child and Violence Against Children

Following the 2006 study, the Secretary-General appointed a Special Representative on Violence against Children in 2008 following the request of such an appointment by the UN General Assembly resolution A/RES/62/141, with a mandate to pursuing advocacy on preventing and ending all forms of violence against children, and promoting and supporting that the recommendations from the study be implemented.141 The Special Representative is mandated to closely work and cooperate with among others the Special Representative of the Secretary-General for Children and Armed Conflict, and they are asked to coordinate their respective work in such a way that “the situations of all children subject to or at risk of violence are addressed, including those of armed conflict, foreign occupation, genocide, crimes against humanity, war crimes, terrorism or hostage-taking, or where peacekeeping operations are deployed, in order to ensure that no child is left uncovered”.142 As a follow-up to the 2006 study and the CRC Committee’s General Comment No. 8 on specifically corporal punishment against children, in April 2011 the CRC Committee issued General Comment No. 13 on the right of the child to freedom from all forms of violence and where Article 19 of the CRC was interpreted.143 The Committee stipulated that it saw a need for such a comment as “the extent and intensity of violence exerted on children is alarming”, underlining that “violence” in the context of the present Comment and General Comment No. 8 was not limited to physical and/or intentional harm, and drew “attention to the recommendations from the 2006 study and called on the States Parties to the CRC to have the recommendations implemented”.144 General Comment No. 13 also addresses the situation for children affected by armed conflict as the 140 Summary of the Report of the Independent Expert for the United Nations Study on Violence against Children, A/61/299, p. 4, www.violencestudy.org 141 General Assembly, Resolution adopted by the General Assembly, 62/141. Rights of the child, A/RES/62/141, 22 February 2008, para. 58 and 59 142 General Assembly, Resolution adopted by the General Assembly, 62/141. Rights of the child, A/RES/62/141, 22 February 2008, para. 59 (d) and 61 143 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 6 144 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 4 and 6

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Committee based this Comment on among other “fundamental assumptions and observations” its awareness of “widespread and intense violence applied against children in State institutions and by State actors including in schools, care centres, residential homes, police custody and justice institutions which may amount to torture and killing of children, as well as violence against children frequently used by armed groups and State military forces”.145 Furthermore, interpreting Article 19 in context, the Committee acknowledged “the direct relevance to article 19 of the Optional Protocol on the sale of children, child prostitution and child pornography and the Optional Protocol on involvement of children in armed conflict”.146 Article 19 of the Convention on the Rights of the Child (CRC) reads as follows: 1.

2.

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

By General Comment No. 13 the Committee sought to provide guidance to the states parties “in understanding their obligations under article 19”, by them promoting a holistic approach to its implementation.147 The challenges to the full implementation of the Article include legislation, widespread social and cultural attitudes and practices, lack of knowledge, data and understanding of the phenomenon such as its causes, and fragmented strategies and inadequate resources.148 The forms of violence children are exposed to include neglect or negligent treatment such as physical neglect failing in the provisions of adequate food, clothing and basic medical care to children, mental violence such as exposure to domestic violence, physical violence such as corporal punishment (making refer145 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 3 (i) 146 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 19 (a) 147 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 11 (a) and (d) 148 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 12

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ence to General Comment No. 8), sexual abuse and exploitation, and torture and inhuman or degrading treatment or punishment including by “persons who have power over children, including non-State armed actors”, violence among children such as violence by youth gangs, self-harm and harmful practices.149 With regards to torture and inhuman or degrading treatment or punishment, the Committee specifically noted that marginalized, disadvantaged and discriminated children were often the victims of such acts, such as children in conflict with the law, children in street situations, minorities and indigenous children and unaccompanied children.150 With regards to harmful practices the Committee noted (not an exclusive list) corporal punishment, FGM, amputations, binding, scarring, burning and branding, violent and degrading initiation rites, force-feeding of girls, fattening, virginity testing (inspecting girls’ genitalia), forced marriage and early marriage, “honour” crimes, “retribution” acts of violence (where disputes between different groups are taken out on children of the parties involved), dowry-related death and violence, accusations of “witchcraft” and related harmful practices such as “exorcism” and uvulectomy and teeth extraction.151 The Committee’s definition of “caregivers” includes parents and teachers, and importantly the Committee noted that the state was the “de-facto caregiver” in cases of unaccompanied children. The states parties have the obligation according to Article 19 to take “all appropriate legislative, administrative, social and educational measures”, which includes the obligation to guarantee by law an “absolute prohibition of all forms of violence against children in all settings”.152 Social policy measures which would reduce risk and prevent violence include to identify and prevent “factors and circumstances which hinder vulnerable groups’ access to services and full enjoyment of their rights (including indigenous and minority children and children with disabilities…)” and policies regarding public health and safety, housing employment and education.153 The legislative, administrative, social and educational measures that must be implemented need to include certain “elements” to be mainstreamed, such as that a child rights approach needs to be applied

149 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 19-32 150 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 26 151 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 29 (a)-(h) 152 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 40-41 (d). 153 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 43 (a) (ii) (iv)

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

when implementing all these measures.154 The Committee defines a child rights approach as:155 Respect for the dignity, life, survival, wellbeing, health, development, participation and non-discrimination of the child as a rights-bearing person should be established and championed as the pre-eminent goal of States parties’ policies concerning children. This is best realized by respecting, protecting and fulfi lling all of the rights in the Convention (and it’s Optional Protocols). It requires a paradigm shift away from child protection approaches in which children are perceived and treated as “objects” in need of assistance rather than rights holders entitled to non-negotiable rights to protection. A child rights approach is one which furthers the realization of the rights of all children as set out in the Convention by developing the capacity of duty bearers to meet their obligations to respect, protect and fulfi l rights (art. 4) and the capacity of rights holders to claim their rights, guided at all times by the rights to non-discrimination (art. 2), consideration of the best interests of the child (art. 3, para. 1), life, survival and development (art. 6), and respect for the views of the child (art. 12). Children also have the right to be directed and guided in the exercise of their rights by caregivers, parents and community members, in line with children’s evolving capacities (art. 5). This child rights approach is holistic and places emphasis on supporting the strengths and resources of the child him/herself and all social systems of which the child is a part: family, school, community, and institutions, religious and cultural systems.

The states parties need to make sure that the measures taken are non-discriminatory and in this context they especially have the obligation to “address discrimination against vulnerable or marginalized groups of children”.156 Here the Committee specifically referred to “children in potentially vulnerable situations” which are to be part of the elements to be mainstreamed in all measures taken by the states, and they include children at risk of harmful traditional practices, early marriage, children as migrants or refugees, displaced and/or trafficked, as well as children in emergencies.157 Children in emergencies the Committee noted “are extremely vulnerable to violence when, as a consequence of social and armed conflicts, natural disasters and other complex and chronic emergencies, social

154 155 156 157

Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 72 (a) Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 59 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 60 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 72 (g)

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systems collapse, children become separated from their caregivers and caregiving and safe environments are damaged or even destroyed”.158 In adopting all the measures, the Committee referred to Article 4 of the CRC, stating that states “whatever their economic circumstances”, the implementation of Article 19 is “an immediate and unqualified obligation” as it is a civil right and constitutes a freedom to be protected from all forms of violence as provided for in Article 19.159 The Committee referred here to its General Comment No. 5, and stated that “States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups”.160 Making note of the fact that all the states parties come from different starting points, they are still obliged to allocate “to the maximum extent of available resources” the required human, financial and technical resources across all the sectors involved.161 The Committee underlined that the obligations of the states parties according to Articles 4 and 19 were that a state cannot justify the lack of actions taken or lack of allocated resources to resource constraints (not just financial), urging the states parties “to adopt comprehensive, strategic and time-bound coordinating frameworks for child caregiving and protection” in which children should be consulted.162 1.2.1.2.2. The Rapporteurship on the Rights of the Child of the Inter-American Commission The Rapporteurship on the Rights of the Child of the Inter-American Commission on Human Rights came out with a report on corporal punishment against children and adolescents as a response to the Advisory Opinion of the Inter-American Court of Human Rights and the UN CRC Committee’s General Comment No. 8, making it unequivocally clear that corporal punishment should be eradicated

158

Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 72 (g) 159 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 65 160 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 65 161 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 72 (h) 162 Committee on the Rights of the Child, CRC/C/GC/13, 18 April 2011, General Comment No. 13, (2011), para. 73

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

and put forward some recommendations of actions that state parties should take to end the practice.163 The recommendations were:164 1.

2.

3.

4.

5.

163

That States prohibit all forms of violence against children, in all settings, within the family, schools, alternative care institutions and detention facilities, places where children work and communities, as required by the inter-American jurisprudence and international treaties, including the American Convention on Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment and the Convention on the Rights of the Child; taking into account the General Comment No. 8 (2006) of the Committee on the Rights of the Child on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (articles 19, 28, para. 2, and 37, inter alia) (CRC/C/GC.8) and the United Nations World Report on Violence Against Children. That the member states incorporate an integral awareness of the rights of the child in designing public policies applicable to children, with particular emphasis on the eradication of corporal punishment in public institutions, such as detention centers, shelters, orphanages, hospitals, psychiatric institutions, schools, among others. The IACHR therefore recommends that the States take steps for the due implementation of such policies, by assigning adequate amounts of human and financial resources to areas that affect children. That, in accordance to the corpus juris related to the rights of children, the member states take actions for the promotion of education measures for adults and children that, based on an awareness of child rights, can assist the effective enforcement of laws banning corporal punishment, and promote alternative disciplinary measures that are participatory, positive and not violent in society in such a way, that children’s human dignity is respected. That the States implement initiatives of prevention and response to all forms of violence against children, creating mechanisms directed at facilitating children who have been victims of violence, including corporal punishment, to be heard and to present claims. That the member States report back to the IACHR on the measures adopted to eradicate corporal punishment as a way of disciplining children and adolescents and to make the American a region free of child corporal punishment by 2011.

Inter-American Commission on Human Rights, Rapporteurship on the Rights of the Child, Report on Corporal Punishment and Human Rights of Children and Adolescents, “promoting the defense and respect of human right of children and adolescents in the Americas”, OEA/Ser.L/V/II.135, Doc. 14, 5 August, 2009, para. 92 164 Inter-American Commission on Human Rights, Rapporteurship on the Rights of the Child, Report on Corporal Punishment and Human Rights of Children and Adolescents, “promoting the defense and respect of human right of children and adolescents in the Americas”, OEA/Ser.L/V/II.135, Doc. 14, 5 August, 2009, para. 119

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The goal of making the Western Hemisphere a region free of child corporal punishment by 2011 has not yet been accomplished. 1.3.

Traditional and Harmful Practices and Children

The CRC is the first international legally binding treaty that prohibits harmful traditional practices in its Article 24(3), and the provision was constructed in a way that it would be broad enough to include all harmful traditional practices.165 Therefore the term “harmful traditional practices” was used so as not to emphasis only some types of practices and exclude others, and it encompasses a range of harmful traditional practices even if these have not been explicitly defined in the Article such as female genital mutilation (FGM), traditional birth practices and preferential feeding of male children.166 Article 24(3) of the CRC is set within the context of providing the child with “the highest attainable standard of health”, and according to Article 24(3) of the CRC:167 The States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

The African Charter on the Rights and Welfare of the Child of 1990 also includes an article on “Protection against Harmful Social and Cultural Practices”, Article 21, and expands the rights of children in this context by stating:168 1.

2.

States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular: (a) Those customs and practices prejudicial to the health or life of the child; and (b) Those customs and practices discriminatory to the child on the grounds of sex or other status. Child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory.

165 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 307 166 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 307 167 Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, in accordance with article 49, article 24(3) 168 African Charter on the Rights and Welfare of the Child, adopted by the Heads of State and Government of the OAU on 11July 1990 and entered into force on 29 November 1999, article 21

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

The African Charter on Children directly prohibits child marriage, which is marriage under 18 years of age, and obliges states parties to formally establish a minimum age for marriage, which is to be 18 years. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 2003 (the Maputo Protocol), defines in its Article 1(g) “Harmful Practices” as these affect women and girls:169 “Harmful Practices” means all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity.

Furthermore in Article 5 “Elimination of Harmful Practices” of the Maputo Protocol, states parties are obliged to prohibit all forms of harmful practices of women and girls: States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards. States Parties shall take all necessary legislative and other measures to eliminate such practices, including: a) Creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes; b) prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them; c) provision of necessary support to victims of harmful practices through basic services such as health services, legal and judicial support, emotional and psychological counselling as well as vocational training to make them selfsupporting; d) Protection of women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance.

This Article (5(b)) specifically mentions female genital mutilation, and the states parties are importantly under the obligation to legally ban all forms of this harmful practice. Furthermore according to Article 5(a)–(b), the states parties are obliged to introduce legislation which would prohibit harmful practices from taking place as well as educating people in order to change their attitudes towards these prac-

169 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 72 and 80

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tices.170 The Maputo Protocol applies a holistic approach as the states parties according to Article 5(c) also need to introduce different kinds of support for the victims, in addition to introducing new legislation and punishment.171 Finally the states parties also need to take preventive measures in order to protect the women and girls “who are at risk of being subjected” to such practices (Article 5(d)). The Maputo Protocol sets the minimum age of marriage to 18 years, and stipulates that both parties to the marriage are to consent to it and that the marriage is to be formally registered.172 This needs to be seen in the context that many African states allow through a personal law system that children under the age of 18 years can be married, and this in particular concerns girls.173 Furthermore most of the marriages in Africa are not formally registered, because marriage has been considered to be of a private concern only for the families involved.174 In this context it is important to note that according to the Protocol, divorce also needs to be formally registered by a judicial order (Article 7(a)). The different types of traditional practices harmful to the health of children also include honour related violence, and in the West Bank and Gaza, in the context of continuous political instability and on-going armed confl ict, several honour killings have been carried out, and for instance during 2005–2006 in the West Bank the methods used included knife attacks, strangulation, being pushed from heights, beatings with a metal bar, being shot in the head as well as through poisoning.175 Research in Yemen has shown that reasons for honour crimes include “Loss of parents place in society”, “Lack of awareness of fathers about appropriate types of punishment”, “Lack of closeness with children” and “Ignorance or neglecting children”.176 Witchcraft violence is another cultural and 170 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 80 171 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 80-81 172 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (AWP or the Maputo Protocol), Article 6(a), 6(b) and 6(d). 173 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 76 174 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 76 175 Ouis, P., Honourable Traditions? Honour Violence, Early Marriage and Sexual Abuse of Teenage Girls in Lebanon, the Occupied Palestinian Territories and Yemen, International Journal of Children’s Rights 17 (2009) 445-474, p. 458 176 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 143-144, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

traditional practice that is being carried out in many countries in Africa, and for example in the DRC the phenomenon of child witches is everywhere, not just in a special region or area.177 Many times it is the parents that accuse their children of witchcraft which leads to a situation where many children have to leave home and become homeless. Here the children get the message from their parents that they are not welcome in the family. Abduction of children to be used for witchcraft is carried out in several African countries such as Botswana, Côte d’Ivoire and Uganda. In South Africa witchcraft has manifested itself in very cruel violence against innocent individuals that has been carried out and encouraged by youth who have had very little knowledge and awareness about the issue, in combination with much disrespect for authority.178 Child sacrifice is an issue in many African countries, and on 23 October 2009, the Ugandan Parliament passed the Act “Prevention of trafficking in persons”, which makes trafficking in persons, human sacrifice, and removal of body organs for sale or ritual sacrifice a criminal offense with the maximum punishment being the death penalty for aggravated trafficking.179 On 2 March 2011, for the first time a person, a witchdoctor from the Kiryandongo District, was convicted under this new law in Uganda by the High Court in Masindi to 50 years in prison because he was found guilty of having had cut off the genitalia of “a sevenyear old pupil of the Masindi Port Primary School-Kiryandongo” on 16 July 2010 as a form of child sacrifice.180 Two other persons who allegedly had helped the witchdoctor with this child sacrifice were acquitted as a result of the fact that the boy victim collapsed when he was brought to identify these co-perpetrators when they were lining up to be identified at the Masindi Prison, and therefore only the witchdoctor could be positively identified by the boy. The judge at the High Court

and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 177 Visit to Centre Olame, Bukavu, South Kivu, DRC, May 2007 178 The National Conference on Witchcraft Violence, 6-10 September 1998, Convened by the Commission on Gender Equality, South Africa, p. 23 179 George Muzoora, Half century jail term for child sacrifice witchdoctor, Masindi, Uganda, March 2, 2011, Africa Review, Consolation in East Africa, http://consolationafrica.wordpress.com/2011/03/03/half-century-jail-term-for-child-sacrific... accessed 3/19/2011, see also George Muzoora, Witchdoctor to serve 50 years for child sacrifice, March 2, 2011, Daily Monitor, www.monitor.co.ug/News/National/-/688334/117324/-/c4ipskz/-/index.html 180 George Muzoora, Half century jail term for child sacrifice witchdoctor, Masindi, Uganda, March 2, 2011, Africa Review, Consolation in East Africa, http://consolationafrica.wordpress.com/2011/03/03/half-century-jail-term-for-child-sacrific... accessed 3/19/2011, see also George Muzoora, Witchdoctor to serve 50 years for child sacrifice, March 2, 2011, Daily Monitor, www.monitor.co.ug/News/National/-/688334/117324/-/c4ipskz/-/index.html

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stated that “child sacrifice was very common in society”, and that “I pray that the medical experts do what they can to help this boy out of this problem”.181 In Uganda since 2008 there has been an increase in ritual child sacrifice which affects both boys and girls, in a context where many children go missing; in the month of November 2008 as many as 100 children had been reported missing by the police (80 of these cases were in Kampala).182 Fred Enanga, a police spokesman, explained that there are many different reasons to why children go missing such as human trafficking, family break-ups, child torture by stepmothers, and child labour, but that ritualistic child sacrifice is the most common reason.183 In 2006 there were about 25 ritual murders of children confirmed, and in addition 230 cases of child abduction were recorded.184 In 2007 there were 108 cases of child abduction known by the police and in 2008 there were 318 such cases. By February 2009 there had been 18 cases of child sacrifice documented, of which 15 had been investigated. The reasons for the rise in child sacrifice vary but include poverty, weak legislation, negligent parenting (parents are not aware of the dangers of child sacrifice) and traditional beliefs.185 For instance 12 yearold Eriya Kalule in the Kamuli District was beheaded by his uncle on Boxing Day in 2008 for 50,000 Ugandan shillings, a father in Masajja in the Wakiso district beheaded his twin children in December 2008 for 12 million shillings, and a 21-year-old woman who had stolen a child and then sold him for 100,000 shillings was later arrested and was sentenced to 16 years in prison in January 2009.186 In this boy’s case Justice Eridad Mwanguhya stated that “[t]he accused has pleaded guilty to the offence of stealing a child with intent to murder. She is accordingly 181

George Muzoora, Half century jail term for child sacrifice witchdoctor, Masindi, Uganda, March 2, 2011, Africa Review, Consolation in East Africa, http://consolationafrica.wordpress.com/2011/03/03/half-century-jail-term-for-child-sacrific... accessed 3/19/2011, see also George Muzoora, Witchdoctor to serve 50 years for child sacrifice, March 2, 2011, Daily Monitor, www.monitor.co.ug/News/National/-/688334/117324/-/c4ipskz/-/index.htm 182 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 183 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 184 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 185 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 186 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

convicted, but the offence of child sacrifice has been rampant of recent and it was by the mercy of God that a two-year-old innocent child was not killed by the evil desire of a so-called witchdoctor.”187 One reason as to why it is difficult to detect the witchdoctors is that many witchdoctors operate under the practice of traditional herbal healing, marketing themselves as traditional herbalists also in the media, a practice that has not been “properly regulated”.188 The culture of ritual child sacrifice has been very strong in the central region of Uganda, while the practice is also widespread in the north of the country. Fred Enanga explained that “the ritual murderers have a belief that in human sacrifice they are appeasing and worshipping the gods or ancestral spirits, so that their wealth is sustained and their problems go away”.189 The perpetrators include fathers, neighbours, friends and strangers that engage in ritual practices which many times involve the killings of children to use their different “pure” body parts. Children are being particularly targeted because they are considered innocent, pure, spiritually clean and virgin which make them vulnerable to the dangers of child sacrifice.190 Enanga continued by stating that “[t] he police have recruited intelligence within traditional healers to tip police off about people involved in ritualistic murder of children. Investigations reveal that witchdoctors do not do the killing themselves, but play on the psychology of their clients to do the actual killing and bring them the desired human body parts.”191 A Ugandan government spokesperson said in January 2010 that human sacrifice was increasing, and that this increase has been “directly linked to rising levels of development and prosperity” and “an increasing belief that witchcraft can help people get rich quickly”.192

187 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 188 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 189 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 190 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 191 Mubatsi Asinja Habati, Uganda’s epidemic of child sacrifice, 25 February 2009, The Independent, www.independent.co.ug/society/society/620-ugandas-epidemic-ofchild-sacrifice?tm...accessed 3/19/2011 192 Kamara, Ahmed M., Child Sacrifices on the Rise in Uganda as Witch Doctors Expand Their Practices, January 8, 2010, Newstime Africa, www.newstimeafrica.com/ archives/10128

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Some witchdoctors report that “they have clients who regularly capture children and bring their blood and body parts to be consumed by spirits”.193 They have said that “some of their clients capture other people’s children and bring the heart and the blood directly to them to take to the spirits. They are brought in small tins and are placed under a tree from which the voices of the spirits are coming. Clients come on average three times a week, with all that the spirits asks them to bring.”194 The witchdoctors say that they are not directly involved in murdering or inciting to murder anybody, and that “the spirits speak directly to their clients”. Important measures to prevent child sacrifice include having proper and adequate legislation, and, according to the resident district commissioner for Lira, Joan Pacoto, also education of the dangers involving child abduction to parents. Joan had the following to say: “I encourage local councils, parent, neighbors and religious leaders to be more vigilant in inquiring about children who go missing.” And: “We should warn children about child kidnapping and child sacrifice in the same way that they are being warned about sexual abuse and AIDS. This would make them alert to the dangers of being lured away or being kidnapped.”195 Because of the inadequate law enforcement response including lack of trials, underscoring the need for a much stronger law, people in the villages in northern and central Uganda began to take the law into their own hands, and in the spring and summer of 2009 angry mobs had stoned, shot or beaten ten people “accusing them of having participated in child sacrifice”.196 This violent response was attributed by the police to the trauma that all the LRA (Lord’s Resistance Army) attacks over two decades had brought the civilian population, which in turn had “created a culture in which people are quick to turn to violence”.197 In Côte d’Ivoire child abduction is a serious issue; however abduction of children risks becoming especially problematic around election time in the country, because as the Ivoirian police explained in the run-up to the scheduled presiden193

Kamara, Ahmed M., Child Sacrifices on the Rise in Uganda as Witch Doctors Expand Their Practices, January 8, 2010, Newstime Africa, www.newstimeafrica.com/ archives/10128 194 Kamara, Ahmed M., Child Sacrifices on the Rise in Uganda as Witch Doctors Expand Their Practices, January 8, 2010, Newstime Africa, www.newstimeafrica.com/ archives/10128 195 Oketch, Bill, Child Sacrifice Scourge Alarms North, IWPR Institute for War & Peace Reporting, 17 July 2009, http://iwpr.net/print/report-news/child-sacrifice-scourgealarms-north, accessed 3/19/2011 196 Oketch, Bill, Child Sacrifice Scourge Alarms North, IWPR Institute for War & Peace Reporting, 17 July 2009, http://iwpr.net/print/report-news/child-sacrifice-scourgealarms-north, accessed 3/19/2011 197 Oketch, Bill, Child Sacrifice Scourge Alarms North, IWPR Institute for War & Peace Reporting, 17 July 2009, http://iwpr.net/print/report-news/child-sacrifice-scourgealarms-north, accessed 3/19/2011

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

tial election in November 2008 (the election was later postponed to November 2009, but finally took place with the first round on October 31, 2010 and the second round on November 28, 2010, which resulted in post-election violence as the then President Laurent Gbagbo refused to step down, with a new government installed with Alassane Ouattara as the new President by May 2011) of the risk that political contenders would, as a way to enhance their prospects of winning, use myths of human sacrifice which would then “fuel an already significant market for stolen children”.198 For the scheduled presidential election in November 2008 there was much concern that child abductions would increase, and the spokesperson for the child protection unit of the Ivorian police, Sergeant Antoine Goua Bi, explained in June 2008 about the up-coming presidential elections later that year that “[child abduction] is something that needs urgent attention especially in the run-up to the election because a lot of things are going to happen like human sacrifices and other rituals where the organs of children will be particularly in demand”.199 Sergeant Bi said that the major perpetrators are organ traffickers and that they take out hearts, kidneys, lungs and other body parts of the children to sell them to medical facilities and so called “soothsayers”, or to sell the children to work in the sex trade, for illegal adoption rings, or to work on plantations.200 A coordinator, Michel Boka, for the NGO Roxal, which works on child protection, stated in June 2008 that “[t]he number of children disappearing in Côte d’Ivoire has already reached extremely worrying proportions … Every day we register three new cases-that adds up to between 60 and 90 cases per month.”201 Furthermore Mr. Boka explained that only one in 20 children do actually return to their parents, the rest remain disappeared.202 The United Nations High Commissioner for Refugees (UNHCR) is now working to promote gender equality and having all forms of violence against women and girls eradicated, issues which the protection mandate of the UNHCR today encompasses.203 For the UNHCR the “persons of concern” are asylum seek198 Irin, Côte d’Ivoire: Child sacrifice on rise in election run-up, 25 June 2008, www.irinnews.org/PrintReport.aspx?ReportID=78941; Ivorian presidential election, 2010, Wikipedia, http://en.wikipedia.org/wiki/Ivorian_presidential_election,_2010 199 Irin, Côte d’Ivoire: Child sacrifice on rise in election run-up, 25 June 2008, www. irinnews.org/PrintReport.aspx?ReportID=78941 200 Irin, Côte d’Ivoire: Child sacrifice on rise in election run-up, 25 June 2008, www. irinnews.org/PrintReport.aspx?ReportID=78941 201 Irin, Côte d’Ivoire: Child sacrifice on rise in election run-up, 25 June 2008, www. irinnews.org/PrintReport.aspx?ReportID=78941 202 Irin, Côte d’Ivoire: Child sacrifice on rise in election run-up, 25 June 2008, www. irinnews.org/PrintReport.aspx?ReportID=78941 203 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 5, www.iac-ciaf.com, Accessed June 25, 2009

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ers, refugees, internally displaced persons, returnees, stateless persons, persons at risk of becoming stateless, and those refugees and IDPs who are in the process of being integrated into new communities.204 In the context of UNHCR’s work on gender, three areas of concern have been identified: “i) mainstreaming a gender perspective into all aspects of UNHCR operations; ii) promoting a gendersensitive interpretation of the refugee definition, that recognizes FGM as a form of gender-based persecution; and iii) working with displaced communities to eliminate FGM”.205 This was not always the thinking within the UNHCR where “[c]hanging the attitudes of staff members toward the needs of refugee women, to improve our track record, is the heaviest challenge.”206 As Howarth-Wiles, the coordinator for refugee women at UNHCR in 1995 explained about the culture within the UNHCR at the time: “Within this agency, there are two opposing attitudes …. There are people who believe that the organization should not interfere with refugee customs. According to this school, we are not there to change people’s culture or mind-set, and we should respect the traditions of refugees, whether this means the veil, forced marriage, failure to educate girls, genital mutilation, or lack of access to family planning. To this school, I respond that respect for human rights is also part of UNHCR’s mission.”207 UNHCR has reported that FGM is many times the form of sexual and gender-based violence that is reported the least, also in cases where it is known that in certain refugee groups the FGM prevalence rate is almost 100 per cent.208 One reason according to UNHCR is that young refugee girls do not know their rights and thus cannot demand that they be respected, and another reason is that the perpetrators of FGM seldom get prosecuted despite their crimes having been reported. Furthermore, despite that there is legislation in many countries that bans FGM, the law enforcement personnel in host countries are seldom will-

204 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 5, www.iac-ciaf.com, Accessed June 25, 2009 205 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 5, www.iac-ciaf.com, Accessed June 25, 2009 206 Berthiaume, C., Refugee Magazine, Issue 100 (Refugee women) – Do we really care?, 1 June 1995, UNHCR, p. 2 of 3 207 Berthiaume, C., Refugee Magazine, Issue 100 (Refugee women) – Do we really care?, 1 June 1995, UNHCR, p. 2 of 3 208 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 6, www.iac-ciaf.com, Accessed June 25, 2009

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

ing to bring a person to trial who has committed such an act.209 With regards to refugee groups living in urban areas it is very difficult to have harmful practices identified in these communities because the refugees do not live together in one area and instead reside in many different locations.210 The UNHCR has belatedly acknowledged the difficulties involved in addressing harmful practices when culture and religion are used as justifications, and has suggested that FGM should be dealt with in the context of “a participatory approach” where women and girls who have been exposed to this harmful practice or are at risk of such exposure should work together with relevant organizations and NGOs to find solutions, which would “allow for different perspectives and views on the role of women and girls which may not be homogenous in a given group.”211 While harmful and traditional practices are being committed mainly against women, girls and boys, women and girls are at the most at risk of being exposed to some of these practices.212 Such practices include as noted FGM and early marriage, forced marriage, teenage pregnancy, unhealthy delivery practices, breast ironing, son preference to girl-child, nutritional taboos, forced feeding of women and other gender related violence.213 Where advocacy, campaigns, and community sensitization have been carried out, such as the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children (IAC) has done in several African countries, there is evidence that the practices of FGM and other harmful traditional practices decrease.214 A case that show how difficult it is to eradicate such a harmful practice as FGM is the two female journalists in Sierra Leone who were interviewing people 209 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 6, www.iac-ciaf.com, Accessed June 25, 2009 210 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 6, www.iac-ciaf.com, Accessed June 25, 2009 211 Gisela Thater (Protection/Legal Officer, UNHCR), in Inter-African Committee on traditional practices affecting the health of women and children, IAC, Briefi ng on FGM, Report on the Special Session on Female Genital Mutilation, UN Palais des Nations, May 20, 2008, p. 6, www.iac-ciaf.com, Accessed June 25, 2009 212 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, www.iac-ciaf.com/ aboutus.htm, accessed June 23, 2009 213 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, www.iac-ciaf.com/ aboutus.htm, accessed June 23, 2009 214 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, www.iac-ciaf.com/ aboutus.htm, accessed June 23, 2009

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on the day of the International Day on Zero tolerance of FGM in 2009, and who were abducted by women who conduct FGM, so called “Sowies”.215 One of the abducted women was undressed and forced “to parade through the streets”, as the “Sowies” stated that the journalists did not respect their tradition. The Sudanese government decided in 2009 to no longer include Article 13 of the Children’s Act 2009 which prohibited all forms of FGM.216 Instead the government made the decision that the less extensive procedure of FGM, the Sunna practice of FGM, Type 1, should be legal. The reason for this change was that the Islamic Fiqh Academy had issued an advisory opinion where it made a distinction between harmful circumcision (Type III, or Infibulation) and the Sunna, Type I practice, which is not as extensive.217 This according to IAC will increase the risks for girls to be exposed to the FGM practice, since if one type of practice is being allowed it might follow that other more severe forms will be used and it will be difficult to detect the degree of mutilation the girls actually have been exposed to or risk being exposed to by the authorities.218 Also, as the IAC has stated there is a risk that other countries such as Somalia, Djibouti, Yemen, Ethiopia, Eritrea and other Sunni communities in West Africa will follow Sudan’s example and implement this advisory opinion and allow for the less extensive practice instead of banning the practice all together. The IAC has underlined that it is important to keep in mind that even as the Sunna Type I practice is less extensive, it is still very harmful to the girls’ health and well-being and should therefore be banned.219 This case shows that to ban FGM is a continuous challenge at many levels. As Hon. Dora C. Kanabahita Byamukama from Uganda has explained FGM is related to both religious and cultural beliefs and that the Ugandan Constitution from 1995 unreservedly prohibits FGM according to Article 2 (2) as “the customary practice of FGM is void because it is inconsistent with the

215

Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, IAC News, February 2009, www.iac-ciaf.com, accessed June 23, 2009 216 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, IAC News, February 2009, www.iac-ciaf.com, accessed June 23, 2009 217 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, IAC News, February 2009, www.iac-ciaf.com, accessed June 23, 2009 218 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, IAC News, February 2009, www.iac-ciaf.com, accessed June 23, 2009 219 Inter-African Committee on traditional practices affecting the health of women and children, IAC, Affecting the health of women and children, IAC News, February 2009, www.iac-ciaf.com, accessed June 23, 2009

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Constitution”.220 Hon. Kanabahita Byamukama argues for the application of the Ugandan Children Act to eradicate FGM as it is stipulated in the Act that:221 Section 5(2) – Places a duty on any person having custody of a child to protect the child from discrimination, violence and neglect; Section 7 – Makes it unlawful to subject a child to social or customary practices that are harmful to the child’s health; Section 10 – Prescribes duties of Local Council’s (LCs) in their areas, including mediating in any situation where the rights of a child are infringed in 10(3), and providing assistance and accommodation for any child in need in 10(6); Under section 109 contravention of any of the provisions of the Children Act is an offence punishable by a fine or imprisonment for six months, or both.

Furthermore provisions from the Ugandan Penal Code Act from 2007 are applicable as they stipulate:222 Section 216(a) – Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person....unlawfully wounds or does any grievous harm to any person by any means; commits a felony and is liable to imprisonment for life;

220 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 6: she also mentions Articles 24, 32(2), 33 and 44 of the Ugandan Constitution 221 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 6 222 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 6-7

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Section 219 – Any person who unlawfully does grievous harm to another commits an offence and is liable to imprisonment for seven years; Section 2[...](f) – defines grievous harm as any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense; Section 222 (a) – Punishes any person who unlawfully wounds another with three years imprisonment.

The main reasons as to why FGM is still being practiced in Uganda encompass “i. Lack of knowledge of the laws; ii. Misinterpretation that the right to culture permits FGM; iii. Enforcement agents are not sensitized about the fact that FGM is criminal and that it can be categorized as grievous harm or unlawful wounding; iv. Complaintants against FGM do not persist because they lack protection and fear being ostracized from the community; v. Lack of a specific law inhibits law enforcement officials who question as to whether FGM can be interpreted as criminal if it has been practiced for generations without any one being persecuted for it and taking into account the Constitutional principle that ‘no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed by law (Article 28(11)).’”223 Hon. Dora C. Kanabahita Byamukama makes the very important remark that customary practices and laws should be codified and made into law as she argues for the:224 viii. Codification of customary laws-as long as customary laws are not codified, the tendency to shroud harmful practices against women as customs acceptable to certain communities will continue to be exploited at the expense of women’s rights. Codification of customary laws should take into account the dynamic nature of customs and respect for fundamental human rights and freedoms.

223 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 7 224 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 12

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Rules or a checklist should be provided to determine customary laws that may be applicable.

She also argues that the inclusion of the prohibition against traditional harmful practices into countries’ constitutions are very effective ways to both adjudicate and bring to court cases concerning harmful practices and to establish new laws against these harmful practices.225 The Sierra Leonean parliament passed a Child Rights Act in June 2007, but it was not possible to pass it before provisions that would criminalize female genital mutilation were withdrawn in a context of where about 94 per cent of the female population goes through FGM.226 However FGM is continuing to be carried out, and this needs also to be viewed in the context of that sexual and gender-based violence and domestic violence also continue to be carried out in high numbers.227 There are several efforts to make people aware of the consequences of sexual abuse and violence and FGM, and a national sensitization campaign on sexual violence was carried out in 2008 which led to an increased number of reported cases in 2008, more civil society organizations advocating against FGM, and an International Day of Zero Tolerance Against FGM was established.228 However FGM continues to be a significant issue, and the Sierra Leonean Human Rights Commission means that it is a lack of political will on behalf of the government that the practice continues which violates the right to liberty and security of persons.229 Both girls and boys are subjected to harmful traditional practices in Sierra Leone and many complaints of girls and boys having been kidnapped and forcefully initiated into the Bondo and Poro, which are secret societies for women and men, have been received by the Sierra Leonean Human Rights Commission.230 225 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 11 226 Amnesty International Report 2008, Sierra Leone, p. 264 227 Amnesty International Report 2009, Sierra Leone, p. 289 and the Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 48: an intensive national sensitization campaign on sexual violence was carried out and the increased reported number of cases is an outcome of that campaign. 228 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 229 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 230 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49

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A Steering Committee of the Sierra Leone Child Rights Act was established in order to implement the Act.231 The Child Rights Act has a provision on customary practices in its Section 46(1) and it states that “no person or association shall subject a child to any of the following customary practices: child marriage and child betrothal”. These are explicit prohibitions but these practices continue to be carried out all over the country, and there is a great need for sensitization campaigns to be conducted in order to end them.232 The Child Rights Act makes marriage for a person under the age of 18 years illegal, but the Registration of Customary Marriage and Divorce Act allows for children under 18 years of age to marry if they have parental consent.233 The African Charter on the Rights and Welfare of the Child first of all explicitly defines a child as every human being under the age of 18 years, and stipulates specifically in its Article 21(2) on the protection against harmful social and cultural practices that “[c]hild marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be eighteen years and make registration of all marriages in an official registry compulsory”. Sierra Leone as a state party to the Charter violates the Charter in this respect by allowing for continuous child marriages and for the widespread occurrence of the practice of FGM. In Sierra Leone there has been an increase of teenage pregnancies which has become a major concern.234 It has been shown that 98 per cent of the girls enrol in primary school, but that only 32 per cent of the girls enrol at the secondary school level and 28 per cent at the tertiary level.235 Even though education at the primary level is to be provided without cost unofficial and extra school charges make it very difficult for families to cope, and communities were also made to pay the salaries of teachers since the government had failed to pay them on time.236 One reason to why so many girls have not attended secondary school is because secondary schools have not been available in their areas and thus the children need to attend school far away from home in other towns, and because of lack of adult supervision and adequate accommodation many especially girls stopped going to

231 232 233 234 235 236

Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 49 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 50 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 43

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

school.237 Overcrowding in schools is another major problem leading to poor performance of students in school and on tests. While parents (and teachers) across the country in some instances prevent the children from going to school and instead use them for work on their farms or trading, the Freetown City Council (FCC) took action and warned parents that if they did not stop this practice they would be fined. In some instances the FCC office apprehended and held some children for a period of time until they let the children go back to their parents who the FCC had reprimanded.238 In this context it is important to note that following advocacy from the NGOs No Peace Without Justice (NPWJ), the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, Euronet–FGM and La Palabre from Senegal that are conducting the “Campaign for a Worldwide Ban on FGM” with many other organizations and individuals to have the UN General Assembly adopt a resolution that would ban FGM worldwide, the African Union in Malabo in the Republic of Equatorial Guinea in July 2011 at its 17th Summit adopted a declaration in support of the UN General Assembly adopting such a resolution.239 1.3.1.

The Protection of Human Rights of Children in the Democratic Republic of Congo

The UN Committee on the Rights of the Child has in its recommendations to the government of the Democratic Republic of Congo (DRC) urged the government to find ways to put an end to FGM and other traditional harmful practices to the health of the women and the girls.240 As a response the DRC Ministry of Health established in 2002 a national Committee for the fight against harmful traditional practices and FGM practices, which has mainly only existed in name and not been effective.241 This Committee is to work together with national and 237 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 43 238 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 44 239 No Peace Without Justice, Female Genital Mutilation Program, AU Summit: NPWJ welcomes the African Union support the adoption of a UNGA resolution to ban FGM worldwide, Malabo, Equatorial Guinea, 1st July 2011, www.npwj.org/FGM/ AU-Summit-NPWJ-welcomes-African-Union%E2%80%..., Accessed September 21, 2011 240 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf, p. 57 ; Translated from French by author. 241 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits

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international organizations, with churches, NGOs, and women’s organizations to create national programmes that would put an end to all forms of FGM and to their prevention, and as well to put an end to all other traditional practices that are deemed to be harmful to the health of women and girls.242 Apart from FGM that is still being practiced in DRC, other traditional harmful practices that are being carried out especially in the rural areas include marriage without the consent of the girl, the excision and the abduction of a young girl in order to marry her. All of these practices including carrying out FGM have been illegal according to the DRC penal law, which for instance made it a crime for a parent(s) who forces a daughter to get married, or who gives her away in marriage without her consent.243 This penal law with regards to children has been strengthened by the new Law from 2009 on children. Efforts to strengthen the rights of children through the introduction of new legislation has taken place in DRC, where the National Assembly and the Senate of the DRC adopted a new children’s law in the DRC in January 2009, “Loi no 09/001 du 10 janvier 2009 portant protection de l’enfant”, in which a child is con-

de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf, p. 57 ; Translated from French by author. 242 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf, p. 57 ; Translated from French by author. 243 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf, p. 57 : The Congolese Code Pénal : Article 174 f de la loi sur les violences sexuelles : Sans préjudice de l’article 336 du Code de la Famille, sera punie d’une peine de un an a douze ans de servitude pénale et d’une amende ne pouvant être inférieure a cent mille francs congolais, toute personne qui, exerçant l’autorité parentale ou tutélaire sure une personne mineure ou majeur, l’aura donnée en mariage, ou en vue de celui-ci, ou l’aura contrainte à se marier. » It is punishable with one to twelve years imprisonment and a fi ne which cannot be under one hundred thousand Congolese francs, for a parent (someone exercising parental authority) or any other caregiver to give away or force a minor to marry. If it is a person under the age of 18 years the punishment is the double. On the banning of female genital mutilation the law stipulates in Article 174 g that this is a crime punishable with two to five years in prison and a fine of two hundredthousand Congolese francs, if a person conducts an harmful act against the physical integrity or the genital functional organs of a person. If the mutilation leads to death, the penalty will be life imprisonment.‘Sera puni d’une peine de servitude pénale de deux à cinq ans et d’une amende de deux cent mille francs congolais constants, quiconque aura pose un acte qui porte atteinte a l’intégrité physique ou fonctionnelle des organs génitaux d’une personne. Lorsque la mutilation a entraîné la mort, la peine est de servitude pénale à perpétuité’.

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

sidered to be all persons under the age of 18 years (Article 2(1)).244 The Law provides several definitions including on “a refugee child” (enfant réfugié) as a child who has had to flee its own country across an international border and who requires refugee status or any other form of international protection (Article 2(3)), and the law defines “children in difficult situations” (enfant en situation difficile) as a child that does not enjoy his/her fundamental rights and does not have access to social services including for health, housing, nutrition and education (Article 2(4)). Further definitions include “a child in an exceptional situation” (enfant en situation exceptionelle), such as for instance a child in situations of armed conflict, tensions and civil disturbances, and in a natural catastrophe (Article 2(5)). The Law clearly states that it applies to all children living within the territory of the DRC without discrimination (Article 3). The Law gives children the right to express his/her opinion in all matters of interest and these opinions are to be taken into account in accordance with the child’s age and maturity (Article 7). The Law gives children the right to life (Article 13), and that all children have a right to a birth identity, which includes a name, where the child lives, the date of birth, gender, the name of the child’s parents and nationality (Article 14). All children have the right to be registered within 90 days following birth (Article 16). All children have the right to the best health possible, and here the government is to develop strategies to reduce child mortality (Article 21). The Law gives all children the right to education, stating that all parents or caretakers have the duty to let all their children without discrimination go to school, and that the government has the obligation to guarantee this right and provide free primary education (Article 38). Children who have become displaced, refugees or who try to receive refugee status have the right to protection and to receive humanitarian protection whether or not they have parents or other caretakers (Article 41). All children that live with a physical or mental disability have the right to among other things protection, specialized medical care and to an education (Article 42). The Law also affords children duties, including that the children have the obligation to obey their parents, and respect their superiors, elderly persons and any other person who are to assist the child (Article 44(1)), and that children should contribute to in all circumstances and at all levels to the promotion of the values of civics and democracy, such as the culture of peace, tolerance, dialogue, unity and national independence (Article 44(10)). Furthermore all children are awarded the right to know their parents, and no one has the right to ignore his/her child born in or out of wedlock (Article 47), child marriage is prohibited (Article 48), and harmful traditional practices that are in contravention to the health and life of the child is prohibited. According to Article 50 children cannot be employed before the age of 16 years, and children aged 15 years cannot be employed even for apprenticeship unless a judge 244 The President of the Republic promulgates the Law, Loi no 09/001 du 10 janvier 2009 portant protection de l’enfant, http://www.leganet.cd/Legislation/ JO/2009/L.09.001.10.01.09.htm

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for children has given his/her consent. A child that works maintains the right to continue his/her education until the age of 18 years (Article 51). Work that is totally prohibited for children include being forcibly recruited to be used in armed conflicts (Article 53 (c)). According to Article 57, the child has the right to be protected from all forms of exploitation and violence; however corporal punishment either by a parent or by educational facilities has not been prohibited and instead the child is to be treated with humanity. Furthermore sexual harassment in all its forms is prohibited (Article 60), and children are also to be protected from all forms of exploitation and sexual violence (Article 61). Children are awarded “special protection” in situations that are considered to be difficult such as children accused of witchcraft, girl mothers and girls who are pregnant and who are the object of being maltreated by their parents, and orphans (Article 61(7), (8) and 12). Children are to be awarded “exceptional protection” if they have been recruited and used by the armed forces and armed groups including the police (Article 71). The government in this regard is to ensure that children who have been recruited or used in the armed forces or armed groups will be reinserted into the family or the community (Article 71). In the context of exceptional protection, the government is to among other things guarantee the protection and education of children who have been affected by armed conflicts, tensions or civic disturbances, and especially to those who have been found and not been identified with regards to their familiar environment (Article 72). Article 72 is also applicable to children who get displaced because of a natural disaster or conditions of socio-economic degradation. 1.3.2.

Early Child Marriage and Yemen

Early child marriage is common in Yemen, and the Gender-Development Research and Studies Centre at Sana’a University in Yemen conducted a study of early marriages in Al-Hodeidah and Hadramaut governorates in 2005 in Yemen, which showed that:245 – –

The percentage of early marriage among women reached 52.1% and among men 6.7%; Early marriage was one of the main factors for female drop out from school and their deprivation education;

245 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 119-120, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

–

–

–

– – –

– – – – –

– –

There is a link between early marriage and an increase in divorce (which is high among women who get married early), recurring marriages, and polygamy: it happened more than one when a man married a girl under 18 years Experiences of women who were married before turning 18 years old, clarified that they were not prepared for sexual relations with their husbands. They were lacking information about physical relationships, reproductive and sexual health. Also, they were suffering from lack of skills and capabilities necessary for taking care of children which led to depression and anxiety in young mothers. Young wives under 18 years of age felt insecure which consequently had a negative impact on developing feelings of affection and peace of mind; Early marriage isolates women and limits their movements subsequently reducing their skills for facing difficulties protecting themselves, and exposing them to physical and psychological abuse; Families consider girls as a burden, which they need to get rid of, and this leads to early marriages of girls; The majority of girls are married off without their consent, so they see marriage as coercion; The majority of families, especially in Wadi and desert areas in Hadhramaut, do not show any love or affection to their daughters during their upbringing because they believe that displaying these feelings would spoil the girl’s relationship with her future husband and in-laws; 19% of maternal mortality falls on women between the age bracket of 15 to 19; The ration of miscarriages for women under the age of 18 is 0.8% and for women over 18 is 0.56%; 65% of women do not receive any kind of treatment for gynecological disorders; Fistulas, anaemia, and malnutrition are widely spread among young wives (who are expected to become mothers); The government has not undertaken any steps to enforce the provisions of international treaties ratified by Yemen that include the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW, especially in what is related to amending the minimum age for marriage in the Personal Status Law, which represents one of the forms of violence against youngsters, boys and girls; Organizations and individuals advocating for women rights are working to legally establish the minimum age for marriage at 18 years; Civil society is fully aware about the issue of early marriage.

The study showed that societal changes in Yemen also have consequences for the prevalence of early marriages specifically:246 246 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Tradi-

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– –

–

The spread of education to the whole population, particularly girls, which raises awareness about different detriments and dangers of early marriage; The increased cost of living and economic requirements for creating a new family in a time when the community in general, and especially in urban areas, is witnessing an attempt to change the composition of families from being an extended family (where all live in one house and the head of the family covers all expenses, especially when his sons have no income), to a nuclear family (where the husband provides for his wife and children); The minimal marriage age established at 15 by the Personal Status Law.

The study found that some adolescent girls supported early marriage which the researchers meant was a reflection of the way most girls in Yemen are brought up.247 This upbringing of girls includes despotism and intimidation of the child, where dialogue is not encouraged, and the men’s decision-making power within the family is thus strengthened and cements their role.248 The self-confidence of the girls and the quality of their inter-personal social relations such as with husbands and in-laws are weakened by this kind of upbringing. Furthermore the researchers mean that this type of upbringing leads to girls developing feelings of self-contempt, that they downgrade themselves, and enforce negative stereotypes about themselves which have the consequence of them not being able to take initiatives and becoming passive as adult women all of which also results in anxi-

tions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 119-120, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 247 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 121, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 248 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 121, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

ety in the girls.249 The researchers caution that this type of upbringing is being “passed on from generation to generation” as the girls when they have children themselves risk adopting the same kind of upbringing that they are used to. Another study of early marriage in Yemen conducted by Al-Sharjabi in 2003, found that early marriage was “one of the direct causes of domestic violence”, and women from rural and tribal governorates in particular said that early marriage was “one of the most important causes of violence against women and frequent disputes between spouses, which leads husbands to carry out psychological and physical forms of violence against their wives”.250 Another study in Yemen from 2002 found that when males marry when they are young this has the consequence of them using physical violence in their marriage.251 The study from 2005 found that early marriage was very common as all the children were familiar with several such cases, and that boys are also married off at a young age:252

249 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 121, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 250 Al-Sharjabi 2003 in Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham AlEryani, Dr. Suad Al-Sab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 121, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 251 Al-Mutawakeel 2002:18 in Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad Al-Sab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 121, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 252 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 146, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages

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In our area this father married his son who is only 12 years old and still playing, to a girl who finished high school, so that she can serve his mother. One 15 year old boy was married by his father to a young girl because his mother was sick and needed somebody to serve her.

The most important negative consequences of early marriage were according to the children health concerns such as:253 One week ago I went with my mother to the hospital to visit her friend and next to her was this young girl around 17 years old and her husband who is old. She could not get pregnant and when she fi nally gave birth, her uterus was removed completely. The doctor said that it was the biggest mistake her getting married. My friend got married when she was in the 6th grade. She got pregnant and had a miscarriage because her uterus could not bear the pregnancy. One of my female relatives got married at 14 … her first child is mentally retarded.

The consequences of early marriage on the girls are multiple, and the study showed that the most common problem was their painful experiences from having had to engage in sexual relationships.254 Other consequences are to be deprived of one’s childhood, risking their lives because of difficult pregnancies and childbirth, being responsible for the household of her in-laws, divorce, difficult

and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 253 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 147, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 254 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 147, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

family life and motherhood at too early age which means that a child is to take care of other children without having the maturity to do so.255 The study in 2005 also showed that in general the children knew that a marriage is an early marriage when it takes place before the age of 18 years, but that otherwise to certain children early marriage was a marriage that takes place prior to a person turning 13–15 years of age and to other children early marriage was a marriage taking place at the age of 9 years.256 Further the 2005 study showed that most of the children from the urban areas were against the practice while most of the rural children were for it, but the majority of children still thought that children were too young to give birth and become a mother or have a well-functional relationship with the in-laws.257 Here are some opinions that the children expressed on child marriages:258

255 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 147-148, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 256 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 148, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 257 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 148-149, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 258 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 149, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

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It is oppression for a girl because she is not prepared physically and sometimes dies while giving birth. Fear of wrongdoing sometimes dictates marriage before she is ready to bear responsibility. Early marriage leads to continuous childbirth and increase in the population numbers. It should not be allowed because it deprives a girl from enjoying her childhood. It is not right because she cannot bring up her children properly.

The researchers found that social and economic concerns were the most important reasons for early marriage, and that from the viewpoint of the girls the main social reasons ranged from a fear of not getting married (a woman was considered by the children to be too old for marriage at the age of 20 years), a girls wanting to get married, a girl wanting to get away from home and problems in the family or “the constant nagging that she has become old and still not married”, ignorance, to “becoming excited with the gold and clothes offered”.259 Other reasons from the side of the parents include a fear that their daughter or son “will misbehave or deviate and incur disgrace; a desire to protect a girl; fathers’ wish to ensure his daughter’s future, lack of awareness about the dangers of early marriage; … to rectify breaches of honour”, or for the child to help take care of her in-laws.260 The economic reasons for early marriage encompass poverty, greed to lay hands on

259 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 150, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 260 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 150-151, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

the girl’s dowry, the father needing the girl’s dowry for marrying off her brother, balancing his expenses, or to lessen a financial burden.261 The children participating in the study came up with several solutions on how to combat early marriage of which some are noted here:262 – – – – – – – – – – –

Giving girls attention in educational institutes and providing female teaching staff; Poverty alleviation; Continuous education for both genders; Social lobbying for setting a safe age for marriage; Religious education through mosque preachers; Educating youth and parents about health, social, and other consequences of early marriage; Engaging all means of mass media in raising awareness; Conducting seminars, TV shows, and producing illustrated stories displaying detriments of early marriage; Organizing meetings with specialists for expounding dangers of early marriage; Providing recreation facilities, clubs for youth, and activities to occupy their spare time; Placing a law prohibiting the marriage of minors and creating job opportunities.

Given that the children participating in these studies know a lot about early marriage and as well the very insightful solutions to combat early marriage that they proposed, seems to lead to the conclusion that these issues are something that many children and youth in Yemen think about. Growing up these are very complex issues for children and adolescents to consider, and shows the necessity to 261 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 151, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007 262 Dr. Ishraq Ahmed Al-Eryani, Dr. Arwa Al-Azzi, Dr. Ilham Al-Eryani, Dr. Suad AlSab’a, Dr. Najat Sayem, Gender-Development Research and Studies Centre, Sana’a University, Republic of Yemen, Development Struggles versus Poverty and Traditions: Sexual Violence against Female Teenagers in Yemen, Chapter 4, p. 151, in Ouis, P. and Myhrman, T., Gender-based sexual violence against teenage girls in the Middle East, A comparative situation analysis of honour violence, early marriages and sexual abuse in Lebanon, the occupied Palestinian territories and Yemen, Save the Children Sweden, 2007

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bring an awareness to that children are subjects of rights who have right to be heard and whose views need to be taken into consideration. When Yemen was unified in 1990, the minimum marriage age was established to be 15 years, while before the unification the minimum marriage age in southern Yemen was 16 years, and in the northern part of Yemen it was 15 years.263 However, the minimum age was done away with in 1999 as a result of that the personal status law was changed, making it possible for parents to marry off their daughters before they turn 15 years as long as the husband does not have sexual relations with a girl child until she is mature, which is seldom enforced.264 The Women’s National Committee (WNC) in Yemen requested in April 2008 that the Yemeni Parliament amend the personal status law and make it into law that 18 years of age be the minimum age for marriage for females and males alike, which was not accepted by the Evaluation and Jurisprudence Committee of the Parliament which argued that there were “no legislative grounds to impose such a law based on its understanding of Islam”.265 Several women’s organizations, civil society organizations and 61 members of the Yemeni Parliament had worked to have such an amendment passed. In February 2009 the Parliament voted on this amendment and most of its members voted for the law, but the Sharia Committee was against it which led to it being returned for review to the Constitutional Committee of the Parliament.266 The amendment would also lead to that parents who have their daughters younger than 17 year married off or their sons younger than 18 years married off would risk having to pay a fine and be imprisoned for one year. A fatwa was ordered by many clerics opposing the law and a minimum age, and those groups being against the new law include conservative members of the opposition party, Islah, members of the Sharia Committee and different religious institutions.267 In the context of early marriages it is important to note

263 Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport.aspx?ReportID=88589 264 Ali, N. with Minoui, D., I am Nujood, Age 10 and Divorced, 2010, p. 181, and Shada Mohammed Nasser, attorney at the Supreme Court, in Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport. aspx?ReportID=88589 265 Yemen Parliament refuses to legislate minimum age for marriage, -4-15-2008, Forums, In the News, (Source Yemen Times) http://community.comcast.net/t5/InThe-News/Yemen-Parliament-refuses-to-legislate-mi..., accessed March 14, 2011 266 Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport.aspx?ReportID=88589 267 Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport.aspx?ReportID=88589: As of 2010, the then President of Yemen, Ali Abdullah al-Saleh was still to put the law into effect: Ali, N. with Minoui, D., I am Nujood, Age 10 and Divorced, 2010, p. 172

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

that proper birth registration is of major concern in Yemeni society, which makes it possible to manipulate age.268 A case that was very much publicized in Yemen was when in April 2008 the 10-year old child bride, Nujood, went herself to the West Court in Sana’a asking the judge for a divorce from her husband who was 30 years old at the time to whom she had been married for two months.269 Nujood was the first child bride who won a divorce in Yemen, and several other girls have come forward after her. There have been many public debates in Yemen regarding early child marriages which “has polarized Yemeni society”.270 Shada Mohammed Nasser is an attorney at the Supreme Court and she was Nujood’s lawyer and is an expert on child bride cases and has said:271 There are hundreds of Nujoods who have been subjected to sexual abuse by mature men. The problem is that there is no law to punish the father who marries off the child, the sheikh who allows the marriage, or the husband who takes the child home to serve him as a wife.

According to the Global Gender Gap Index of 2010, Yemen ranks the bottom last at 134 of all the countries surveyed, while in 2007 Yemen ranked at 128, in 2008 at 130, 2009 at 132. (Côte d’Ivoire ranked at 130 as a new country 2010, Chad at 133).272 The Global Gender Gap Index is produced by the Davos Economic Forum, and measures economic participation and opportunity, educational attainment (primary, secondary, tertiary education), health and survival and political empowerment.273

268 Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport.aspx?ReportID=88589 269 Ali, N. with Minoui, D., I am Nujood, Age 10 and Divorced, 2010 270 Irin, Yemen: Deep divisions over child brides, Sanaa, 28 March 2010, http://irinnews.org/PRintReport.aspx?ReportID=88589 271 Yemen Parliament refuses to legislate minimum age for marriage, -4-15-2008, Forums, In the News, (Source Yemen Times), http://community.comcast.net/t5/InThe-News/Yemen-Parliament-refuses-to-legislate-mi..., accessed March 14, 2011 272 World Economic Forum, Table 3a: The Global Gender Gap Index 2010 Rankings: Comparisons with 2009, 2008, 2007, and 2006 (cont’d), The Global Gender Gap Report 2010, World Economic Forum, Geneva, Switzerland, 2010, www3.weforum. org/WEF-GenderGa—Report_2010.pdf 273 World Economic Forum, The Global Gender Gap Report 2010, World Economic Forum, Geneva, Switzerland, 2010, p. 4, www3.weforum.org/WEF-GenderGa—Report_2010.pdf

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1.4.

Growing Up in Afghanistan I witnessed many killings in my region over the past 25 years. People’s houses were destroyed, their land was confiscated, young men were killed, people’s wives were forced to marry men of power, their children were sexually violated, their belongings were looted, they were tortured and imprisoned, mass murders took place, people were buried alive, and many just disappeared. – Man from Ghor274

The people in Afghanistan have suffered immensely since the Soviet occupation that began in 1979 up until the present days when armed conflict continues. It is necessary to acknowledge the depth of people’s suffering and there is a need to put the atrocities being committed today in the context of what has taken place since the Soviet occupation began. The violations committed for instance during the Soviet occupation affected people’s ability to practice their religion and the education in schools were politicized, and it might be wise to put the ensuing fundamentalism, extremism and terroristic tactics into this context. During the Soviet occupation in Afghanistan from 1979 to 1992 the Soviet run People’s Democratic Party of Afghanistan (PDPA), controlled all educational institutions in Afghanistan.275 At the university it was compulsory to take Marxist classes and the Russian language, and in the high schools ”politics” classes replaced religious classes and in these classes much pressure was put on the students to join the PDPA. The teachers got a reprimand or were arrested if they did not acquiesce to the imposed ideology, and students could be arrested if they spoke up in class.276 Ninety-nine per cent of the Afghan population are Muslims, and under the Soviet rule it was an obstacle to be successful in school if the student was observing Islam and the student could risk persecution, punishment and arrest as could the teachers if doing so:277 We are not allowed to speak about religion in the school. If we speak about religion the Peshahangan send reports to KHAD. The Peshahangan are responsible to report about the teachers. If the teachers speak about religion, they must report it. I had made some trouble myself. They interrogated me and sent me a letter, that next time I speak about religion I will get in more trouble. This was a warning. If it happened a

274 Afghanistan Independent Human Rights Commission, AIHRC, Afghanistan, A Call for Justice, A National Consultation on Past Human Rights Violations in Afghanistan, 2005, p. 9 275 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 49 276 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 49 277 KHAD was the acronym for the State Information Service in Afghanistan under the Soviet rule, p. 5 in Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 55

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

second time, I would be sent to prison. (A testimony of a former teacher, Peshawar, August 25, 1985)

For the purposes of indoctrination many Afghan children were being sent to the Soviet Union in order to go to school and receive a proper Soviet training, and this was one of the four most significant findings that Helsinki Watch/ Asia Watch reported in 1985:278 Thousands of children are being sent to the Soviet Union for ten years of education, in some, perhaps many, cases without the consent or knowledge of their parents. Under an agreement signed in April 1984, children are first gathered in institutions called Parwarishgah-e-Watan (Fatherland Training Centers), supposedly intended for the education of orphans of “martyrs of the revolution.” They are then sent to the USSR in large groups to be raised away from their parents and culture in special centers. Some children are sent voluntarily, some under pressure, and some by force. The authorities have arrested some parents who refused to let their children be sent.

The children ranged from kindergarten age to university students and some went voluntarily, some were pressured to go, some went because of deceit or force.279 As was being told by a woman medical doctor:280 They were sending children from kindergarten, about three years old up to nine years old, they were sent to the Soviet Union. Kindergarten and pre-primary school children were sent, too. The parents had to send their children, because if there was a group of 20 children, if maybe five were willing to send their children, because they were Party members, fifteen of them were opposed, but they had no right to refuse. They had to send them because of the fear that the government will punish them. I don’t know their names, but some people were coming to work (at a hospital in Kabul) and talking about this. When I asked them, ‘Why do you send your small children to the Soviet Union,’ they said that they had to, because there was no other way. I heard this personally from many patients I examined, from teachers, from nurses in the hospital. The children stayed 20 days, one month, up to six months. (Testimony of Dr. Zakia Bayati Safi, obstetrician-gynecologist, aged 29, of Kabul, August 22, 1985 in Peshawar)

Many children that had become orphaned by the war when their parents had died in a bomb attack caused by the Soviets were sent directly to the Soviet Union as a former military communications specialist explained:281 278 279 280 281

Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 4-5 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 71 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 73 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 75

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When they bomb some village and the parents lose their lives, if some children survive, they collect them and take them to the Soviet Union. They collect babies, two years old, three years old, and send them to Russia. We were getting reports from the districts and subdistricts. The military commanders in the political headquarters had to report, ‘In this area we have completed the operation, and so many villages were destroyed, and so many children captured by the “forces of friendship” (quwa-e dost, the term used to refer to Soviet forces) and transferred by helicopter to the Soviet Union.’ In many, many reports they said that so many children were captured.

It needs to be underlined that there is no registration available in 2010 in Afghanistan of these children who were taken to the then Soviet Union, and there was never any follow-up.282 The Soviet militaries also indiscriminately and deliberately targeted children in different attacks and many children as a result were killed during that period:283 When the people gather the harvest, the Russians completely burn the harvest with tanks, rockets. When they come to the village they kill children, ladies, (unmarried) girls, old people, and they say, ‘We don’t need the people, we need the land.’…

Many women were raped during the Soviet occupation and as a result died because of the brutality of the rapes, and many pregnant women were especially targeted and had their babies cut out of their wombs killing both the baby and the mother:284 Survivors of the massacres in Chardara district, Kunduz (December) told Dr. Juliette Fournot of Soviet soldiers disemboweling three pregnant women with bayonets. During searches the previous week a number of women were reportedly raped. …At Charbargh the neighbors of Gul Haidar told me that when the Russians went inside his house, his wife was in the process of giving birth to a child. After the departure of the Soviet troops, the neighbors found everybody dead: bullet holes all over Gul Haidar’s body, his wife and her belly torn open and the newborn baby horribly mutilated. In Shahmangal, the Russians took pregnant women and asked them, ‘What’s in your stomach? A grenade? A mine?’ The woman would turn her face away, because 282 Information by email from Ahmad Nader Nadery, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, July 3, 2010 as a response to a question regarding this matter by the author. 283 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 7 284 Helsinki Watch/ Asia Watch, To Die in Afghanistan, December 1985, p. 39-40

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

Afghan people don’t talk like that. The Russian said, ‘There’s a hand grenade or mine in your stomach.’ Then they took bayonets and stabbed them in the stomach, killing the unborn baby and the mother.

In the course of the wars since 1978, it is estimated that more than one million people in Afghanistan have died, and about the same number of people have become disabled because of the wars.285 1.4.1.

Afghanistan and the Human Rights of Children

The Afghan Independent Human Rights Commission (AIHRC) has reported that the worst common types of violence that the children face are physical and sexual violence, which include humiliating corporal punishment, negligence, sexual exploitation and trafficking, worst forms of child labour, early and forced marriages, gender-based violence and discrimination.286 While these types of violence very much remain, the most pressing concerns for the children and youth in Afghanistan include the situation for the children in armed conflict who are harmed by the military operations and who are also being used as suicide bombers by the insurgents.287 Child labour is the second most pressing issue according to the AIHRC, and thirdly, access to education for children and especially for girls in the south of the country which is largely affected by the insurgent’s operations is another pressing issue.288 Just in Kandahar 207 schools out of 332 had to close by April 2010 due to the insurgents.289 The AIHRC has stated that the pre-existing Afghan laws do not yet comply with the CRC, which Afghanistan ratified in 1991 and the principle of the best interests of the child is not adhered to, and that therefore new legislation must be introduced that will properly protect the rights of children.290 While no new legislation has been adopted, early in 2009 a clause on the minimum age of criminal prosecution was proposed in a new law to be set at 14 years, and due to the advocacy of the Commission the age was changed from 14 to 16 years of age, which

285 AIHRC, A Call for Justice, A National Consultation on Past Human Rights Violations in Afghanistan, 2005,www.aihrc.org.af, accessed June 30, 2010, p. 4 286 Afghanistan Independent Human Rights Commission (AIHRC), November 2008, www. aihrc.org.af 287 Information by email from Ahmad Nader Nadery, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, April 21, 2010 288 Information by email from Ahmad Nader Nadery, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, April 21, 2010 289 Information by email from Ahmad Nader Nadery, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, April 21, 2010 290 Afghanistan Independent Human Rights Commission (AIHRC), November 2008, www.aihrc.org.af

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still does not reflect what the CRC says, 18 years. There are no plans to introduce new legislation for children. Instead the law that is still in force is the 2005 law of investigation of children’s crimes or misdeed which was ratified and enforced in 2005, and this law sets the minimum age for criminal investigation at 12 years of age (Article 5 of the 2005 law).291 However, at the same time under this law according to its article 4 a child is a person who is under the age of 18 years, which is in conformity with the CRC. No other legislation regarding the best interests of the child or child protection law has been codified. The major challenges to the work as a human rights commissioner and for the Commission in the context of the current situation in Afghanistan are first the continuation of the armed conflict, the existence of organized crimes and terrorist groups and warlordism, a culture of impunity that enables perpetrators to continue abusing the rights of children and the economic vulnerabilities of the families.292 1.4.2.

Child Labour in Afghanistan

As a result of the continuous armed conflict and the earlier wars child labour is very common in Afghanistan and the Afghan Deputy Minister of Labour, Social Affairs, Martyrs and Disabled has stated that about 1.5 million children have to work to provide for their families as the breadwinners for reasons such as that the fathers of the children or other family members have died or become disabled.293 A study about child labour of 12,074 persons showed that in 38 per cent of the families the children under the age of 15 years worked, and that 24 per cent of these children were the families’ main source of income.294 The Afghan Constitution prohibits child labour in its Article 49; however the Afghan Labour Law of 1385 (2007) makes it possible to employ persons from 15 years of age to do light work, and to employ persons from the age 13 years as apprentices. The Afghan Labour Law at the same time recognizes that children are engaged in harmful work which it prohibits providing that “[e]mployment of persons under 18 is prohibited to a type of work that is harmful to their health and causes

291 Information by email from Hamida Barmaki, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, June 12, 2010 292 Information by email from Ahmad Nader Nadery, the Afghanistan Independent Human Rights Commission, Kabul, Afghanistan, April 21, 2010 293 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 46 and 49 294 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 46

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

physical damage or disability”.295 The ILO Forced Labour Convention was being ratified by the Afghan Parliament’s lower house in 2009, and was to become enforceable as soon as the Afghan president had endorsed it.296 However, so far there is no governmental mechanism developed to decrease or eradicate child labour, and it is NGOs that are working to raise awareness about this problem. Several Afghan studies have shown the high number of children working and that it is very much a continuous problem. One study of year 1384 (2005/2006) showed that of 3,866 people interviewed 48 per cent had one child under 15 years working on minimum, in year 1385 (2006/2007) a study of 11,071 interviewed showed that 37 per cent had children under 15 years forced to work, and 48.9 per cent said that most of their children worked, in 1386 (2007/2008) 36 per cent of the interviewed had children under the age of 15 working, and in 1387 (2008/2009) it was 38 per cent of all the interviewed that had children under 15 years needing to work.297 It is also important to consider the special environment in Afghanistan with the sub-zero cold temperatures found in the central provinces such as in Ghor and Bamiyan and the extremely hot environment with temperatures reaching 40–45 degrees Celsius found in Herat, Farah and Kandahar which exposes children who work to additional harmful conditions and as AIHRC explains children “are exploited in all circumstances”.298 Child labour is one of the most pressing concerns regarding the situation for children in Afghanistan, and the combination of three decades of war and the continuous armed conflict has led to a deep deterioration of the economic and social conditions which forces children to work to provide for their families. This also needs to be seen in the context that many families have lost their breadwinners during the many wars of armed conflict, a situation which has led to a reality where a number of both women and children have become heads of households. As these children are most often excluded from going to school and their situation of being poor and illiterate is not likely to improve if real efforts to address their situation are not implemented. One study conducted by AIHRC in Afghanistan regarding child labour identified the kind of “harmful work” that the children engage in. The study 295 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 46 296 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 49 297 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 46 298 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 48

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showed that the harmful work the children were conducting included: work with the military (0.3 per cent), smuggling (0.4 per cent), begging (0.5 per cent), not enough light (0.6 per cent), poppy growing (0.8 per cent), dangerous tools/ machinery (1.2 per cent), working abroad (1.7 per cent), working at night (1.9 per cent), working on the street (5.8 per cent), chemicals and fumes (6.5 per cent), unable to go to school (11.9 per cent), searching for scraps (12.6 per cent), excessive heat, cold or noise (21.6 per cent), and carrying heavy loads (34.2 per cent).299 The working environment of the children is most often “unsafe, unhealthy and unfavourable”, and involves: long working hours, abuse such as ill-treatment, physical hazard, different health risks, as well as being in polluted environments and working with dangerous equipment.300 Importantly this study and estimates of child labour in Afghanistan in general do not include those children working at home or in agriculture which limits the knowledge about the true extent of the situation for the children who are forced to work.301 These families do not necessarily think of such child labour as harmful for children. Another issue is that many times neither the families nor the children regard child labour as something wrong, but more as an opportunity to learn new skills and to earn money.302 This means that certain attitudes and the mentality need to be changed in order to be able to improve and ensure the rights of children. Also as AIHRC notes one fundamental consequence of child labour is that children cannot attend school, and thus their right to education is not protected. Harmful traditional practices in Afghanistan include bad and badal marriages, traditionally justified domestic violence, early marriages, and forced marriages, and it is usually the women and girls that are victimized.303 In this context AIHRC argues that “[t]radition plays a key role in social relations, family relations, and the justice system in Afghanistan and unfortunately relevant authorities scarcely resort to legal, cultural, and awareness-raising mechanisms in

299 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 48 300 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 49 301 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 49 302 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 49 303 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 18

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

response”.304 Furthermore, AIHRC reports that domestic violence is manifested in different ways like: forced marriage, child marriage, trafficking, forced prostitution, honour killings, abuse, neglect and psychological torture.305 With regards to marriage the AIHRC underlines that Article 10 of the ICESCR stipulates that “marriage must be entered into with the free consent of the intending spouses”, an article that is most of the time disregarded.306 The Afghan Civil Code stipulates that for boys 18 years is the minimum age for marriage while for girls it is set to 16 years, which is at odds with the Afghan Constitution which states that women and men are to be afforded equal protection before the law and of their rights. A child between 15 and 16 years of age can only marry according to the Afghan Civil Code if the father or a court has permitted it, and it stipulates that a child younger than 15 years cannot marry.307 This means that forced marriages are illegal. In this context, AIHRC makes reference to that in its General Comment 21 on Equality in Marriage and Family Relations the Committee on the Elimination of Discrimination against Women has stated that to have different ages for men and women when they can marry is not in accordance with CEDAW.308 AIHRC stipulates that the Islamic Sharia law and the Afghan Constitution afford women and men equal rights, but that in practice this is not the case and that “[t]he current rules do not offer protection for women”.309 For instance the registration of all marriages is a requirement according to the Afghan Civil Code, but in reality very few marriages are being registered as there is no formal mechanism or enough facilities where marriages or divorces can be registered.310 Not being able 304 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 18 305 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 54 306 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 55 307 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 55 308 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), footnote 88 and p. 54-55 309 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 54 310 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 54

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to formally register marriages or divorces or to enforce such a requirement is one cause of early and forced marriages and is also one cause of ill-treatment of women and girls according to the AIHRC. As the AIHRC stipulates it is the girls who in a disproportionate manner enter into early marriage, and one study of 1,662 children who had entered early marriages showed that of these 90 per cent were girls and 10 per cent were boys.311 As there is no formal governmental mechanism for registering marriages it is not possible to know the true extent of forced or early marriages of children; however the AIHRC accepts and registers complaints regarding forced and early marriages and bad and badal marriages from around the country. On average 27 per cent of each 100 complaints regarding violations of the right to marry concern marriages of children below 15 years of age.312 It was found in a field study carried out by the AIHRC that about 7 per cent of the children participating had entered into marriage before the legal age, and according to the governmental national statistics about 57 per cent are girl child marriages.313 The reasons for early marriages are several; however poverty is the main common reason as many view early marriage as a matter of survival and having one less child to feed.314 This must be seen in the context of the long-term armed conflicts that Afghanistan has gone through. It has been shown that “55% of child marriages are entered into to solve economic problems” and that 30 per cent constitute badal marriages which are entered into to cut marriage spending and therefore have economic implications for a family.315 Another reason in Afghanistan is protecting the girl’s virginity by marrying her off early so that she cannot engage in pre-marital sexual relations. However, as is reflected by the Afghan Civil Code which allows for a lower age for girls to be married, there is also a social acceptance of early marriages of espe-

311

Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57 312 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57 313 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57 314 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57 315 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

cially girls in a context where there have been no legal prosecutions of any parents for having allowed for forced or early marriages of their children.316 This is an example of a case of forced marriages that AIHRC received in year 1387 (2008/ 2009):317 A fourteen-year-old girl was compelled by her father to marry a fi ft y-year-old man in exchange for 20 sirs (1 sir is usually equal to 7 kilograms) of barley and 10 pounds of opium. The girl does not want to marry that man; the Commission protected this girl and its employees were able to annul this marriage in cooperation with elders and local influential figures after continued talks with the two families concerned.

Other harmful traditional practices are bad and badal marriages. The practice is called bad marriage when there is a dispute and a community dispute resolution is involved in settling the dispute, and in these cases most often the settlement results in a transfer of a girl to the party of the dispute that is the proven victim.318 Mostly these girls are very young and are given in marriage to older men. The badal practice mostly concerns girls who are being exchanged, such as that a girl marries a boy whose sister would marry the girl’s brother. These two practices, bad and badal marriages, take place without the consent of the children, and mostly girls are involved. One case of a bad marriage registered by the AIHRC in year 1387 (2008/2009) is illustrative of the practice as well as showing that the AIHRC is at times able to find a solution to the situation:319 A father approached the Commission to annul the marriage of his girl (his daughter?) that took place thirteen years ago in compensation for an unintentional killing committed by the girl’s uncle. Her father says their family paid a huge sum of money to the victim’s family at that time, but his then six-month-old daughter was also handed over to them as bad, as a result of the local commander’s pressure. The now 316 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 57 317 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 18 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 55 318 The definition on bad and badal marriages was given to the author by email from Ahmad Nader Nadery, Afghan Independent Human Rights Commission, Kabul, Afghanistan, April 24, 2010 319 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 55-56

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thirteen-year-old girl does not consent to the marriage and her father approached the AIHRC for this reason. Follow-up by AIHRC resulted in the pertinent court issuing a judicial decision on the nullification of the girl’s betrothal.

The Afghan Civil Code stipulates that “in marriage, no woman shall be exchanged with another”, and the Afghan Penal Code provides that “a person who marries a widow or an under-eighteen girl against her consent and wish shall be sentenced to prison” and the Penal Code further states that “bad is against the laws and its perpetrators are sentenced to a prison term of medium duration”.320 As AIHRC points out “child marriage is extremely harmful” to girls and women, as children are not developed either physically or mentally to engage in sexual intercourse, and pregnancies are harmful to small bodies that are not yet fully developed.321 This is in the context of Afghanistan where girls can be forced “to marry very old men” the AIHRC reports. There is some evidence in research that indicates that “women who marry in their childhood are emotionally distant from their children”, which has an impact on the mental health of woman giving birth and the child alike.322 In Afghanistan there is an increasing number of persons with disabilities as a result of thirty years of war, and they belong to the most vulnerable groups in the society.323 The AIHRC reports that the Afghan government does very little for the disabled and has not ensured that the disabled are able to fully participate in society and have access to social and educational services. For instance land mines are a huge problem in Afghanistan where about 55 persons die a month from land mine related incidents.324 However, at the same time there is not much public awareness of the concept of disability, and the disabled are mostly viewed as burdens on their families and society and experience much humiliation and discrimination.

320 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 55 321 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 56 322 Medical Mondial in Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 56 323 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 18-19 324 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 19

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

The Afghan government is a party to the 2003 Ottawa Convention and is supposed to have declared Afghanistan free of land mines by 2013; however there are estimates that about four million people in Afghanistan reside in places where de-mining is needed.325 Budgetary constraints and lack of security hinder the work of many both national and international organizations that conduct mine-clearing activities. There are different data available on the number of people who are disabled in Afghanistan, where Handicap International has a figure of about 800,000 people that have “severe disabilities”, and where a national disability survey showed that between 747,500 and 867,100 of the Afghan population of 25 million had “severe disabilities”.326 Of them 17 per cent had war disabilities and 6.8 per cent had disabilities from land mines and other unexploded ordinance (UXO). It was shown that every fift h family has one member who is disabled. The government’s response to assist persons with disabilities has been at times both politicized and discriminatory, and apart from a monthly stipend of 400–600 Afghanis to disabled persons there had not been any budget passed by the National Assembly to help the persons with disabilities.327 This is in a context where 70 per cent of the people with disabilities who are over 15 years of age are unemployed. Also, the Afghan Constitution affords in its Article 53 that “necessary measures to ensure rehabilitation, training, and active social participation of persons with disabilities and provide them with medical and financial assistance” be provided for by the government.328

325 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 19 326 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 19 327 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 19-20; There is a draft National Law on the Rights and Privileges of Persons with Disabilities, and a National Action Plan for Persons with Disabilities, 2008-2011 328 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 18

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1.4.3.

Children and the Justice System in Afghanistan [C]hildren are particularly vulnerable to being targeted with charges of ‘moral offences’ as a means of social control.329

Harmful traditional practices have consequences for children that can be wide reaching, which the use of the justice system in Afghanistan as it is often applied to children who have been exposed to sexual abuse, forced marriage or underage marriage shows. In these situations children often do not have any means to defend themselves and very few alternatives to have their rights upheld as neither the community level conflict resolution system with the shura or jirga systems nor the national legal justice system as it is applied to children are capable in their current set-up of protecting the rights and integrity of the children.330 Instead children and especially girls are kept vulnerable to continuous abuse by individuals, their own families and the community and national justice system without any avenue of a real recourse that truly takes into account the protection of their rights and takes care of them. Afghan children who have been exposed to sexual abuse, forced marriage or underage marriage are often treated by the justice system as if they were criminal perpetrators and are many times punished for what they have been exposed to instead of protected from the abuse.331 As a result children do not come forward with what they have gone through, and therefore sexual abuse and exploitation are underreported. According to the Afghan Civil Code from 1977 a girl under the age of 15 years cannot be married, and between the ages of 15 and 18 years it is the fathers who have the authority to decide on all matters concerning a daughter’s marriage.332 The Afghan Juvenile Code from 2005 does not have any provisions regarding children who are victims of sexual abuse, exploitation or forced marriage.333 If a juvenile is accused of an offence, the Code stipulates that both the situation and circumstances of the case are to be taken into consideration, but in cases involving social norms a child who for instance has been the victim of rape can end

329 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 330 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 331 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 332 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 333 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

up being accused of adultery.334 As UNICEF states: “The failure to develop and implement appropriate legislation and policies to protect child victims of abuse and exploitation is resulting in the systematic re-victimization of children in the justice system.”335 There was a study carried out in 2007 of children in juvenile rehabilitation centres in Afghanistan and 247 children both boys and girls were accounted for.336 The study showed that 12 per cent of the boys had been charged with adultery or sodomy, but it was evident that many of these boys instead had been the victims of sexual abuse or exploitation by adults. It was also found that of the girls at the centre, 32 per cent of them had been charged with adultery or sodomy, 24 per cent had run away from home, and 14 per cent “were lost” or had no shelter to stay in. As UNICEF states the purpose of having a juvenile justice system is to be able to rehabilitate and reintegrate children who have been in conflict with the law; however in Afghanistan “the justice system continues to act as a tool for the punishment of children who have broken social and cultural norms”.337 UNICEF explains about “moral crimes” that:338 ‘Moral Crimes’ represent a significant proportion of charges brought against children in Afghanistan in the juvenile justice system. While some of these crimes, such as adultery, are defined in national law processing of such cases does not take into account the circumstances of the incident, the issue of consent, and the right of a child to have these issues taken into account (the principle of proportionality). While many children are taken into custody for their alleged protection it is apparent that there is no procedure for addressing these cases and for the use of deprivation of liberty as a means of last resort.

It is especially girls that are “vulnerable to coming into contact or in confl ict with the juvenile justice system in relation to ‘moral crimes’ and as victims of sexual abuse and exploitation”.339 Since there are very few if any protection services for 334 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 335 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 336 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 337 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 338 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 339 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008

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girls outside of their own families, in these cases the juvenile justice system becomes their only alternative. As UNICEF underlines “[m]any children in juvenile rehabilitation centres are there because they are at risk and in need of care and protection”.340 This is provided for in the 2005 Juvenile Code, but as UNICEF states, no child should be kept in detention if not accused of a crime, and that instead social service institutions should be providing assistance. UNICEF gives some examples of children who have been actual victims of sexual abuse, forced marriage or underage marriage but have been treated as if they have committed crimes by the Afghan justice system, asking Who is the victim?:341 A 14 year old boy was arrested on a charge of pederasty after allegedly spending 6 months as a passive sodomite with a man in a nearby village. The boy reported that he was forced to stay with the man and while the man was released the boy remained in a juvenile rehabilitation centre awaiting disposition. A 14 year old girl was arrested when trying to run away from her home as she would not accept her fiancé. She had been in detention for 3 months in a juvenile rehabilitation centre as part of a 1 year sentence. She was below the legal age for marriage yet had been sentenced. Her father has threatened to kill her when she is released. A 14 year old girl was sold for marriage for $2000 and then was sold on to another person for $5000. When this person forced her to have sexual intercourse she went into a coma and was transferred to hospital. Her case was registered in court. She was held in a juvenile centre for over 3 months with the judge insisting she should marry the man to whom she was sold.

It is important to consider that it is part of the legal process of sexual offences that both humiliating and abusive examinations of concerned persons in such cases are often conducted, and that these examinations are being carried out in all cases if the person is accused of a crime (such as adultery) or is the victim of such offences including children.342 Any person, also children, who is suspected of having committed a sexual offence needs to take a virginity test which is automatically carried out without the approval of the girl. There are not many juvenile justice facilities for girls in Afghanistan, they exist mainly for boys, and girls then share facilities with adult female prisoners,

340 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 341 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 342 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

and furthermore the girl’s rights such as to education are not provided for in the juvenile justice system to the same extent as they are for boys.343 That many factors need to be taken into consideration regarding the decisions handed down by the village councils like shura or jirga in Afghanistan (community level conflict resolution mechanisms) is highlighted in the following example provided by UNICEF:344 Children as compensation In one village a jirga meeting decided that a family should marry their 3-year-old daughter to a boy of another family to resolve a confl ict. Local organizations became aware of the case and started discussions with the village elders with the aim of nullifying the decision. The elders agreed that the decision to marry a 3-year-old girl is harmful and against Sharia and Islam, but that it was difficult to break a jirga decision as it would create problems and fighting in the community. However, the family of the girl felt the decision had been forced upon them, and was in addition to financial compensation. The family who claimed the girl said that they could not go against the decision and that they needed the compensation otherwise the boy could not get married. A further meeting took place. After long discussions the Jirga reluctantly agreed to nullify the decision. Included in the agreement was that the girl’s father should pay a fine and six cows to the boy and his family.

As UNICEF underlines, with regards to Afghanistan “[i]ncreased efforts must be made to challenge public perceptions about the situation of children accused of moral and sexual crimes to promote awareness that in the majority of cases children are victims in need of care and protection”.345 An additional issue is that when it comes to social and cultural norms and practices they have been carried out for generations and many times since the parents have been exposed as children to certain practices they might not see these practices as something dangerous or wrong, but something that a child needs to accept and conform to and not to challenge. For the parents to have challenged their own parents, family and community as children might have been an all too overwhelming task for them and continues to be so for them as adults, and therefore these types of norms and practices continue to be carried out. This is why it is imperative that a government steps in and takes seriously the protection of children and their rights, and begins with acknowledging that 343 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 344 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 345 UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008

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certain norms and practices are indeed harmful to children and then proceeds to identify the rights of children to be legally upheld, and then implement these rights so that the systems really do take into consideration the children and their rights and provide protection to children and their rights. To settle disputes and as a type of crime prevention the informal justice sector is many times portrayed as a culturally justified means to solve conflicts at the community levels, but it is also increasingly being acknowledged that such informal systems many times protect patriarchal structures which uphold cultural practices that are particularly harmful and discriminatory to women and children and do not acknowledge the rights of either women or children.346 Instead they perpetuate the existing structure that exclude women from decision making and that keep women and children vulnerable to harmful traditional practices and sexual abuse. These community level conflict resolution mechanisms culturally have only been seen to preserve the needs of the community and not the needs or the rights of individuals. In a society where human rights of women and children are also increasingly being recognized, as well as that the abuse and victimization of women and children in armed conflict cannot be separated from their situation and rights in peace time, these types of community level confl ict resolution mechanisms also in many instances need to be re-evaluated and restructured to be able to function effectively in a contemporary society. 1.5.

The African Report on Child Wellbeing In short, despite some progress over the last few decades, life for millions of Africa’s children remains short, poor, insecure and violent. The situation of these children is an aff ront to Africa and Africans; to their morality and conscience; and, above all, to the sense of worth and self-respect of all African governments. The alarming and deteriorating situation of children in many countries is of compelling urgency and deserves overriding priority on the public and political agenda.347

It is necessary to understand that even in the context of having limited resources available it is still fully possible to make substantial improvements in the economic, social and cultural areas by making conscious and deliberate public spending choices, which the African Child Policy Forum clearly gives evidence to. The African Child Policy Forum conducted a study in 2008 about how child-friendly

346 See for instance UNICEF, Justice for children in Afghanistan series, Double victims: The treatment of child abuse and exploitation in the justice system, Issue 2, October 2008 347 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 90

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

52 African governments were and came to surprising results.348 The Forum’s definition of a child-friendly government is “one that is making the maximum effort to meet its obligations to respect, protect and fulfil child rights and ensure child wellbeing”, and the foundation for its concept of child-friendliness is constituted of “Protection, Provision and Participation”.349 The study showed that some of the most child-friendly countries were some of the poorest countries and that some of the least child-friendly were some of the wealthier countries. There were two main reasons to why a country became one of the most child-friendly countries on the list: the first reason was that they adopted and implemented laws on child protection and to ensure their rights; the second reason was that they allocated a comparatively high part of their overall budget on especially access to health care and education for children.350 The infant mortality rate was lower and the nutritional status of the children was higher in these countries and these governments took action on the issue of gender disparity most notably with regards to education.351 Those countries that were the least child-friendly countries, such as Guinea-Bissau, Eritrea, and Central African Republic (CAR), had made very limited efforts in adopting sufficient legal protection of children and implementing effective child-friendly policies.352 For instance Guinea-Bissau and CAR had not developed strong enough laws to protect children from being subjected to harmful traditional practices especially, and CAR did not provide for free primary education nor was corporal punishment banned.353 The main concerns with regards to the countries that were low-performing were “[t]he lack of legal provisions to protect children from harmful traditional practices, the very low and discriminatory minimum age for marriage, and the absence of child-sensitive

348 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008 349 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 41 350 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 91. 351 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 91. 352 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 91. 353 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 91.

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juvenile justice systems”.354 Further, the government of Guinea-Bissau spent 3.5 per cent of its GDP on health care, while for the region the average rate is 9 per cent, and the Central African Republic government spent 1.4 per cent of its GDP on education when the average regional median is 4.3 per cent.355 It was found that the national efforts need not be linked to economic status of a country to become child-friendly, and that “[t]he availability of resources alone is therefore not necessarily the determining factor in how well governments provide for their children’s basic needs and wellbeing”.356 Instead what is crucial is that the state budgets are used in such a way that the rights and wellbeing of the children can be carried out, and that the political commitments of the governments “MUST be backed up with budgetary resources”.357 To conduct the study the African Child Policy Forum put together “the Child-friendliness Index”, an index with over 40 indicators, and it was used to score and rank the African governments, examining child protection through law and policies implemented, through budgetary commitments for spending on health, education and the military, and examining the actual outcomes with regards to services accessed and eventual positive results “reflected on the children themselves”.358 Among the least child-friendly countries were Chad, Liberia, the Central African Republic and Eritrea, among the less child-friendly countries were Angola, Côte d’Ivoire, Sudan, Sierra Leone and Ethiopia, among the fairly childfriendly countries were Uganda, Nigeria, Mozambique, Ghana and DRC, among the child-friendly countries were Rwanda and Burundi, and among the most child-friendly countries were Kenya, South Africa and Malawi.359 It was found that Malawi, Kenya, Rwanda and Burkina Faso despite “relatively low GDPs” 354 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 91. 355 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 92. 356 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 92. 357 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 92. 358 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 6. 359 Table 5.1: Child-friendliness Index values and ranking of African governments, The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 82

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

had still been able to have their children’s basic needs and well-being met, while Angola and Equatorial Guinea “with high GDPs” did not adequately invest in their children.360 Many African countries have made much progress and have worked or are working to making their national laws in line with the UNCRC and the ACRWC and other international instruments that relate to children, as well as “Africanising the law on children; reconciling universal values embedded in international instruments with African customs, attitudes and practices; and implementing the socio-economic rights of children even in wider contexts of poverty and scarce resources”.361 But at the time of the African Child Policy Forum’s report in 2008, Botswana, Kenya, Zambia, Ethiopia, Cameroon, CAR, Côte d’Ivoire, Sierra Leone had as the age of criminal responsibility eight to ten years, and Egypt, Gambia, Lesotho, Malawi, Namibia, Seychelles, South Africa, Sudan, Swaziland and Zimbabwe had seven years as the minimum age for criminal responsibility.362 Further harmful traditional practices were not banned in law in over one-fourth of all the countries, and corporal punishment in schools and in the penal systems was still permitted in over half of the countries, and there was no law against trafficking of children in one-third of the countries that participated in the study.363 According to the African Child Policy Forum there are six major child related problems that most African countries are dealing with and they include that: “Too many children die from avoidable diseases; A large number of children, especially girls, are denied education [one-third of the children in sub-Saharan Africa of primary school age are not in school];… a huge and growing orphan population [DRC has about 4.2 million orphans, Ethiopia 4.8 million and Nigeria 8.6 million], and the emerging problem of child-headed households; The unacknowledged but ubiquitous phenomenon of violence against children; A hidden but very large population of children with disabilities [in a number of countries in Africa of the children aged between two and nine years about one-third are disabled]; and Inadequate protection for children, arising in part from the incom360 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 92 361 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 89 362 Table 3.1: Countries where the minimum age of criminal responsibility is below 12 years, The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www. African childforum.org/africanreport2008, p. 48 363 The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 95

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patibility between national laws and international legal standards.”364 Therefore the African Child Policy Forum argues that in order to address these problems “access to public health and related services” needs to be improved which would include that the part of the budget for public health be increased to 20 per cent of the GDP, that the part of budget for education be increased to 13 per cent of the GDP, and that the situation of the many orphans needs to be addressed of which most become orphaned because of their parents dying from HIV/AIDS and therefore ART (antiretroviral drugs) need to become available as “the best form of protection is to have their parents around for as long as possible”, that “a policy of zero tolerance for violence against children” be adopted which would include banning corporal punishment in law, and having early marriage and female genital cutting criminalized, establishing legal and socio-economic policies and programmes to protect vulnerable children including children with disabilities, and continue “harmonising national laws with international law and strengthening enforcement”.365

364 Box 6.2 Six major issues and action points, The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 90, 98 365 Box 6.2 Six major issues and action points, The African Child Policy Forum, The African Child Report on Child Wellbeing 2008, How Child-Friendly are African Governments?, 2008 Addis Ababa, www.African childforum.org/africanreport2008, p. 96, 97, 98

2.

Public Health and Armed Conflict

The Millennium Development Goals on maternal and child death have as a target for reducing the child mortality rate to reduce by two-thirds, between 1990 and 2015, the under-five mortality rate (the Millennium Development Goal 4, A), and as the Millennium Development Goal 5 on improving maternal health, to reduce by three-quarters, between 1990 and 2015, the maternal mortality ratio (the Millennium Development Goal 5, A) and to achieve, by 2015, universal access to reproductive health (the Millennium Development Goal 5, B, of which one indicator is Adolescent birth rate 5.4).1 However, the reality is still far from the achievement of these goals as women in the least developed countries have a 300 times higher risk of dying of complications from pregnancy and childbirth compared to women from industrialized countries.2 As UNICEF says “[n]o other mortality rate is so unequal”, and that the majority of the causes of these complications are possible to prevent as 80 per cent of such related deaths need not take place with women having access to basic maternity and health care services.3 With regards to neonatal deaths, a newborn child in the least developed countries has a 14 times higher risk of dying within hers/his first 28 days of life compared to a newborn child in industrialized countries.4 Of all neonatal deaths about three-quarters occur during the first seven days of a child’s life, and it is possible to prevent the majority of these newborns deaths.5

1 2 3 4 5

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 3 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 2 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 2 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 3 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 2

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2.1.

The Right to Health

While the under-five deaths have decreased to 9.2 million in 2007, the rate being in 1990 about 13 million, there has been very limited progress on maternal deaths in most parts of the world and in sub-Saharan Africa the progress is almost “nonexistent”.6 Some of the reasons for this state of affairs are poor administrative, technical and logistical capacity, insufficient financial investment and a shortage of qualified personnel in health care in the developed countries termed lowincome, together with the low position in society of not only women but also children as well as that their human rights are not being respected.7 In this context it is important to keep in mind that the UN Convention on the Rights of the Child (CRC) stipulates in its Article 24 on the right to health of children that first of all:8 1.

States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right to access of such health care services.

Furthermore, the states parties have agreed to pursue the full implementation of this right and “shall” take measures according to Article 24(2): (a) (b) (c)

(d) (e)

6 7 8

To diminish infant and child mortality; To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; To combat disease and malnutrition, including within the framework of primary health care, through inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; To ensure appropriate pre-natal and post-natal health care for mothers; To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 4 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 4 The Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, Article 24

Public Health and Armed Conflict

(f)

3. 4.

To develop preventive health care, guidance for parents and family planning education and services; States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realisation of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.

The right of children to health is also provided by the wider protection as is stipulated in the Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).9 The Universal Declaration of Human Rights stipulates in its Article 25 that: 1.

2.

Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

The International Covenant on Economic, Social and Cultural Rights, which also applies to children and adolescents, in its Article 12 with regards to the right to health, a legally binding provision, states that: 1.

2.

9

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; b) The improvement of all aspects of environmental and industrial hygiene; c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

Universal Declaration on Human Rights, 217(III), General Assembly, Proclamation, 183rd Plenary Meeting, 10 December 1948, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), Adopted for signature, ratification and accession by General Assembly resolution 2200A(XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27

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d)

The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

The UN Committee on Economic, Social and Cultural Rights issued its General Comment No. 14 in 2000 on “the right to the highest attainable standard of health” as provided for in Article 12 of the ICESCR stating that it interprets the right to health as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels.10

In this General Comment the Committee argued that the right to health “is not to be understood as a right to be healthy”, and further that this right “must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health”.11 Acknowledging that the conditions for health have changed many times from the time that the ICESCR was adopted, and that the distribution of resources, gender and HIV/AIDS included issues that now had to be taken into account when defining health in a broader fashion, the Committee in addition stated that “[a] wider definition of health also takes into account such sociallyrelated concerns as violence and armed conflict”.12 With regards to the right to maternal, child and reproductive health in Article 12(2)(a) of the ICESCR the Committee stated in its General Comment No. 14 that this provision “may be understood as requiring measures to improve child 10

11

12

The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 11 The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 8 and 9 The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 10

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and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information”.13 Making reference to Article 24 of the CRC, the Committee further stated that the CRC was linking the goals of this provision “with ensuring access to childfriendly information about preventive and health-promoting behaviour and support to families and communities in implementing these practices”.14 Further with regards to the non-discrimination principle, the Committee stipulated that implementing this principle would require “that girls, as well as boys, have equal access to adequate nutrition, safe environments, and physical as well as mental health services”.15 The Committee also made specific reference to harmful traditional practices and children with disabilities stating that “[t]here is a need to adopt effective and appropriate measures to abolish harmful traditional practices affecting the health of children, particularly girls, including early marriage, female genital mutilation, preferential feeding and care of male children. Children with disabilities should be given the opportunity to enjoy a fulfi lling and decent life and to participate within their community.”16 Making specific mention of adolescents, the Committee stated in its General Comment No. 14 that States parties should provide a safe and supportive environment for adolescents, that ensures the opportunity to participate in decisions affecting their health, to build life-skills, to acquire appropriate information, to receive counselling and to 13

14

15

16

Footnotes omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 14 Footnotes omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 22 Footnotes omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), “The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 22 Footnotes omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 22

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negotiate the health-behaviour choices they make. The realization of the right to health of adolescents is dependent on the development of youth-friendly health care, which respects confidentiality and privacy and includes appropriate sexual and reproductive health services.17

Further, reiterating the best interests of the child principle in the CRC, the Committee stated that this principle “shall be a primary consideration” in every state policy and programme “aimed at guaranteeing the right to health of children and adolescents”.18 It needs to be pointed out that while the Millennium Development Goals (MDGs) did not include “sexual and reproductive health” as a term, subjects concerning sexual and reproductive health are included in the MDGs like maternal health, child health and HIV/AIDS.19 Making reference to resolution 2003/28 where the UN Commission on Human Rights stated that “sexual and reproductive health are integral elements of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Special Rapporteur) has meant that this statement served as a confirmation that the MDGs would include these subjects related to sexual and reproductive health.20 Further as the Special Rapporteur has made note of, the UN Secretary-General in his report “Road-map towards the implementation of the United Nations Millennium Declaration” specifically stated that “[e]conomic, social and cultural rights are at the heart of all the millennium development goals related to poverty reduction, hunger alleviation, access to water, education for boys and girls, the reduction of maternal and under-five

17

18

19

20

The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 23 The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 24 United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, para. 30 United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, para. 30

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child mortality, combating HIV/AIDS and other major diseases, and promoting gender equality and the empowerment of women”.21 Article 2 of the ICESCR states the obligations which are legally binding on the states parties with regards to the economic, social and cultural rights including the right to health, and the principles of progressive realization and to the maximum of available resources have here been established: 1.

2.

3.

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

With regards to the obligations of the states parties the Committee in its General Comment No. 14 has further stipulated that “[w]hile the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect”, and that the “immediate obligations” of the states parties include “the guarantee that the right [to health] will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12” and that these steps “must be deliberate, concrete and targeted towards the full realization of the right to health”.22 Further the Committee stated that “progressive realization means that States parties have

21

22

United Nations, General Assembly, Road map towards the implementation of the United Nations Millennium Declaration, Report of the Secretary-General, A/56/326, 6 September 2001, para. 202, and United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, para. 6 Footnote omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 30

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a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12”.23 Concerning which kinds of obligations as well as the levels of such obligations the right to health puts on a state party, the Committee stated in its General Comment No. 14 that these obligations entail “to respect, protect and fulfil” and that [t]he obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to make measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.24

Referring to its General Comment No. 3 with regards to the “core obligations” of a state party, the Committee stated that one such obligation is “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care”.25 Among the several core obligations the Committee listed in its General Comment No. 14 some include to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups (para. 43 (a)), to ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone (para. 43 (b)), to ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water (para. 43 (c)), and to ensure reproductive, maternal (pre-natal as well as post-natal) and child health care (para. 44 (a)) and to provide immunization against the major infectious diseases occurring in the community (para. 44 (b)).

23

24

25

Footnote omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 31 Footnote omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 33 Footnote omitted, The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 43

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In terms of how to decide whether the right to health has been violated by an action or an omission, the Committee stated in its General Comment No. 14 that “it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations under article 12” and that “[t]his follows from article 12.1, which speaks of the highest attainable standard of health, as well as from article 2.1 of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources”.26 The Committee firmly stipulated that [a] State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource constraints render it impossible for a State to comply with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations set out in paragraph 43 above, which are non-derogable.27

The Committee further stated that “[n]ational health strategies should identify appropriate right to health indicators and benchmarks”, and that “[i]n the following five years, the State party will use these national benchmarks to help monitor its implementation of article 12. Thereafter, in the subsequent reporting process, the State party and the Committee will consider whether or not the benchmarks have been achieved, and the reasons for any difficulties that may have been encountered.”28 The position of an UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health was established in 2002 in resolution 2002/31 by the UN Commission on Human Rights for three years, and the Rapporteur’s mandate was also further extended in 2007 26

27

28

The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 47 The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 47 The UN Committee on Economic, Social and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The right to the highest asstainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August, 2000, para. 57 and 58

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by resolution 6/29 when the Human Rights Council had been established.29 In resolution 2002/31 the Special Rapporteur was “invited” by the UN Commission on Human Rights “to apply a gender perspective in her or his work and to pay special attention to the needs of children in the realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.30 The Human Rights Council also “encourages” the Special Rapporteur “[t]o continue to apply a gender perspective in her/his work and to pay special attention to the needs of children and other vulnerable and marginalized groups in the realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.31 In a statement issued on the World Health Day in 2003 by Paul Hunt, the then Special Rapporteur, on the “Healthy Environments for Children,” he emphasized that the right to health “is also a right to the underlying determinants of health, including food and nutrition, housing, access to safe drinking water and adequate sanitation, and a healthy environment”.32 He wanted to make states parties remember that they have obligations to fulfil in creating healthy environments for children, and stated that “[h]ome, school and local community environments frequently harbour dangers that threaten children’s lives and inhibit their healthy physical, mental and social development”, and that “[p]overty, conflict and natural disasters create particular

29

30

31 32

Office of the High Commissioner for Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Commission on Human Rights resolution 2002/31, 49th meeting, 22 April 2002, para. 4: The Commission on Human Rights “Decides to appoint, for a period of three years, a special rapporteur whose mandate will focus on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, as reflected in article 25, paragraph 1, of the Universal Declaration of Human Rights, article 12 of the International Covenant on Economic, Social and Cultural Rights, article 24 of the Convention on the Rights of the Child and article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, as well as on the right to non-discrimination as reflected in article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination;” Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Introduction, and Human Rights Council Resolution 6/29, 14 December 2007; Mr. Anand Grover from India who was appointed in 2008 is the current Special Rapporteur; http://www.ohchr.org/EN/Issues/health/Pages/SRRightHealthIndex.aspx, p. 2 of 3, 6/25/2012 Office of the High Commissioner for Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Commission on Human Rights resolution 2002/31, 49th meeting, 22 April 2002, para. 7 Human Rights Council Resolution 6/29, 14 December 2007, para. 2(d) Statement by Paul Hunt, Special Rapporteur on the enjoyment of the highest attainable standard of physical and mental health, “Healthy Environments for Children”, World Health Day, 7 April 2003

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difficulties for sustaining healthy environments for children”.33 He expressed his specific concern for children in armed conflict, stating that “[i]n addition to the destruction of infrastructure vital for health, the use of weapons such as cluster bombs creates a deadly environment and endangers the lives and health of children”.34 The Special Rapporteur specifically stipulated that “[l]ike landmines, cluster bombs constitute a violation of the right to health of those civilians who are caught up in armed conflict – and like landmines, they should be banned”.35 It was noted by the Special Rapporteur in 2003 in a preliminary report to the Commission on Human Rights that the use of indicators and benchmarks by a state were required in order for “the progressive realization of the right to health” to be able to be monitored.36 In the Special Rapporteur’s first report to the General Assembly in 2003 he introduced “a methodology for the use of indicators in relation to the right to health”, a methodology which was in his report to the General Assembly in 2004 applied “experimentally” to child survival as a “vital element of the right to health” of children since he had been asked to pay special attention to children in resolution 2002/31.37 These indicators included structural indicators such as Basic Legal Context with questions like “Has the State constitutionalized the right to health, including children’s right to health?” and “Has the State passed other legislation that expressly recognizes the right to health, including children’s right to health?”, with the corresponding human rights provisions of Articles 2(1) and 12 of the ICESCR and Articles 4, 6(2) and 24 of the CRC.38 Further included were Process Indicators with indicators such as Infant Feeding and a question such as the “Proportion of infants less than 12 months of age who were put to the breast within one hour of delivery” with the corresponding human rights provisions of Article 12(2)(a) and (c) of the ICESCR, 33

34

35

36

37

38

Statement by Paul Hunt, Special Rapporteur on the enjoyment of the highest attainable standard of physical and mental health, “Healthy Environments for Children”, World Health Day, 7 April 2003 Statement by Paul Hunt, Special Rapporteur on the enjoyment of the highest attainable standard of physical and mental health, “Healthy Environments for Children”, World Health Day, 7 April 2003 Statement by Paul Hunt, Special Rapporteur on the enjoyment of the highest attainable standard of physical and mental health, “Healthy Environments for Children”, World Health Day, 7 April 2003 E/CN.4/2003/58, Preliminary report, and United Nations General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October, 2004, Summary, p. 2 A/58/427, First interim report, and United Nations General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October, 2004, Summary, p. 2 and para. 62 United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, Indicators for the right to health and child survival, Structural Indicators, para. 1 and 2, p. 17

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Articles 6(2), 24(20(a), (c), (d) and (e) of the CRC, and Articles 11(2) and 12 of the CEDAW.39 Finally Outcome Indicators were applied with questions like the “Proportion of low-birth-weight live births (below 2500 grams)” and “Under-five mortality rate (probability of dying between birth and five years per 1000 live births)” and with the corresponding human rights provisions of Articles 11 and 12(2)(a) of the ICESCR and Articles 6, 6(2), 24(2)(a)(c)(e) and 27(3) of the CRC.40 In the African context the African Charter on the Rights and Welfare of the Child provides in its Article 14 a very comprehensive right to health and health services:41 1. 2.

39

40

41

Every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health. States Parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures: (a) to reduce infant and child mortality rate; (b )to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) to ensure the provision of adequate nutrition and safe drinking water; (d) to combat disease and malnutrition within the framework of primary health care through the application of appropriate technology; (e) to ensure appropriate health care for expectant and nursing mothers; (f) to develop preventive health care and family life education and provision of service; (g) to integrate basic health service programmes in national development plans; (h) to ensure that all sectors of the society, in particular, parents, children, community leaders and community workers are informed and supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of domestic and other accidents; (i) to ensure the meaningful participation of non-governmental organizations, local communities and the beneficiary population in the planning and management of a basic service programme for children;

United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, Indicators for the right to health and child survival, Process Indicators, para. 19, p. 22 United Nations, General Assembly, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/59/422, 8 October 2004, Indicators for the right to health and child survival, Outcome Indicators, para. 39 and 41, p. 25 African Charter of the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999, Article 14

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(j)

to support through technical and fi nancial means, the mobilization of local community resources in the development of primary health care for children.

In addition, the states parties to the African Children’s Charter have also committed in its Article 1(2)(h) on education that education includes promoting the child’s understanding of primary health care. The African Charter in this Article 14 gives wider protection than the CRC does with regards to children’s right to health in two aspects, as firstly it is the first instrument in which states are obliged to allocate resources for the realization of the right to health of children, as according to Article 14(g) the states parties are under the obligation to “integrate basic health service programmes in national development plans”.42 Furthermore, the CRC does not oblige states as the African Charter does to include NGOs, local communities and the affected population itself when planning and managing a basic health service programme for children, or to allocate technical and financial support so that local community resources become part of developing children’s primary health care.43 As Chirwa argues by engaging the population itself in this way makes the Charter “one of the few instruments that expressly call for the participation of the populace in issues affecting their lives”.44 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, provides in its Article 10 the right to health:45 1. 2.

42

43

44

45

Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right: a. Primary health care, that is, essential health care made available to all individuals and families in the community;

Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 164 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 164 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 164 Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights “Protocol of San Salvador”, adopted in San Salvador 11/17/88, entered into force 11/16/99, Article 10

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b. c. d. e. f.

Extension of the benefits of health services to all individuals subject to the State’s jurisdiction; Universal immunization against the principal infectious diseases; Prevention and treatment of endemic, occupational and other diseases; Education of the population on the prevention and treatment of health problems, and Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them most vulnerable.

The Additional Protocol also provides for the Right to a Healthy Environment in its Article 11, and stipulates in paragraph 1 that “[e]veryone shall have the right to live in a healthy environment and to have access to basic public services”. Since for instance lack of sanitary services and lack of or insufficient sewage systems are some of the main causes of some illnesses, this is a very important provision. This also needs to be seen in the context that many in the region live in shanty towns and in extreme poverty under very unsanitary conditions and with much garbage. However, while the Additional Protocol affords a right to a healthy environment onto everyone, the states parties to the Protocol still are only under the obligation “shall promote” that the environment is protected, preserved and improved, Article 11(2): “The States Parties shall promote the protection, preservation, and improvement of the environment.” 2.2.

Maternal and Newborn Health

Another issue is that there is a higher risk for a newborn baby to die within the first two years of its life if the mother has died within the first six weeks of the baby’s life, compared to if a child’s mother survives childbirth.46 For instance, it has been shown in Afghanistan that 74 per cent of the children who were born alive “to mothers who died of maternal causes” died too.47 In addition, there is an increased risk of neonatal deaths from maternal complications during labour, and this is now being concentrated on in order to improve the number of children who survive child birth in the context of that in developing countries the under-five mortality rates have been falling.48 In 2005 over 99 per cent of all maternal deaths worldwide took place in the developing countries, and about 50 per cent of these, 265,000, occurred in sub-

46 47 48

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 5 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 5 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 5

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Saharan Africa and a third, 187,000, in South Asia.49 As a result, 85 per cent of all maternal deaths worldwide took place in sub-Saharan Africa and South Asia, of which India accounted for 22 per cent of such deaths worldwide. Sierra Leone has had the highest rate of maternal deaths worldwide with 2,100 maternal deaths per 100,000 live births, and Afghanistan the second highest rate with 1,800 deaths per 100,000 live births.50 West and Central Africa, which Sierra Leone is part of, has a maternal mortality rate of 1,100 per 100,000 live births, while the average rate for developing countries and territories is 450 per 100,000 live births. In addition in 2007 the West and Central African region had the “highest total fertility rate” with 5.5 children.51 There are huge difference of the number of maternal deaths in Afghanistan across regions, where in Kabul of all deaths of women of childbearing age 16 per cent constitute maternal deaths and in the rural Ragh district of Badakhshan 64 per cent constitute maternal deaths.52 There are both direct and indirect causes of maternal deaths of which most are both highly treatable and preventable. One indirect cause is anaemia which especially adolescent girls who are pregnant suffer from, however these girls are often neglected and as a result do not get sufficient care.53 In Afghanistan sociocultural issues such as women needing to get the permission or having male relatives escorting them to move around outside of the home, and women’s and girls’ low status in the society are all causes of higher risks of maternal deaths.54 Another issue is that women culturally prefer to go to women health care providers, in a context where there are very few qualified women health providers available. In Afghanistan there is a need for an estimated 4,546 midwives for 90 per cent of all pregnancies in the country and the introduction of a skills-based programme for increasing the number of midwives, the Community Midwifery Education (CME) programme, has been very successful resulting in having 2,167 midwives by 2008 while the country had 467 in 2002.55 A further issue is HIV/AIDS and its impact on maternal health, as there are indicators that in countries with a high number of HIV infections, improve49 50 51 52 53 54 55

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 6 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 6 and 60 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 6 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 60 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 10 UNICEF ,Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 60 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 60

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ments in maternal mortality rates have been overturned by HIV/AIDS.56 To remedy this situation in particular four areas within maternal and newborn health have been identified as priority areas for interventions and these are: “prevention of infection among adolescents and young people; antiretroviral treatment for HIV-positive women and mothers who require antiretroviral therapy; prevention of mother-to-child transmission and pediatric treatment of HIV”.57 Low birth-weight is a problem especially in South Asia and in sub-Saharan Africa, where also the rates of undernutrition of girls and women are the highest.58 Low birth-weight and maternal undernutrition and ill health are correlated, and in order to achieve an intergenerational solution to undernutrition and ill health that are linked to intrauterine growth restriction, also action on the rights of women and their realization need to be recognized in order to find a solution to these problems.59 This would also require action on the rights of children. UNICEF points at some underlying causes to the prevalence of the high rates of maternal and newborn mortality such as “lack of education and knowledge, inadequate maternal and newborn health practices and care seeking, insufficient access to nutritious food and essential micronutrients, poor environmental health facilities and inadequate basic health-care services and limited access to maternity services - including emergency obstetric and newborn care”.60 Those countries that have the fewest qualified attendants at birth and the fewest institutional deliveries, also have most of the neonatal mortality cases in the world.61 Further causes like “poverty, social exclusion and gender discrimination” also have consequences for maternal and newborn health.62 However, another basic cause is the lack of attention to and respect of the human rights of children and their place in the family and society which makes them utterly vulnerable. In some situations cultural, social and familial obstacles prevent women and girls from enjoying various products and services, even if better health care services

56 57 58 59 60 61 62

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 12 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 12 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 14 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 14 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 15 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 15 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 15

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for instance have been developed and are being expanded and therefore it is important to note that these efforts might not be enough.63 An estimated 70,000 maternal deaths per year linked to pregnancy and childbirth concern girls between 15 and 19 years of age.64 Girls under 15 years of age have a five times higher risk of dying in childbirth compared to women over 20 years of age. There is a 60 per cent higher risk for an infant born to a girl younger than 18 years of age to die compared to a mother who is over 19 years of age, and furthermore, those children that do survive childbirth have a higher risk of having “low birthweight, undernutrition and late physical and cognitive development”.65 In this context research consistently shows that education often leads to that young women delay marriage, that they immunize their children, that the importance of nutrition is understood, and that they have longer birth spacing periods.66 On the other hand, there is a higher drop-out rate from school for adolescent girls entering into child marriages, which perpetuates the “cycle of gender discrimination” since poverty is one reason why a family lets their daughter marry at a very early age.67 In UNICEF’s “The State of the World’s Children 2007: The double dividend of gender equality”, of the women interviewed about their health care over one-third from sub-Saharan Africa, South Asia, the Middle East and North Africa responded that it was only their husbands making all such health related decisions and not the women.68 Child marriage is most common in South Asia, West and Central Africa and sub-Saharan Africa, where in South Asia 49 per cent of all women between 20 and 24 years of age “were married or in union before they were 18 years old” a survey covering the period 1998–2007 showed, the percentage for West and Central Africa was 44 per cent, and for subSaharan Africa 40 per cent for the same time period.69 UNICEF explains that because of “distance, migration, urbanization, armed conflict, disease and lack of investment in public health” there is a huge lack of qualified health care workers, and this is especially the case in sub-Saharan

63 64 65 66 67 68 69

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 16 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 32 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 32 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 32 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 33 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 37 and Figure 2.8, p. 40 Figure 2.4 in UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 34

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Africa.70 In the context of fragile states, there needs to be special attention given to women and newborns as 35 per cent of all the maternal deaths and 21 per cent of the neonatal deaths in the world occur in these fragile states.71 For instance in Sierra Leone there have been only two hospitals that provide mental health care and only one practicing psychiatrist in the whole country, while the hospitals are poorly equipped, understaffed and receive very little support.72 As the Sierra Leonean Human Rights Commission states that “they are also wholly insufficient to meet the mental health needs of a nation emerging from a traumatic civil war.”73 In Sierra Leone in the whole country with a population of about 5 million there were in 2008 about 162 qualified medical doctors, and about 114 medical doctors who worked for the government.74 Poor pay and conditions for medical personnel, migration of medical personnel, lack of equipment, lack of medical personnel, high cost of medical services, a general lack of drugs and medication, lack of transportation and lack of accessibility all contribute to that Sierra Leone has have the highest infant and maternal mortality rate in the world.75 To deliver health care in war zones is very dangerous and difficult which the situation in Afghanistan shows where aid organizations have at times not been able to provide medical care to people in the provinces, like for instance the Christian Aid group International Assistance Mission which manages the National Organization for Ophthalmic Rehabilitation eye care project (for around 180,000 in 2009 alone) and which has provided eye care since more than 40 years in Afghanistan and that was not able to work outside of Kabul in the 1980s because of the violence during the occupation by Soviet Union.76 After the occupation with the then mujahedin government in power the aid group had to in Kabul negotiate safe passage with different warring factions for their medical teams who lived in different parts of the city to be able to come to their work at 70 71 72 73 74

75 76

UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 18 UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 18 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 51 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 51 Amnesty International and the Sierra Leonean Ministry of Health and Sanitation (MoHS), Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 45 Human Rights Commission of Sierra Leone (HRCSL), The State of Human Rights in Sierra Leone 2008, p. 45 All information in this section comes from Partlow, J., Devastated Christian aid group pledges to continue work in Afghanistan, Washington Post, August 9, 2010, A01

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the eye clinic. When the Taliban came to power, the clinic’s female staff were forbidden to work together with the male staff. In August 2010 ten members of their medical team that was providing eye care to people in northern Afghanistan were killed by the Taliban who claimed responsibility for having killed them while accusing them of being foreign spies and trying to convert people to Christianity. 2.2.1.

The Fifth Millennium Development Goal

The Fift h Millennium Development Goal, the MDG 5, to improve maternal health, “has made the least amount of progress and is the most underfunded of all the health related MDGs”.77 The Target A of Millennium Development Goal (MDG) 5 was set to achieve a 75 per cent reduction in the maternal mortality ratio between 1990 and 2015, and in order to be able to meet that target between 2005 and 2015 there needs to be a 70 per cent reduction of maternal deaths.78 United Nations Population Fund (UNFPA) reports that it has been estimated that a woman dies in pregnancy or childbirth every minute in the world, of which 99 per cent are residing in the developing countries. Africa and South Asia continue to be the regions where “complications during pregnancy and childbirth remain the most frequent cause of death for women”, and maternal deaths are even on the rise in certain countries caused primarily by haemorrhage, infections, unsafe abortions, high blood pressure leading to seizures and obstructed labour.79 In addition it is estimated that about 10–15 million women because of pregnancies and childbirth get illnesses and complications such as obstetric fistula, infertility and depression.80 This needs to be seen in the context that few women have access to skilled labour at delivery, in the less developed countries about 57 per cent of women have such access, in the least developed countries about 34 per cent, and in developing countries about 35 per cent of women who are pregnant will not see any health care personnel before giving birth, and that 70 per cent of women in sub-Saharan Africa do not see such personnel even after having given birth.81 UNFPA explains that the highest risk of death is “during labour and the two days following a birth”, and that it is the poor women who face the highest risk of dying during pregnancies, labour and following birth as they do not have 77

78 79 80 81

UNFPA, Giving birth should not be a matter of life and death, accessed June 16, 2010, www.unfpa.org: In order to achieve the MDG 5 by 2015, an additional funding of about US$5.5 billion to $6.1 billion will be needed. UNICEF, The state of the world’s children, 2009, p. 6; the latest estimates on maternal deaths are from 2005. UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org

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much money to go see health personnel and/or many times lack access to a health care facility due to long distance and cannot pay for the transportation.82 UNFPA defines maternal mortality as:83 Maternal mortality is defined as the death of a woman while pregnant or within 42 days after termination of pregnancy from any cause related to or aggravated by the pregnancy or its management. Th is includes death as a complication of abortion at any stage of pregnancy.

Adolescent girls face particular risks with early pregnancies, and the UNFPA has identified the most significant risks:84 – – – – –

Girls aged 15-20 are estimated to be twice as likely to die in childbirth as those in their twenties. Girls under the age of 15 are five times more likely to die from maternal causes. Girls aged 15–19 account for one in four unsafe abortions-an estimated five million each year. Complications during pregnancy or childbearing are the leading cause of death for girls aged 15–19 in developing countries. Less than 20 per cent of all sexually active young people in Africa use contraception.

Furthermore, UNFPA underscores the need to improve and ensure the human rights for women as “early marriage, female genital mutilation/ cutting, unwanted childbirths and violence constitute violations of a woman’s right to make decisions regarding her own body”.85 The MDG Goal 1 on eradicating extreme poverty and hunger is a persistent challenge all over Africa except in Northern Africa, and poverty is especially common in rural areas, politically marginalized areas, areas in countries in armed conflict or countries recovering from armed conflicts, in hostile ecosystems and in landlocked countries.86 The prevalence of underweight under-five year old children is one of the indicators toward assessing the achievement of 82 83 84 85 86

UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org UNFPA, Giving birth should not be a matter of life and death, accessed June 16, 2010, www.unfpa.org UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org UNFPA, No woman should die giving life, Facts and Figures 1, accessed June 16, 2010, www.unfpa.org ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 5, www.uneca. org/acgd/Publications/MDGR2009.pdf

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this goal, which in the African region has been declining since 2000 in countries which have been “under significant political and military stress”.87 Therefore it is not likely that the African countries, with a few exceptions, will be able “to reduce the number of children under five years of age who are underweight by 2015”.88 The African countries, with a few exceptions are unlikely to achieve the MDG Goal 4 to reduce child mortality, with a target of reducing the under-five mortality rate by two-thirds by 2015.89 While HIV/AIDS, undernourishment and malaria are some of the main causes for these deaths, armed conflict is one of the main reasons for the very high under-five mortality rate that certain countries display, “about 200 and above per 1.000 live births in 2005”, of which the majority had in the past 10–15 years “experienced at least one major armed conflict”.90 Nevertheless immunization against for instance measles has significantly improved all over the region with 95 per cent of all one-year olds in Rwanda and 73 per cent of all one-year olds in DRC having been immunized by 2006.91 However, in the Central African Republic and Somalia the coverage rate was only 35 per cent. As a consequence of armed conflict and political instability several African countries have seen an increase in the number of their slum populations in urban areas between 1999 and 2005.92 Countries such as Zimbabwe, Comoros, DRC, Angola, the Central African Republic (CAR), Sudan and Sierra Leone have all had an increase in the number of people who live in slums. Especially DRC has seen a significant increase of its slum population from 2001 when it had decreased a bit since 1999 (in 1999 and 2001, the DRC had a much lesser slum population in urban areas than Kenya did, which has changed), while Angola, CAR, Sudan and

87

88

89

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ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 10, www.uneca. org/acgd/Publications/MDGR2009.pdf ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 11, www.uneca. org/acgd/Publications/MDGR2009.pdf ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 22, www.uneca. org/acgd/Publications/MDGR2009.pdf ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 22, www.uneca. org/acgd/Publications/MDGR2009.pdf Table 5, ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 26, www.uneca.org/acgd/Publications/MDGR2009.pdf Updated July 2008, Table 20, ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 46 www.uneca.org/acgd/Publications/MDGR2009.pdf

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Sierra Leone already had very high numbers of people living in slums since 1999 with some decreases in Angola, CAR and the Sudan, the number is increasing.93 The Eight Millennium Development Goals to be implemented by 2015 are to eradicate extreme poverty and hunger (Goal 1), to achieve universal primary education (Goal 2), to promote gender equality and empower women (Goal 3), to reduce child mortality (Goal 4), to improve maternal health (Goal 5), to combat HIV/AIDS, malaria and other diseases (Goal 6), to ensure environmental sustainability (Goal 7) and to develop a global partnership for development (Goal 8).94 The Afghan government has in addition taken on a ninth development goal which is “enhance security”, as a result of that the Afghan people consider “lack of security” to be the most important concern and the acknowledgement that to be able to achieve the other millennium development goals peace and security are preconditions and need to be improved.95 2.3.

Adolescent Health and Development

The CRC Committee issued a General Comment on adolescent health and development in 2003 as it acknowledged that the rights of adolescents in the context of their health and development were not adequately ensured by the states parties to the CRC as they did not pay enough attention to this issue.96 The Committee stated that its standpoint on “health and development” needed to be seen in a wider perspective than just referring to Article 6 (right to life, survival and development) and Article 24 (right to health), and that the whole Convention, as well as the two Optional Protocols on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, should be taken into account when considering this Comment.97 In addition “other relevant international human rights norms and standards” should also be taken into account, such as the ICCPR and ICESCR. As such the Committee embraced a holistic approach as it stated that one of the objectives behind this comment was “to identify the main human rights that need to be promoted and protected in order to ensure that adolescents do enjoy the highest attainable standard of health, de93

94

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Updated July 2008, Table 20, ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, p. 46 www.uneca.org/acgd/Publications/MDGR2009.pdf ECA/CEA, AU and African Development Bank Group, Assessing Progress in Africa toward the Millennium Development Goals, MDG Report 2009, Annex 1, www. uneca.org/acgd/Publications/MDGR2009.pdf UNDP, Millennium Development Goals in Afghanistan, www.undp.org.af/MDGs/ index.htm, accessed June 15, 2010 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 3 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 4

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velop in a well-balanced manner, and are adequately prepared to enter adulthood and assume a constructive role in their communities and in society at large”.98 The Committee stated in its Comment No. 4 that also in the context of armed conflict the states parties are obliged to protect and pay attention to the particular situation for adolescents:99 States parties must take effective measures to ensure that adolescents are protected from all forms of violence, abuse, neglect and exploitation (arts. 19, 32–36 and 38), paying increased attention to the specific forms of abuse, neglect, violence and exploitation that affects this age group. In particular, they should adopt special measures to ensure the physical, sexual and mental integrity of adolescents with disabilities, who are particularly vulnerable to abuse and neglect. States parties should also ensure that adolescents affected by poverty who are socially marginalized are not criminalized.

The Committee stressed the importance that states parties engage in systematic data collection of the health and development of adolescents and that in particular data collection of ethnic and/or indigenous minorities, migrant or refugee adolescents, adolescents with disabilities and working adolescents should be carried out in order to identify the specific challenges facing the adolescents and thus be able to address them.100 The CRC Committee stressed that “both individual behaviours and environmental factors” need to be considered when the adolescents’ right to health and development is to be ensured, and that armed conflict and social exclusion are environmental factors that “increase the vulnerability of adolescents to abuse, other forms of violence and exploitation”.101 The CRC Committee stresses that “adolescents experiencing poverty, armed conflicts, all forms of injustice, family breakdown, political, social and economic instability and all types of migration may be particularly vulnerable. These situations might seriously hamper their health and development.”102 In this context the Committee further states that “[b]y investing heavily in preventive policies and measures States Parties can drastically reduce levels of vulnerability and risk factors; they will also provide 98

Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 4: the Convention on the Elimination of All Forms of Discrimination Against Women was also referred to, footnote 1 99 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 12 100 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 13 101 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 34 102 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 38

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cost-effective ways for society to help adolescents develop harmoniously in a free society”.103 Here the Committee acknowledged that armed conflict has a specific impact on adolescents and acknowledged their vulnerability, as well as providing for what the states parties need to do to remedy the situation. Subsequently in the Comment the states parties are called upon by the CRC Committee to adopt legislation, policies and programmes promoting the health and development of adolescents by:104 (a)

(b)

(c) (d)

(e)

providing parents (or legal guardians) with appropriate assistance through the development of institutions, facilities, and services that adequately support the well-being of adolescents, including, when needed, the provision of material assistance and support with regard to nutrition, clothing and housing (art. 27 (3)); providing adequate information and parental support to facilitate the development of a relationship of trust and confidence in which issues regarding, for example, sexuality and sexual behavior and risky lifestyles can be openly discussed and acceptable solutions found that respect the adolescent’s rights (art. 27 (3)); providing adolescent mothers and fathers with support and guidance for both their own and their children’s well-being (art. 24 (f), 27 (2–3)); giving, while respecting the values and norms of ethnic and other minorities, special attention, guidance and support to adolescents and parents (or legal guardians), whose traditions and norms may differ from those in the society where they live; and ensuring that interventions in the family to protect the adolescent and, when necessary, separate her/him from the family, e.g. in case of abuse or neglect, are in accordance with applicable laws and procedures. Such laws and procedures should be reviewed to ensure that they conform to the principles of the Convention.

Acknowledging adolescents right to mental health, which is also to be seen in the context of armed conflict, the Committee stated that the states parties have an obligation to provide adolescents with mental health challenges treatment and rehabilitation. The CRC Committee urges the states parties that they are: 105 to provide adequate treatment and rehabilitation for adolescents with mental disorders, to make the community aware of early signs and symptoms and the serious103 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 38 104 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 16 105 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 29

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ness of these conditions, and to protect adolescents from undue pressures, including psychological stress. States parties are also urged to combat discrimination and stigma surrounding mental disorders, in line with their obligations under article 2.

As part of states parties being able to provide for that the right to health and development of adolescents with disabilities are ensured, the CRC Committee makes reference to Article 23(3) of the CRC with regards to education stating that:106 the special rights of adolescents with disabilities should be taken into account and assistance provided to ensure that the disabled child/ adolescent has effective access to and receives good quality education. States should recognize the principle of equal primary, secondary and tertiary educational opportunities for disabled children/ adolescents, where possible in regular schools.

Recognizing that harmful traditional practices affect the rights of adolescents to health and development, the CRC Committee stresses in its General Comment No. 4 the obligations of states parties according to the CRC:107 To protect adolescents from all harmful traditional practices, such as early marriages, honour killings and female genital mutilation.

The Committee acknowledges that honour killings, early marriages and female genital mutilation affect adolescent’s rights to health and development and referring to Articles 3, 6, 12, 19 and 24(3) of the CRC states that the states parties are obligated to address the health challenges of the adolescents in this regard in the following manner:108 States parties should take all effective measures to eliminate all acts and activities which threaten the right to life of adolescents, including honour killings. The Committee strongly urges States parties to develop and implement awareness-raising campaigns, education programmes and legislation aimed at changing prevailing attitudes, and address gender roles and stereotypes that contribute to harmful traditional practices. Further, States parties should facilitate the establishment of multidisciplinary information and advice centres regarding harmful aspects of some traditional practices, including early marriage and female genital mutilation.

106 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 19 107 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 39 (g) 108 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 24

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With regards to the health challenges associated with early marriages and pregnancy the Committee expresses its concerns and stipulates that:109 early marriage and pregnancy are significant factors in health problems related to sexual and reproductive health, including HIV/AIDS. Both the legal minimum age and actual age of marriage, particularly for girls, are still very low in several States parties. There are also non-health-related concerns: children who marry, especially girls, are often obliged to leave the education system and are marginalized from social activities. Further, in some States parties married children are legally considered adults, even if they are under 18, depriving them of all the special protection measures they are entitled under the Convention. The Committee strongly recommends that States parties review and, where necessary, reform their legislation and practice to increase the minimum age for marriage with and without parental consent to 18 years, for both girls and boys. The Committee on the Elimination of Discrimination against Women has made a similar recommendation (general comment No. 21 of 1994).

The CRC Committee states in its Comment No. 4 that adolescent girls have the right to have access to information important for their health and development regarding early marriage and early pregnancies and with regard to health services stipulates that:110 Adolescent girls should have access to information on the harm that early marriage and early pregnancy can cause, and those who become pregnant should have access to health services that are sensitive to their rights and particular needs. States parties should take measures to reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents. Young mothers, especially where support is lacking, may be prone to depression and anxiety, compromising their ability to care for their child. The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, including family planning, contraception and safe abortion services where abortion is not against the law, adequate and comprehensive obstetric care and counselling; (b) to foster positive and supportive attitudes towards adolescent parenthood for their mothers and fathers; and (c) to develop policies that will allow adolescent mothers to continue their education.

109 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 20 110 Committee on the Rights of the Child, General Comment No. 4 (2003), CRC/ GC/2003/4, 1 July 2003, para. 31

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It would be helpful if also adolescent boys be given information on the physical and mental harm that early marriage and early pregnancies have on girls, as well on what kind of responsibilities they will have as fathers. 2.3.1.

Adolescents Girls in Post-Conflict Liberia

In Liberia after years of war the situation for adolescent girls is especially difficult, where no more than 39 per cent of the girls have enrolled into primary school and 14 per cent in secondary education, and where 24 per cent of the adolescent girls and young women between 15 and 24 years of age are illiterate.111 Furthermore, girls between 10 and 14 years of age are “the most frequent victims of rape” and rape is “the most frequently reported crime”. Among the young women between 15 and 24 years of age 21 per cent know much about HIV/AIDS. The rate of child marriages is high, with 40 per cent of the women between 20–24 years entering into marriage before they turn 18 years of age. Liberia has the world’s second highest adolescent birth rate for girls between 15 and 19 years of age with 221 births per 1,000, with the maternal mortality rate being 1,200 per 100,000 live births. The girls between 10 and 14 years in Liberia have a five times higher risk of dying from pregnancy and childbirth related causes compared to women between 20 and 24 years of age, this in an environment where about 37 per cent of the births occur in institutional settings and merely 51 per cent of the births are attended by a qualified health professional. In Liberia the lifetime risk of maternal deaths is 1 in 12, and about 1 of all 10 newborn infants have not turned one years of age before they die. As Liberia’s Minister of Gender and Development Honourable Vabah Gayflor stated, Liberian adolescent girls “will probably not have support from a partner, even if she is married” and she will have “little or no recourse to protection from further abuse, exploitation and disempowerment”.112 2.3.2.

Adolescents and Children and Health in the Occupied Palestinian Territory

In the Occupied Palestinian Territory (OPT) the adolescents suffer to a great extent from the endless violence that they grow up in and they are an especially vulnerable group. Of all the children killed in 2007 within the OPT, 78 per cent

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Everything in this section on adolescent girls in Liberia comes from The Honourable Vabah Gayflor, Minister of Gender and Development in Liberia, The Challenges faced by adolescent girls in Liberia, in UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 64 The Honourable Vabah Gayflor, Minister of Gender and Development in Liberia, The Challenges faced by adolescent girls in Liberia, in UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 64

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were between 13–17 years of age.113 UNICEF underlines that the relentless violence leads to “extreme emotional duress and feelings of great insecurity” for the adolescents.114 More children are dropping out at the secondary school level because of reasons such as “low learning achievements, poverty and early marriage”.115 Also, within the context of growing up to be responsible adults, the adolescents receive little information about issues such as HIV/AIDS and other current issues of importance. UNICEF says that almost all adolescents know about HIV/AIDS, however 91 per cent do not know how to protect themselves from the disease.116 The health consequences for the children within the OPT are severe especially for the children in Gaza. Ten per cent of the Palestinian children under the age of five suffer from chronic malnutrition, of which 50,000 children live in Gaza.117 The chronic malnutrition affects the intellect of the child, Dr. El-Sarraj explains. He says that because of the malnutrition, 15 per cent of the children of Gaza experience impairments in their intellectual abilities.118 There are estimates that around half of the children below two years of age “are anaemic”, while 70 per cent are deficient in vitamin A.119 There are also “high levels of stunting” because the diet does not contain enough protein, a problem which in turn exists because of lack of access to sufficient protein rich food.120 Because of the deteriorating living conditions and a rise in poverty in Gaza the health conditions for the children in the Gaza Strip and the West Bank are not the same, with the situation being

113

UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 114 UNICEF, UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 115 UNICEF, UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 116 UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 117 UNICEF, At a glance: Occupied Palestinian Territory, Background, www.unicef. org/infobycountry/oPt.html, May 19, 2008 118 Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890 119 UNICEF, At a glance: Occupied Palestinian Territory, Background, www.unicef. org/infobycountry/oPt.html, May 19, 2008 120 UNICEF, Occupied Palestinian Territory, The children, Early years, www.unicef. Org/oPt/children.html, 2008-06-04

Public Health and Armed Conflict

worse in Gaza.121 Twenty-one per every 1,000 of those children born alive die before the age of one in the West Bank, while 31 per every such 1,000 children die in the Gaza Strip.122 Furthermore as UNICEF has reported “approximately 10 per cent of girls ages 15 to 18 are pregnant or already have a child”.123 About one-fift h of the children have been exposed to violence from a family member.124 The health care situation in Gaza has been severely affected by the Israeli blockade. Hospitals and medical facilities experience frequent shortages of electricity, lack of equipment, spare parts and medications due to the blockade.125 Because of an escalation of fighting including Israeli military air strikes and artillery attacks on the Gaza Strip between February 27 and March 3 in 2008 which lead to over 100 Palestinians being killed of which half were civilians and a large number of people were injured, the Palestinian Ministry of Health declared a state of emergency.126 When adequate medical help is not available in Gaza, the patient needs to be transported to a hospital in Israel, but due to the border closures there are few opportunities to be able to cross the border. Access to medical care has become a very important problem due to the closure regime.127 Some hospitals and medical facilities have been destroyed by Israeli military attacks from the air. 2.4.

Public Health Concerns in the Democratic Republic of Congo and Colombia

The malnutrition of the Congolese children is a very significant problem, where 38 per cent of the children suffer from chronic malnutrition, and for 20 per cent the chronic malnutrition has led to severe stunted growth, and where 13 per cent of the children have acute malnutrition, of which 3 per cent suffer from the worst form.128 Thirty-one per cent of the children suffer from “too little” weight 121 122 123 124 125 126 127 128

UNICEF, Occupied Palestinian Territory, The children, Early years, www.unicef. Org/oPt/children.html, 2008-06-04 UNICEF, Occupied Palestinian Territory, The children, Early years, www.unicef. Org/oPt/children.html, 2008-06-044 UNICEF, At a glance: Occupied Palestinian Territory, Background, www.unicef. org/infobycountry/oPt.html, May 19, 2008 UNICEF, At a glance: Occupied Palestinian Territory, Background, www.unicef. org/infobycountry/oPt.html, May 19, 2008 Amnesty International, Children and civilian bystanders in Gaza death toll, 3 March 2008, www.amnesty.org/en/news-and-updates/news/childrenAmnesty International, Health Professional Action, Deterioration of health care situation in Gaza, 3 March 2008, MDE 15/016/2008 Amnesty International, Children and civilian bystanders in Gaza death toll, 3 March 2008, www.amnesty.org/en/news-and-updates/news/children L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comite des Droits

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of which 9 per cent of the children are seriously underweight. About 11 per cent of the newborn babies weigh less than 2.5 kilos at birth. Th is is related to the poor state of the mother’s health, where 17 per cent of the mothers are malnourished and 2 per cent are overweight.129 As has been noted the state of the health situation for mothers and their children is a real public health problem, while there has been an increase of health workers in DRC being able to give assistance to women at childbirth, an increase to 74 per cent of the women getting such assistance in 2007 from 61 per cent in 2001, the maternal mortality rate in DRC is one of the highest in the world.130 The child mortality rate at birth increased from 114 per cent in 1995 to 126 per cent in 2001, and the death rate for infants/toddlers also increased to 213 per cent in 2001 from 190 per cent in 1995.131 Twenty-two per cent of the children have diarrhoea and this rate has not changed between 1995 and 2001, with only 11 per cent of the children receiving treatment for diarrhoea at home. Other public health concerns are that 95 per cent of the rural population all over the country does not have access to drinkable water, that about 70–80 per cent of the population, mainly women and children, need to walk long distances to get water, while in Kinshasa, the capital, 84 per cent have access to drinkable water.132 There is a lack of food security in the whole country, where about 75 per cent of the population in the larger urban areas “live from day to day” with no extra food having been stocked up or enough money to buy food.133 In addition, the hygienic system in the country is very poor, where only 46 per cent of the de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 50, Translated by Author. 129 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 50, Translated by Author. 130 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 49, Translated by Author. 131 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 49, Translated by Author. 132 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 59, Translated by Author. 133 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 58, Translated by Author.

Public Health and Armed Conflict

whole population are using flush toilets, of which 61 per cent live in the urban centres and 39 per cent in the rural areas. Furthermore, the government has had no housing policy either for the urban or the rural areas, and there is no workable sewerage system in place.134 This has led to that people have used rain and have created their own sewerage systems which in turn has impacted negatively on the environment. The social and legal protection of children under the age of 15 years is very weak in DRC, with about 10 per cent of the children living without a biological parent and with 21 per cent of the children living with only one biological parent which is mostly the mother.135 One of the most serious public health concerns in Colombia is violence within families. Intra-family violence is today the number one cause of death for men and women between 15 to 44 years of age.136 While violence within the family is not a new phenomenon in Colombia this problem has significantly increased since 2003. Within this context there is an increased recognition that there is a link between intrafamily violence and recruitment of children into illegal armed groups.137 This has led to an increased attention to the need to link the prevention of violence within families to the prevention of recruitment of children, since one of the factors that has been identified to contribute to child recruitment is intrafamily violence.138 Another emerging public health issue in Colombia is HIV/AIDS and the internally displaced population is especially vulnerable to 134 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 59, Translated by Author. 135 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf, p. 49, Translated by Author. 136 International Organization for Migration, Una mirada internacional a la violencia intrafamiliar, July 26, 2006, www.oim.org.co/modulos/contenido/, p 2 of 3: Women and children are the main victims of family violence, 47% of the mothers hit their children and 26% of the women have been abused by her marital partner, Translated by Author. 137 International Organization for Migration, Una mirada internacional a la violencia intrafamiliar, July 26, 2006, www.oim.org.co/modulos/contenido/, p 2 of 3, Translated by Author. 138 International Organization for Migration, Una mirada internacional a la violencia intrafamiliar, July 26, 2006, www.oim.org.co/modulos/contenido/: “El Congreso hacer parte de las acciones que implementa el Programa de Atención a niños, niñas y jóvenes desvinculados de los grupos armadas ilegales de la OIM en el marco del Proyecto Prevención de la Vinculación de niños, niñas y adolescentes a Grupos armados irregulares, a través de acciones de prevención de la violencia Intrafamiliar en el marco de la política nacional de Paz y convivencia familiar Haz Paz”, Translated by Author.

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get infected with the HIV/AIDS virus or other sexual transmitted diseases.139 Many people migrate to urban areas where they become marginalized and live in extreme poverty. It is important to underline that children of both sexes are particularly exposed and vulnerable in this environment to sexual violence and prostitution, and are thus at high risk of getting infected with the HIV/AIDS virus or other sexually transmitted diseases.140 2.5.

The United Nations Committee on the Rights of the Child and HIV/AIDS

Recognizing the enormous impact that HIV/AIDS has on children worldwide, the UN Committee on the Rights of the Child issued a General Comment on HIV/AIDS and the rights of the child in 2003.141 Here the Committee referred to UNAIDS (the Joint United Nations Programme on HIV/AIDS) that at the time had reported that the majority of the new infections affected young persons between 15 to 24 years of age, as well as younger children “in most parts of the world”.142 Underlining that a holistic approach needs to be applied to HIV/AIDS with regards to children, the Committee noted that while HIV/AIDS is not only a medical or health issue, Article 24 of the CRC on health was still central, but that all the rights of children and youth, civil, political, economic, social and cultural, were impacted.143 Noting that apart from the four general principles of the CRC (Articles 2, 3, 6, and 12) the most relevant articles in the CRC with regards to HIV/ AIDS were the right to access information and material aimed at the promotion of their social, spiritual and moral well-being and physical and mental health (Article 17); the right to preventive health care, sex education and family planning education and services (Article 24(f)); the right to an appropriate standard of living (Article 27); the right to privacy (Article 16); the right not to be separated from parents (Article 9); the right to be protected from violence (Article 19); the right to special protection and assistance by the state (Article 20); the rights of children with disabilities (Article 23); the right to health (Article 24); the right to social security, including social insurance (Article 26); the right to education and leisure (Articles 28 and 31); the right to be protected from economic and sexual 139

International Organization for Migration, Mission in Colombia, Sensitizing on HIV and AIDS to Internally Displaced Populations, 2008, www.oim.org.co 140 International Organization for Migration, Mission in Colombia, Sensitizing on HIV and AIDS to Internally Displaced Populations, 2008, www.oim.org.co 141 United Nations, Convention on the Rights of the Child, CRC, Committee on the Rights of the Child, Thirty-second session, 13-31 January 2003, General Comment No. 3 (2003), HIV/AIDS and the rights of the child, CRC/GC/2003/3, 17 March 2003 142 General Comment No. 3 (2003), HIV/AIDS and the rights of the child, CRC/ GC/2003/3, 17 March 2003, para. 2 143 General Comment No. 3 (2003), HIV/AIDS and the rights of the child, CRC/ GC/2003/3, 17 March 2003, para. 5

Public Health and Armed Conflict

exploitation and abuse, and from illicit use of narcotic drugs (Articles 32, 33, 34 and 36); the right to be protected from abduction, sale and trafficking as well as torture or other cruel, inhuman or degrading treatment or punishment (Articles 35 and 37); and the right to physical and psychological recovery and social reintegration (Article 39).144 With regards to the non-discrimination right in Article 2 of the CRC, the Committee noted that “[d]iscrimination also fuels the epidemic by making children in particular those belonging to certain groups like children living in remote or rural areas where services are less accessible, more vulnerable to infection. These children are thus doubly victimized.”145 The Committee underlined that “[p]articular attention must be paid to raising awareness among the hard-toreach populations”.146 With regards to Article 12 concerning the right of children to have their views expressed and listened to, the Committee explained that it had been shown that when children “are actively involved in assessing needs, devising solutions, shaping strategies and carrying them out rather than being seen as objects for whom decisions are made”, interventions were benefitting children the most.147 While recognizing that HIV/AIDS can affect all children in any country, the Committee also remarked that those children who were the most vulnerable to HIV/AIDS are the “children living in refugee and internally displaced persons camps, children in detention, children living in institutions, as well as children living in extreme poverty, children living in situations of armed conflict, child soldiers, economically and sexually exploited children, and disabled, migrant, minority, indigenous, and street children”.148 Here the Committee underlined that “[e]ven in times of severe resource constraints, … the rights of vulnerable members of society must be protected and that many measures can be pursued with minimum resource implications”.149 In its General Comment the Committee expressed concern that health services are in general inadequate to the needs of children and then especially to the

144 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 5-6 145 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 7 146 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 17 147 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 12 148 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 30 149 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 30

and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/

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needs of the adolescents.150 The Committee noted and has done so several times before that the health services that a state provides for need to be not only accessible to the children but also “user-friendly”, stating that if the services are friendly and supportive, and a wide range of services and information are provided, if these are “geared” to the needs of the child, if they are given the opportunity to participate in the decisions regarding their health, if the services are affordable, confidential, non-judgmental, non-discriminatory and if parental consent is not required, then it is much more probable that the child will use the health services.151 In this context the Committee remarked that also in cases where child-friendly health services have been provided, “children with disabilities, indigenous children, children belonging to minorities, children living in rural areas, children living in extreme poverty or children who are otherwise marginalized within the society” still did not have access to these services.152 Also, children with HIV/AIDS were “routinely denied access to health services” in those cases when the capacity of whole health systems have been struggling. Here the Committee stated that “States parties must ensure that services are provided to the maximum extent possible to all children living within their borders, without discrimination, and that they sufficiently take into account differences in gender, age and the social, economic, cultural and political context in which children live”.153 The Committee recommended the states parties among other things to develop and implement child-centred and rights-based policies concerning HIV/ AIDS, including incorporating the CRC, and to “the maximum extent possible” allocate financial, technical and human resources, and to in their reports under Article 44 of the CRC to the Committee include information on the policies, programmes, budget and resource allocations regarding HIV/AIDS and children and adolescents.154 2.6.

UNICEF and an Equity-Based Approach to Child Survival and Development

UNICEF’s study “Narrowing the Gaps to Meet the Goals” clearly confirmed that it is the children from the poorest and most marginalized population groups that 150 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 20 151 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 20 152 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 21 153 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 21 154 General Comment No. 3 (2003), HIV/AIDS GC/2003/3, 17 March 2003, para. 40 (a), (b), (f)

and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/ and the rights of the child, CRC/

Public Health and Armed Conflict

are the most disproportionally deprived of their rights compared to children from other groups, and that it would be more cost effective to focus on their needs than on the most easy to reach which has been the traditional approach in service delivery.155 A broad review of mainstream and pro-equity strategies for the areas of young child survival and development, HIV and AIDS, basic education and gender equality and child protection was conducted, used as a base for a further study on how to achieve the health MDGs for children. Importantly while progress towards achieving the MDG goals continuously takes place, at the same time sub-Saharan Africa, South Asia and the least developed countries are still far behind, and at issue is that in determining progress it is the national average that is being used, and as UNICEF has remarked “progress based on national averaging can conceal broad and even widening disparities in poverty and children’s development among regions and within countries”.156 As UNICEF noted that “within many countries, falling national averages of child mortality conceal widening inequalities”, and as one study of 26 countries showed that since 1990 a 10 per cent decline in under-five mortality had taken place, it was also found that the gap between the richest and the poorest children in 18 of these countries had grown or stayed the same with regards to the underfive mortality rate and that this gap had increased in 10 of the 18 countries.157 The study showed that if an equity-based strategy to child survival and development is used this would more quickly and cost-effectively lead to the MDGs 4 and 5 (reduce child mortality and improve maternal health) being reached by 2015.158 The traditional approach has been to focus on the children who are the most easy to reach which tend to be children living in urban areas and not the poorest children who most often live in the country-side as this has not been considered to be cost-effective.159 Instead traditional service delivery modes in facilities like hospitals and clinics have been supported to reach the most easy to reach children as more lives were thought to be saved and it was seen as cost-effective. Amazingly the traditional approach has not assessed in a systematic way the needs of the poorest and most marginalized communities, and they have often been excluded from national development plans including allocated resources.160 Instead UNICEF means that as a result of this new study an equity approach which focuses on the most excluded populations should be used which “aims to accelerate progress, reduce disparities and lower out-of-pocket expenditures

155 156 157 158 159 160

UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 3 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 1 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 1 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 1 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 3 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 5

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for the poor” using three key measures, and that this “could accelerate progress towards the MDGs in a cost-effective way”.161 The key measures include upgrading selected facilities especially for maternal and newborn care, expanding maternity services at the primary level, overcoming barriers that prevent the poorest from using services even when they are available to them by eliminating user charges and provide cash transfers, and task shifting through community outreach, greater use of community health workers to deliver basic health-care services outside of facilities, improving community involvement to promote care-seeking and healthy practices.162 In the study UNICEF asked the following question: “Because the needs are greatest in the most deprived areas, would the benefits of concentrating on them outweigh the greater costs in reaching them?”, and the main findings from the study were very clear:163 1.

2.

National burdens of disease, undernutrition, ill health, illiteracy and many protection abuses are concentrated in the most impoverished child populations. Providing these children with essential services through an equityfocused approach to child survival and development has great potential to accelerate progress towards the Millennium Development Goals and other international commitments to children. An equity-focused approach could bring vastly improved returns on investment by averting far more child and maternal deaths and episodes of undernutrition and markedly expanding effective coverage of key primary health and nutrition interventions.

In conclusion it was found that “an equity-focused approach to child survival and development is the most practical and cost-effective way of meeting the health Millennium Development Goals for children”.164 In this context it is notable that the top ten humanitarian crises of 2009 as identified yearly by Médecins sans Frontières (MSF) were DRC, Somalia, Sudan, Sri Lanka, Pakistan, Afghanistan, Yemen, and children died mainly from malnutrition, Aids and neglected diseases such as measles.165 Worldwide between 3.5 to 5 million children are dying every year from malnutrition-related causes, which is an estimated one death every six seconds. While malnutrition is easily preventable and treated, and improvements have been made in recent years, lack of adequate funding specifically targeting child malnutrition is one of the reasons 161 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 3 162 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 3-4 163 UNICEF, ‘Summary of the Key Findings’, Narrowing the Gaps to Meet the Goals, 7 September 2010, p. 1 and 3 164 UNICEF, Narrowing the Gaps to Meet the Goals, 7 September 2010 165 Médecins Sans Frontières, MSF’s Top Ten Humanitarian Crises of 2009, www.doctorswithoutborders.org/publications/topten/2009/story.cfm?id=4105

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as to why so many children worldwide still die from lack of nutrition. As MSF found less than 2 per cent of the substantial international assistance that is given to “development food aid and food security” or “emergency food aid” is explicitly intended for the reduction of childhood malnutrition.166 MSF identified 50 countries in the world with a high under-five mortality rate (greater than 50 per 1,000) and greater than 30 per cent of stunting in under-fives.167 Some of these countries also have more than 15 per cent of the population with acute malnutrition and they include DRC, Eritrea, India, Sudan and Yemen. Of these 50 countries some have more than 10 per cent of the population with acute malnutrition and they include CAR, Ethiopia, Haiti, Myanmar, Nepal, Pakistan, Sierra Leone, Somalia and Timor-Leste. Finally some of these countries have more than 4 per cent of acute malnutrition and they include Afghanistan, Angola, Benin, Côte d’Ivoire, Iraq, Kenya, Liberia, Rwanda, Uganda and Zimbabwe. The countries that have most children under-five that have severe acute malnutrition in the world as of 2009 were India (8.0 million), DRC (1.3 million), Pakistan (1.2 million), Nigeria (1.1 million) and Ethiopia (0.6 million).168 2.7.

Delivering Health Care in Emergencies and Armed Conflict

That armed conflict has a devastating effect on existing health services and many times overturns the improvements that have already been achieved prior to the conflict, resulting in even more poverty and poorer health, is a recognized fact.169 Armed conflict is a major obstacle for the realization of the Millennium Development Goals (MDGs) which affects the already disadvantage populations and especially women and children the most. In order to more effectively be able to deliver humanitarian aid to the populations that most need it “basic epidemiological analysis” as well as improved evidence based research have been called for in determining how conflicts affect the public health of people and who conflicts

166 Médecins Sans Frontières, MSF’s Top Ten Humanitarian Crises of 2009, www.doctorswithoutborders.org/publications/topten/2009/story.cfm?id=4105, 4/22/2010 167 Médecins Sans Frontières, MSF’s Top Ten Humanitarian Crises of 2009, Woefully Inadequate Funding Undermines Gains in Childhood malnutrition Treatment, Malnutrition Hotspots, www.doctorswithoutborders.org/publications/ topten/2009/assets/images/maps/malnu..., 4/22/2010: Stunting is defined as growth retardation which is indicated by low height for the age 0-2 years, and waisting is defined as emaciation or thinness as measured by low weight for one’s height. 168 Médecins Sans Frontières, MSF’s Top Ten Humanitarian Crises of 2009, Woefully Inadequate Funding Undermines Gains in Childhood malnutrition Treatment, Malnutrition Hotspots, www.doctorswithoutborders.org/publications/ topten/2009/assets/images/maps/malnu..., 4/22/2010 169 See for instance Zwi, A. B., Grove, N. J., Kelly P., Gayer M., Ramos-Jimenez P., Sommerfeld, J., Child Health in Armed Confl ict: Time to Rethink, The Lancet, Volume 367, Issue 9526, p. 1886-1888, 10 June 2006

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affect.170 With regards to evidence based research in the context of complex emergencies a rise in the mortality rate constitutes a benchmark for international recommendations in a given situation. Children under five years of age are consistently being identified as experiencing “extreme vulnerability” in such emergency situations.171 For instance as Moss et al. have explained “[t]he highest mortality rates in refugee populations are in children younger than 5 years”.172 It has been found that the pre-existing prevalence of different child diseases does not change by an armed conflict, but that children experiencing armed conflict experience “significant increases of mortality” caused by diarrheal diseases, severe malnutrition, respiratory infections and measles.173 One study on mortality rates among conflict-affected children found that children younger than five years of age show “consistently higher” absolute mortality rates compared to children over five years of age.174 This was true in both non-conflict and conflict settings. But children over five years of age were found to have in all cases a higher risk of dying in conflicts. In 46 per cent of the cases examined the mortality rate for children under five years of age had decreased compared to the mortality rate prior to the war, while in 95 per cent of the cases it was at the time of the armed conflict that there was a rise in the mortality rates with regards to the over five year olds.175 The study demonstrated that different conflicts resulted in a “wide variation” in the mortality rates, and that the pre-existing health conditions of the victims, the pre-existing patterns in disease incidences and endemicity as well as the type of war and international interests in the regions were identified as possible causes of this wide variation in conflict-related mortality.176 That there is a “disproportionately high child mortality” in terms of absolute rates was corroborated by this study, as it was verified that children over five

170 Guha-Sapir, D., van Panhuis, W. G., Conflict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 418-419 171 Guha-Sapir, D., van Panhuis, W. G., Conflict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 419 172 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 59 173 Guha-Sapir, D., van Panhuis, W. G., Confl ict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 419 174 Guha-Sapir, D., van Panhuis, W. G., Confl ict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 420 175 Guha-Sapir, D., van Panhuis, W. G., Confl ict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 420-422 176 Guha-Sapir, D., van Panhuis, W. G., Conflict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 422

Public Health and Armed Conflict

years of age have a “higher relative risk of dying” in conflict settings.177 In some of the conflict settings surveyed it was found that fewer children died during the conflict than before the conflict, which could have been explained by that the humanitarian aid that was delivered during the confl ict improved the situation for these children.178 In this context it was found that the risk of dying was higher for the children over five years of age than for the children under five years of age. However, in some cases the over five years old children had lower mortality rates when the conflict was on-going than they had before, as it was shown that both the under-five and the over-five populations when it came to the situation concerning safe water, sanitation and health services before the conflict erupted were in the bottom 8 per cent which showed their precarious pre-war situation.179 Again, the study found that humanitarian aid delivered during the armed conflict was thought to have been a factor that positively affected the situation for these children, and is a factor that needs to be acknowledged in the future planning and delivery of developmental assistance to both pre-conflict and post-conflict countries to make such assistance much more effective. Additional factors that help explain why the mortality rates for children over five years and adults can be the same or higher than for younger children include that the mortality rates increase when cholera or dysentery have broken out, which frequently occurs in conflict settings, or as a consequence of several deaths in the civilian population because of the war.180 Refugees and internally displaced populations experience especially high levels of mortality, morbidity and malnutrition rates, and these populations experience the worst effects of war at the time of the acute emergency phase at the beginning of the war because the relief efforts have not yet begun or are just beginning to get initiated.181 It has been found that during the acute emergency phase in some cases the deaths among the refugee population have been “60

177

Guha-Sapir, D., van Panhuis, W. G., Confl ict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 422 178 Guha-Sapir, D., van Panhuis, W. G., Conflict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 422 179 Guha-Sapir, D., van Panhuis, W. G., Conflict-related Mortality: An Analysis of 37 Datasets, Disasters, 2004, 28(4):418-428, p. 423 180 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 59 181 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 4 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009

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times the crude mortality rate (CMR)” for the country-of-origin’s non-refugee population.182 When it comes to the correlation between under-nutrition and death, there is an increased risk of mortality among the population experiencing under-nutrition and especially for children the risk increases, however a communicable disease is in most cases “the immediate cause of death”.183 But it is still malnutrition that is the underlying cause for a higher case-fatality ratio regarding the communicable diseases that children experience the most such as measles, diarrheal disease, malaria and acute respiratory infections.184 It is the poor, the elderly, women and young children who are most at risk of dying when there is no famine, and these groups have the highest morbidity and mortality risk also during famine. In this context it has been shown that the refugee and displaced populations have a “markedly higher CMR” than the local host country and non-displaced populations.185 In 1994 in the refugee camps in North Kivu in DRC (then Zaire) for the Rwandan refugees, it was reported that it was watery or bloody diarrhoea that was causing over 90 per cent of the 50,000 deaths during the first month following the arrival of the refugees.186 While the refugee and displaced population and the non-displaced populations in developing countries experience the same diseases such as malnutrition, diarrheal diseases, measles and malaria and are the main causes of death for all these populations, the combination of high malnutrition rates and more cases of communicable diseases among the refugee and displaced populations was found to be the reason for the “excess mortality” 182 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 4 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 183 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 6 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 184 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 6 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 185 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 7 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 186 Toole MJ, Waldman RJ, The Public Health Aspects of Complex Emergencies and Refugee Situations, Annu. Re., Public Health 1997, 18:282-312, p. 292

Public Health and Armed Conflict

rate among these populations.187 So far most research has been on “severe malnutrition” rates during armed conflicts, however there is also a need to take into account mild-to-moderate malnutrition since this is “a significant underlying cause of death in children” in non-emergency situations, and therefore there is a high probability that this would be the case also in complex emergencies.188 Children younger than five years of age experience the highest death rates among the displaced and refugee populations.189 For example in 1991 a study on mortality of Kurdish refugees living by the border between Turkey and Iraq showed that children younger than five years of age accounted for 63 per cent of all deaths even as the children of this age group only constituted 18 per cent of the whole group of people.190 During the Rwandan genocide in 1994, over 10,000 Rwandan unaccompanied children became registered as refugees in North Kivu of which the majority were orphans, and they had the highest mortality rate of the refugee population from Rwanda.191 In the initial six weeks in the camps the death rates per day came to be 20 to 80 times higher in this group of children compared to how the under-five mortality rates had been prior to the genocide in Rwanda.192 While data on gender-specific mortality is generally not conducted, there are exceptions such as in Bangladesh in the Gundhum II camp for Burmese refugees.193 It was found that the refugee girls from Burma under the age of one year had a death rate that was nearly twice as high compared to the boys, and 187 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues, MMWR. Recommendations and Reports, July 24, 1992;41 (No.RR-13); (p. 8 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 188 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 60 189 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 7 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 190 US Department of Health and Human Services Public Health Service, Centers for Disease Control. Famine-Affected, Refugee, and Displaced Populations: Recommendations for Public Health Issues. MMWR, Recommendations and Reports, July 24, 1992; 41 (No.RR-13); (p. 7 of 67), www.cdc.gov/mmwr/preview/mmwrhtml/00019261. htm, accessed 7/26/2009 191 Toole MJ, Waldman RJ, The Public Health Aspects of Complex Emergencies and Refugee Situations, Annu. Re., Public Health 1997, 18:282-312, p. 291 192 Toole MJ, Waldman RJ, The Public Health Aspects of Complex Emergencies and Refugee Situations, Annu. Re., Public Health 1997, 18:282-312, p. 291 193 Toole MJ, Waldman RJ, The Public Health Aspects of Complex Emergencies and Refugee Situations, Annu. Re., Public Health 1997, 18:282-312, p. 291

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furthermore that “the female-specific death rate” for refugee children over five years of age amounted to 3.5 times the rate for boys. It has been found that those countries that exhibit the highest child mortality rates are having the same causes of death that the majority of children die from in complex emergencies, such as diarrhoeal diseases, acute respiratory infections, measles, malaria, and severe malnutrition.194 In terms of prevention relatively simple measures can be taken, for instance, there was a 31 per cent reduction of diarrhoeal disease among children under five years of age in a refugee camp in Malawi for refugees from Mozambique when the population could hold water in a covered container and spout.195 HIV/AIDS impact children in complex emergencies in many different ways, including that children become more vulnerable to being infected by HIV during conflict because of the “worsening poverty, enhancing the transmission of sexually transmitted diseases to and from military personnel through rape and commercial sex, and through the recruitment of orphaned children into the sex industry”.196 There are many other communicable diseases that cause child deaths in conflict settings such as polio, typhoid fever and tuberculosis.197 Tuberculosis control programmes often become interrupted, and there is an increased risk of exposure to tuberculosis during conflict for children as people live in tight and cramped quarters and do not have access to adequate nutrition.198 Much more research on the risk of both HIV/AIDS and tuberculosis transmissions to children and young people during conflict needs to be conducted as more information on the epidemiology, prevention, diagnosis and management of these two diseases is needed especially with regard to the delivering of health care for the long term.199

194 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 59 195 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 59 196 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 60 197 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 60 198 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 60 199 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 60

Public Health and Armed Conflict

From the time of the eruption of an armed conflict an emergency health programme naturally needs to be initiated right away which on the other hand many times leads to that there is not enough time to learn about which other interventions that might have been initiated at the same time or which interventions are workable, as well as the fact that it is usually international “health professionals” that lead these interventions and they do not always adequately involve the community.200 Issues such as service acceptability, accessibility or responsiveness are usually not considered, nor are issues of whether communities trust or mistrust health services and personnel providing these services and under which circumstances trust and mistrust are issues in a community ruptured by armed conflict and/or displacement.201 Different cultures, beliefs and community practices are seldom considered in emergency programmes, and health promotion and information sessions are mainly focused on the mothers’ needs and not on the children’s. Children’s voices are not often heard and the perspective of children on their health situation is not considered, which the public health community is becoming increasingly aware of.202 Children many times have different views and considerations than adults do and to include their perspective would help improve future interventions. Zwi et al. have pointed out the importance that public health professionals including researchers, in order to gain a much more sufficient understanding of health interventions as they relate to children in emergencies, ask questions like: “[W]hich children are most affected by conflict and displacement? How do experiences differ by age, gender, and social class? What health risks do children perceive and how do they respond? Are these responses health-promoting or health-threatening?”203 In a conflict or emergency setting several organizations are usually involved in providing health care, and the health care workers involved do usually not have the same qualification levels or experience, and they employ different guidelines and training materials, which all are considerable challenges.204 For standards 200 Zwi, A. B., Grove, N. J., Kelly, P., Gayer, M., Ramos-Jimenez, P., Sommerfeld, J., Child Health in Armed Conflict: Time to Rethink, The Lancet, Volume 367, Issue 9526, p. 1886-1888, p. 1887, 10 June 2006 201 Zwi, A. B., Grove, N. J., Kelly, P., Gayer, M., Ramos-Jimenez, P., Sommerfeld, J., Child Health in Armed Conflict: Time to Rethink, The Lancet, Volume 367, Issue 9526, p. 1886-1888, p. 1887, 10 June 2006 202 Zwi, A. B., Grove, N. J., Kelly, P., Gayer, M., Ramos-Jimenez, P., Sommerfeld, J., Child Health in Armed Conflict: Time to Rethink, The Lancet, Volume 367, Issue 9526, p. 1886-1888, p. 1887, 10 June 2006 203 Zwi, A. B., Grove, N. J., Kelly, P., Gayer, M., Ramos-Jimenez, P., Sommerfeld, J., Child Health in Armed Conflict: Time to Rethink, The Lancet, Volume 367, Issue 9526, p. 1886-1888, p. 1887, 10 June 2006 204 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 58

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and guidelines for the care of children in complex emergencies to be adequately developed various issues need to be taken into consideration and these include:205 The type of emergency – whether an armed confl ict, famine, or natural disaster – determines specific health risks and demands responses sufficiently flexible to adapt to these risks. At the onset of an emergency, children differ in their baseline health and nutritional status and risk of exposure to communicable diseases. These regional differences persist into the post-emergency phase. The health needs of refugee children are not the same as those of internally displaced and internally stranded children, and can differ between acute, chronic, and post-emergency settings.

One problem with guidelines has been that they usually are addressed to health care workers who already have much medical training, such as a medical doctor, and not to those with lesser training and who are the ones that in complex emergency situations deliver to children the actual care, such as nurses and clinical officers or even locally trained volunteers.206 To be more useful guidelines need to be adapted to local conditions, be evidence-based and the WHO and UNICEF need to assist the health ministry in a given country in the development of such guidelines and then international relief organizations need to be provided with them.207 The reasons for this is that “most organizations caring for children in complex emergencies use clinical guidelines; health care in complex emergencies is delivered by a wide range of different levels of health-care workers from numerous organizations; guidelines for the prevention and management of child-health problems in complex emergencies exist but need to be brought together into an accessible, comprehensive package”.208 Moss et al. underline that the health care needs with regards to particular populations such as unaccompanied children 205 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 59 206 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 61: Many different people are often involved in the deliverance of health care in emergency settings. 207 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 61 208 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1) p. 61

Public Health and Armed Conflict

and traumatized children (needing mental health care) should be included in such guidelines. When a health ministry is involved in the development of guidelines, existing guidelines from non-emergency situations should be adapted to the emergency situation, certain health problems should be prioritized and the national capacity to transition from the emergency phase to the development phase which includes establishing (or re-establishing) a national health care system should be improved by the newly developed guidelines that international relief organizations use in the emergency phase.209 Mortality and morbidity can be prevented in complex emergencies most efficiently by: “protection from violence; the provision of adequate food rations, clean water and sanitation; diarrheal disease control; measles immunization; maternal and child health care, including the case management of common endemic communicable diseases; and selective feeding programs”.210 It should also be taken into account that evidence-based guidelines for preventing and treating diseases that are caused by malnutrition and infectious diseases in non-emergency settings have often already been developed, and that such guidelines as well as the clinical experience for these preexisting conditions from these non-emergency situations should underpin how the children’s health care needs in complex emergencies are handled.211 In evaluating the health effects of war it is important to keep in mind that there are less visible and often hidden consequences that are seldom identified or difficult to measure, but which risk having lasting effects on the health of people long after the war.212 Factors such as changes in psychosocial behavior, like an increase of alcohol abuse and violence, environmental degradation and a decline in the quality of how health policies and services are being provided, including issues such as policy making and decision making becoming disrupted, all can be part of the health costs of war, but can be challenging to quantify and assess and therefore many times ignored.213 During the long civil war in El Salvador from 1980–1992, some “selective primary health care” interventions were undertaken and they did have some positive effects on the health conditions of children even as the overall public health care system in terms of quality and availability

209 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 62 210 Toole M. J., Waldman R. J., The Public Health Aspects of Complex Emergencies and Refugee Situations, Annu. Re., Public Health 1997, 18:282-312, p. 283 211 Moss, W. J., Ramakrishnan M., Storms D., Henderson Siegle A., Weiss W. M., Lejnev I., Muhe L, Child Health in Complex Emergencies, Bulletin of the World Health Organization, January 2006, 84 (1), p. 62 212 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169 213 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169, 172

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declined.214 As a result of these interventions during the war the infant mortality rate went down, there was an increase of life expectancy at birth, there was a reduction of acute malnutrition where data is available, a reduction of maternal mortality, and a reduction in the mortality rate caused by diseases that can be prevented by vaccine “(tetanus, smallpox, measles, diphtheria and polio)” as well as in malaria.215 These interventions included the World Food Program and USAID (US Agency of International Development) providing help with food, the national armed forces and the insurgency entering into truces that would allow for immunization campaigns, oral rehydration solutions being used, and birth control used to a greater extent.216 It was international agencies that provided financing and logistic support to these interventions. During the war the national health care budget was cut by nearly 50 per cent and the quality of and access to health care declined which is reflected in that the neonatal mortality rate increased, while the infant mortality rate was significantly reduced.217 A mental health study was conducted in El Salvador three years after the war in three towns, of which one town had experienced much warfare, one had had limited exposure and one town had had no direct exposure.218 There was “widespread” psychosocial distress in all three communities, while most distress was found in the town that had experienced the highest levels of warfare, however the town that had not had direct exposure to warfare also showed “high levels” of war related mental health problems as for example death squads had killed priests and others in the community, relatives and friends had gone into exile, or were “displaced, killed, or tortured or had disappeared”.219 The study showed that three years following the end of the war several members of the civilian population from all of these three towns suffered from “anxiety, depression, sleep disturbances, suicidal tendencies, trembling, dizziness, fears and flashbacks”.220 In addition, as a consequence relating to stress and emotional conditions people showed somatic symptoms including “migraines, nausea, headaches, back pain

214 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169 215 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169 216 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169 217 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 169-170 218 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 219 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 220 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170

Public Health and Armed Conflict

and stomach problems”.221 The war in El Salvador resulted in different types of health problems and another study showed that there was an increase of domestic and street violence, alcoholism and drug addiction.222 This was in a context where El Salvador “had one of the highest rates of homicide in the world (17 per 100 000)” in 1996.223 The conflict and the violence in El Salvador led to many people from the countryside moving to the cities, and the municipalities did not have enough resources to take care of the health services for most of the population.224 These basic health services included water supply, sanitation and sewerage and garbage removal, which were and continued to be inadequate for such fast urban growth. As an example the sewerage systems were only linked to 40 per cent of all the households in the urban areas by 2000, which has constituted a real health hazard.225 However, when it comes to diseases connected to the untreated disposal of sewage, much go underreported or not reported at all in official statistics since people treat themselves or the private sector treats these diseases, which leads to the morbidity in this area linked to the war not being properly acknowledged.226 While it is relatively easy to measure indicators such as infant and maternal mortality, malnutrition and life expectancy rates, because it is easier to measure these factors the focus of interventions might be solely on such measures, with the result that other negative effects of war remain little known and unattended to.227 As has been seen selective primary care programmes can have a positive impact on these easily measurable indicators. In addition, it is very difficult to measure the impact on people’s health after the war as a consequence of not having had access to quality health care during the war.228 However, there are negative consequences deriving from the difficulties in measuring the impact of war such as that if they are not properly identified the actual impact of war will not

221 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 222 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 223 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 224 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 225 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 226 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 170 227 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 171 228 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 171

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be acknowledged.229 This situation results in that public health interventions are directed towards the most easily measured and visible issues, like having infrastructure rebuilt, while the problems that are much more difficult to measure are often ignored by international aid agencies.230 In conflict-affected countries the less visible war related psychosocial problems are usually not addressed, like for instance a rise in substance abuse and domestic and societal violence, nor are the problems that are difficult to measure like the degradation of the environment and the problems for governments in their ability to offer public health care and engage in efficient decision- and policymaking.231 As Ugalde et al. showed, factors such as increased substance abuse or degradation of the environment due to an armed conflict have long-term health consequences for people also following an armed conflict, and that is one reason to why it is important to become aware of such issues especially when they have not been recognized to be a consequence of an armed conflict and difficult to quantify.232 Otherwise war-affected populations will continue to suffer unacknowledged and without receiving help even as an armed conflict has come to an end. 2.8.

Case Studies on Public Health in Emergencies and Armed Conflict

2.8.1.

Public Health in Kashmir

Given the fact there have been few studies conducted in the developing world in countries affected by armed conflict of how the population is being psychologically and emotionally affected by armed conflicts, studies conducted in Indian Kashmir show how necessary it is to take into account the different forms of violence (insurgency in Kashmir) and the specific social and cultural aspects of such a conflict. In Kashmir the latest insurgency has been going on since 1989 and people have become deeply affected by the violence and have suffered many traumatic events such as loss of a loved one, loss of property, torture, witnessing a death and violence.233 As a result of many years of violence “a phenomenal increase in 229 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 171 230 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 171 231 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 171-172 232 Ugalde A., Selva-Sutter E., Castillo C., Paz C., Cañas S., The Health Costs of War: Can They be Measured?, BMJ 2000; 321;169-172, p. 172 233 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171

Public Health and Armed Conflict

psychiatric morbidity” has been detected and this comprises stress related disorders.234 A study in Kashmir conducted between 1989 and 2004 has shown that as a result of the insurgency the number of people committing suicide has increased considerably and the main suicide method is poisoning which has increased at an “alarming” rate.235 The main reason for the use of poison with the intent to commit suicide among 89.91 per cent of the people surveyed was “depression with a post-traumatic disorder”, which was caused in turn by the continuous chaotic insurgency environment. About 739 poisoning cases per year have been reported to the Government SMHS Hospital in Srinagar at the time of the insurgency period surveyed, and 69.94 per cent of these cases were “directly” triggered by factors related to the insurgency.236 This is to be compared to that during “the preturmoil period” (from 1985–1989), the hospital received about 332 poisoning cases per year, without any of them having been related to violence. The study showed that the suicidal poisoning rate per year amounted to a 222 per cent increase throughout the years this study on the effects of the insurgency was carried out.237 The long-term insurgency with its damaging cycle of violence in Kashmir has resulted in devastating effects on the economy, damages to property and businesses, unemployment, recruitment to armed groups and where thousands of people have died, and these factors combined have also created the conditions for suicide attempts.238 The environment in Kashmir has been extremely stressful for the population during a long period of time, and the easy availability of different forms of poison, in this study organophosphorous compounds, which were the most commonly used substance in rural areas because of their availability, makes poisoning an easier method of suicide to carry out than other methods. Wani et al. make note that it would be important to have stronger laws that would make this kind of substance more difficult to obtain.239 In terms of public 234 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S61 235 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an xinsurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171 236 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171 237 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171, p. 171 238 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171, p. 171 239 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171, p. 171

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health in areas such as Indian Kashmir with an on-going insurgency, Wani et al. conclude that it is necessary to teach medical doctors how to care for individuals who have been poisoned as the situation in Kashmir shows that a rise in incidents of poisoning as a result of the insurgency is likely to occur, and they also “reemphasized” the psychiatrist’s role because “the possibility of repeated attempts is high” in this context.240 Since there has been such a high increase of mental health problems in Kashmir due to the insurgency violence, a study of the families of PTSD (posttraumatic stress disorder) patients was carried out in Indian Kashmir with the purpose of determining the state of mental health in the family environment.241 It was found that a very high number of family members had PTSD, 32.12 per cent, of the 62 per cent of all the family members that showed psychiatric morbidity. The majority of the family members who had PTSD were younger (18–45 years of age), female, illiterate and self-employed, and there was a significant link between employment and PTSD as it was 2.7 times more prevalent in the self-employed group to have PTSD.242 Eighty per cent of the family members who had PTSD were from the younger age group (18–45 years) which the authors believed was because this age group was more exposed to traumatic events during the conflict than for instance the older generation.243 There was a nearly four times higher risk for the family members in the illiterate group to exhibit PTSD, than those who were literate, and for females the PTSD rate was 2.29 times more prevalent compared to the males.244 Of the 32.12 per cent of the family members who had PTSD, 84 per cent had an acute onset and chronic form of PTSD, and these were the family members to the actual patients who were the ones who had sought help.245 The “very high” prevalence of PTSD was linked to by Wani and Margoob to people in Indian Kashmir having been exposed to “high occurrence of traumatic events” for a long period of time because of the insurgency.246

240 Wani, Z., A., Dhar, S., A., Hussain, A., and Qureshi, W., The unreported morbidity of suicidal poisonings during an insurgency: a 16-year Kashmir experience, Tropical Doctor, 2008; 38: 170-171, p. 171 241 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S61 242 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S62 243 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S62 244 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S62-63 245 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S62-63 246 Wani, Z., A. and Margoob, M. A., Family Study of Adult PTSD Patients in South Asia-Experience from Kashmir, JK-Practitioner 2006;13 (Suppl 1): S61-S64, S63

Public Health and Armed Conflict

In terms of public health, the lack of knowledge about psychiatric symptomatology due to poor training in mental health care for medical doctors working in primary health care is a serious problem in developing countries such as Indian Kashmir, as misdiagnosis often leads to continuous suffering of the patients and in many cases to unnecessary investigations and tests which are very costly for the patients.247 As is the case in many developing countries, it is the patients themselves who have to pay for the tests as they do not have health insurance, and this is in a context of low incomes and poverty.248 In these contexts seeking medical care and going through investigations and tests become heavy financial burdens on the families. In addition, in Kashmir as a result of the long armed conflict, the health care institutions do not function properly, there is little accountability in the system, with the health care delivery systems not having been run effectively and therefore have broken down.249 Many human rights violations in Kashmir have been committed by the different armed actors over the years against the civilian population, and enforced disappearances of thousands of people since 1989 have been one of the most common violations, and this crime has been committed with impunity with no recourse to justice.250 It is also important to recognize that India has not been willing to acknowledge that the armed conflict in Kashmir has amounted to a non-international armed conflict, thus making Additional Protocol II of the 1949 Geneva Conventions non-applicable as its low threshold (internal disturbances) has not been considered to be reached.251 This decision has left the civilian population including the children without any protection and utterly exposed. 2.8.2.

Public Health in Afghanistan

Afghanistan has one of the highest rates of child mortality in the world. A study from 1993 revealed that for children below five years of age the daily mortality 247 Wani, Z. A., Khan, A. W., Baba, A. A., Khan, H. A., Wani, Qurat-ul, A., and Taploo, R., Short Report, Cotard’s Syndrome and Delayed Diagnosis in Kashmir, India, International Journal of Mental Health Systems 2008, 2:1, 11 January 2008, p. 2, 3 of 4 248 Wani, Z. A., Khan, A. W., Baba, A. A., Khan, H. A., Wani, Qurat-ul, A., and Taploo, R., Short Report, Cotard’s Syndrome and Delayed Diagnosis in Kashmir, India, International Journal of Mental Health Systems 2008, 2:1, 11 January 2008, p. 2, 3 of 4 249 Wani, Z. A., Khan, A. W., Baba, A. A., Khan, H. A., Wani, Qurat-ul, A., and Taploo, R., Short Report, Cotard’s Syndrome and Delayed Diagnosis in Kashmir, India, International Journal of Mental Health Systems 2008, 2:1, 11 January 2008, p. 3 of 4 250 Chari, Shri, P. R., Protecting Human Rights in Times of Confl ict: An Indian Perspective, in Ranstorp. M., and Wilkinson, P., Eds., Terrorism and Human Rights, 2008, and Amnesty International, Report 2009, The State of the World’s Human Rights, p. 170 251 Hamilton, C., and El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 32

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rate was 260/100,000 for those who lived in Kabul, while for the Afghan refugees it was 190/100,000.252 The probable cause for this was that the refugees got humanitarian assistance from international organizations, while the resident population did not receive such assistance. Among the Afghan refugees in Quetta in Pakistan it was revealed in 1994 that 80 per cent of the children had not been registered at birth and that the child mortality rate among this refugee population had been 31 per cent, 112/366 births.253 Malnutrition was a major problem with 67 per cent of the children being “severely malnourished”, and further there was a rise in malnutrition the older the child got. It was the UN agencies and NGOs that provided all the help to the refugee population. Especially the war widows and families were being impoverished and suffered under the Taliban regime.254 The girls in Afghanistan were the most affected by the shortages of food and malnutrition during the Taliban years. It has been suggested that the international development assistance being brought to Afghanistan needed to be supplemented with corresponding programmes for “human and social development” also in Pakistan.255 In Afghanistan the increased fighting in 2009 and 2010 has resulted in more war-related civilian casualties and the hospital, Mirwais hospital, in Kandahar performs about 500 to 700 war-related operations each month.256 The head of the International Committee of the Red Cross (ICRC) delegation in Kabul explains that the people who make it to the hospital “are the lucky ones: many other wounded or sick people simply do not have access to any treatment”.257 Furthermore he explains that “[m]edical facilities and first-aid posts are often not spared the effects of the fighting-occasionally, they are even directly targeted. 252 Bhutta, Z. A., Children of War: the Real Casualties of the Afghan Conflict, BMJ 2002;324;349-352, p. 350 253 Bhutta, Z. A., Children of War: the Real Casualties of the Afghan Conflict, BMJ 2002;324;349-352, p. 350 254 Bhutta, Z. A., Children of War: the Real Casualties of the Afghan Conflict, BMJ 2002;324;349-352, p. 351 255 Bhutta, Z. A., Children of War: the Real Casualties of the Afghan Conflict, BMJ 2002;324;349-352, p. 352 256 In 2009 Mirwais hospital admitted 2,112 weapon-wounded patients compared to 1,598 such patients being admitted in 2008, that was a 25% increase; 331 weaponwounded persons were admitted in August 2009 alone, compared to August 2008 when 149 such patients were admitted. It is important to take into account that multiple surgical procedures are often needed for these kind of patients, which requires expertise, increased workload for the hospital staff and longer periods of admittance for patients: ICRC, Afghanistan: War’s heavy toll on civilians, News Release 10/09, 26-01-2010, www.icrc.org/web/eng/siteeng0.nsf/html/afghanistan-news260110!Open Docu…., 2010-01-27 257 ICRC, Afghanistan: War’s heavy toll on civilians, News Release 10/09, 26-01-2010, www.icrc.org/web/eng/siteeng0.nsf/html/afghanistan-news-260110!Open Docu…., 2010-01-27

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When ambulances are blocked and sometimes shot at, it becomes impossible to evacuate casualties. Medical workers venturing into remote areas do so at the risk of their lives.”258 Many children are being hurt and injured as a result of the war continuing, and as an example one of Mirwais’ patients in January 2010 was a boy who had lost both his eyes, all of one hand and most of the other hand because of a land mine explosion. However as in other conflicts war-related injuries and deaths are not always the main causes of children’s suffering and deaths in Afghanistan, instead measles, pneumonia, diarrhoea and malnourishment are the main causes of suffering.259 ICRC stated in 2010 that the nutrition factor is considered to be the most important factor that increases both morbidity and mortality among the children.260 The malnutrition that already exists is made worse by the armed confl ict, and in turn malnutrition worsens the condition for children who have these illnesses, as ICRC states “common malnutrition makes common illnesses much worse”.261 Children would be able to survive these types of illnesses, but since immunization has been disrupted by the war, and many live far away from available health care, access to health care is made worse by the conflict as getting to a hospital most of the time is combined with enormous risks.262 As a result many parents wait until it is too late to bring a child to a hospital and therefore many children end up dying. 2.8.3.

Care of Orphaned and Unaccompanied Children in Rwanda After the Genocide

Geltman and Stover representing Médecins du Monde and Physicians for Human Rights conducted a study among internally displaced children in Rwanda and Rwandanese children living in refugee camps in then Zaire now DRC from August 1994 to February 1996.263 After the genocide in Rwanda and the refugee exodus in 1994 an estimated 90,000 to 115,000 children were orphaned or unaccompanied after having been separated from their parents or extended fami258 ICRC, Afghanistan: War’s heavy toll on civilians, News Release 10/09, 26-01-2010, www.icrc.org/web/eng/siteeng0.nsf/html/afghanistan-news-260110!Open Docu…., 2010-01-27 259 ICRC Film: Afghanistan-War zone hospital, January 2010, Reference V-T-CR, Accessed January 27, 2010, www.icrc.org 260 ICRC Film: Afghanistan-War zone hospital, January 2010, Reference V-T-CR, Accessed January 27, 2010, www.icrc.org 261 ICRC Film: Afghanistan-War zone hospital, January 2010, Reference V-T-CR, Accessed January 27, 2010, www.icrc.org 262 ICRC Film: Afghanistan-War zone hospital, January 2010, Reference V-T-CR, Accessed January 27, 2010, www.icrc.org 263 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 289

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lies, and at the time it was a great challenge for the Rwandan government to both locate these children and reunite them when possible with their families.264 It was the biggest tracing programme set up from the time of the WWII and by a coalition of international relief organizations headed by the International Committee of the Red Cross.265 About 94,000 children and 25,000 parents had been registered after one year, of which 43 per cent were found in refugee camps in DRC (then Zaire) and 28 per cent were located in Rwanda. At the time the ages of children were known for 47,646 children and of these about 20 per cent were under six years of age. About 94,000 children had been registered by September 30, 1996, of which 10,564 were reunited with their immediate family members.266 There was another influx of refugees from DRC (Zaire) in the fall of 1996, and between November 14 to December 2, 1996, 2,467 unaccompanied children had been registered and 1,776 children had been reunited with family members.267 Many centres for children in refugee and displaced persons camps were set up after the genocide as well as in orphanages that existed before the genocide.268 These centres were mostly managed by refugee women and they functioned as surrogate mothers, keeping in mind that many of these women had themselves lost their children and/or had become widows during the genocide.269 Because of the upheaval of the war and that the resources were very scarce, the centres could in the beginning not provide any “play activities, teaching, or social functions”.270 While, the women either had some training or no training at all in how to offer foster care in groups, or how to tutor the children, the child morbidity and mortality rates decreased. These centres for children and the orphanages did save the lives of children and provided them with protection from additional violence and trauma both

264 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 291 265 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 291 266 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 291 267 In the text in Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 291, there has been a misspelling of the number as it is noted that “2,4679 unaccompanied children were registered.” 268 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292 269 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292 270 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292

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at the time of the genocide and afterwards.271 However a pressing issue was that most of these centres and orphanages for the children were of low quality, understaffed, over-crowded and ill-equipped, so for these children to remain in these places in the long-term was problematic.272 Here the difference between providing institutional care and foster care was highlighted as there was such a huge need for the caring of children. Institutional care is many times not viewed as the appropriate way to care for children in the long-term, and there are numerous studies over the years that confirm this, however, there are exceptions. In the Rwandan context, it is worth noting that many families traditionally have taken care of children who are not their own.273 A study in 1992 showed that in Kigali about one in every two households took care of children who were not family related. Many children were placed in foster families after the genocide, about 66,610 unaccompanied children were living with a foster family one year after the genocide, which was about two-thirds of the total number of unaccompanied children.274 However, the prevailing poverty and despair in Rwanda after the genocide meant that many families could not provide adequate care for these foster children, and many children were used as labour instead.275 Many of the foster children were not in school or out on the streets working, and the main reason for this was that the foster family lacked enough resources to properly care for the additional child or children.276 At the time guidelines for identifying and selecting a foster family were developed by the government, but they were not enforced nor were the families monitored. Furthermore, as was noted these centres and orphanages assisted in reducing the morbidity and mortality rates among the refugee children who had become orphaned, which in the beginning were very high.277 Malnutrition among the children was of great concern, the challenges involved in offering enough nutrition to the children even in those orphanages that were considered to be well provided for was highlighted. One study of an orphanage in Rusayo of children aged six or younger, showed that there was a very high level of chronic malnutri271 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 272 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 273 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292 274 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292 275 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 276 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 277 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292

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tion among the children (indicators such as stunting and low height for the age were shown), but that the girls especially suffered from acute malnutrition (indicators such as wasting and low weight for height and age were shown).278 This was in a context where high rates of malnutrition had traditionally been a problem in Rwanda. It needs to be noted that over 80 per cent of the health professionals in Rwanda had been killed or had gone into exile during the genocide, and that nearly all of the hospitals and health clinics were destroyed.279 In early 1996 it was thought that there were less than ten trained paediatricians left in Rwanda. An additional issue was how public trust could be re-established in the public health system including in the doctors and medical personnel, as many health professionals including doctors had participated or aided in the genocide.280 There were many lessons to be learnt from Rwanda in how to provide appropriate public health interventions for children in refugee crisis, as the initial response by relief organizations was inadequate.281 As has been pointed out, in order to prevent high child morbidity and mortality rates public health interventions should encompass: “sufficient food rations and clean water; adequate shelter and sanitation facilities; measles immunization for all children; a diarrheal disease control program focusing on the treatment of dehydration with oral rehydration salts; appropriate curative care targeted particularly at malaria and acute respiratory infections; and training for community health workers”.282 Furthermore, training that especially focuses on paediatric and family-oriented relief and medical care was another lesson from Rwanda since children make up a big part of the refugee and internally displaced persons (IDP) populations today. There was also a call for more research on how to prevent certain diseases that many refugee children suffer from such as cholera, measles, hepatitis and malaria.283

278 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 292 279 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 280 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 281 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 282 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293 283 Geltman, P., MD, MPH, Genocide and the plight of children in Rwanda, Letter from Kigali, JAMA, January 22/29, 1997, Vol. 277, No. 4, p. 293

Public Health and Armed Conflict

2.9.

Mental Health Care in Emergencies and Armed Conflict

Mental health care in emergencies and armed conflict are usually severely underdeveloped and difficult to access; however this is a problem that is increasingly being recognized. As a response the Inter-Agency Standing Committee came together to develop a set of guidelines for how the different international organizations and NGOs could work together in providing mental health care in emergency settings including in armed conflict. They published the “Guidelines on Mental Health and Psychosocial Support in Emergency Settings” in 2007.284 They constitute an inter-agency consensus on how to provide mental health care and psychosocial support in emergencies, man-made or natural.285 As Yule has pointed out war gives rise to children developing new mental health needs and adults such as teachers will need assistance with being able to identify and address these new needs.286 He gives as an example how many teachers in Bosnia-Hercegovina after the war were not prepared for the way the children who had endured many months of shelling acted out or their rebellious behaviour.287 Before the war in Bosnia children had been highly disciplined in school and the teachers had not needed to additionally find ways to discipline the children. Furthermore, after the war children during class could become very emotional suddenly starting to cry at the memory of a lost parent, or had reactions such as that when a plane flew over the school they jumped under a desk.288 The teachers had not needed to deal with these types of behaviours and reactions before the war, and subsequently after the war they needed help in finding ways in how to handle these kinds of situations and as such taking on responsibility for helping the children. As was noted, before the war if a child had mental health problems that child would have gone to a specialist many times far from where the child lived.289 The war and the experiences the children had endured during the war resulted in many changes not only for one child but for the whole school 284 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299: participants came from Uganda, Rwanda, Burundi, Somalia, Tanzania, Democratic Republic of Congo, Ethiopia, South Africa, Liberia, Sierra Leone. 285 Wessells, M., van Ommeren, M., Developing inter-agency guidelines on mental health and psychosocial support in emergency settings, Intervention 2008, Vol. 6, No .3/4, p. 199 286 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 29 287 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 29 288 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 29 289 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 29

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environment, which was one of the places where the children recovered from the war, and foremost the teachers needed new tools and means to deal with these experiences in addition to their usual teachings. Teachers in schools also many times are faced with having to address the needs of refugee children which can be a very sensitive situation. For instance in Slovenia teachers have talked about the situation for some refugee children from Bosnia whose fathers had died in Bosnia during the war and that the children did not know about this, and where the teachers were not allowed by the mother to let the said child know about the death.290 Many teachers said that this was the most difficult situation that they must handle. In times of emergencies, the Asian Tsunami of December 2004 made clear that appropriate psychosocial care needs to be offered from the very start, and that both mental health and NGO personnel should be trained in how to provide “evidence-based psychological first aid”.291 Yule underlines that in order to be able to provide a sufficient intervention to a large emergency such as in Iran after the Bam earthquake, there is a need to have proper “planning, preparation and training” in place to address the mental health needs of the population.292 To lessen the mental health problems for children in war, a community response needs to be undertaken that focuses on restoring safety, basic health care needs, education and recreational activities for the children.293 Evidence based mental health interventions are needed, and it is important to include every level of a community in such interventions.294 To provide individual therapy for eventual PTSD symptoms would not be the most appropriate approach under such circumstances, however that does not mean that there are not individuals who might need such help. Yule means that a public health perspective should be applied for these interventions and they should be on a large-scale basis and shortterm with the aim of decreasing the population’s stress levels to the point that they are able to take advantage of other services that might be offered.295 Furthermore, it is being increasingly recognized that there is a need for providing mental health interventions at an early stage of an emergency for the 290 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 33 291 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 1 292 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 2 293 Yule, W., Alleviating the Effects of War and Displacement on Children, Traumatology, Vol. 8, No. 3, September 2002, p. 25 294 Green et al. 2002 or 2003 and Yule in Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 295 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5

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population that has been impacted the most, which has not been the position of for instance WHO which has cautioned against early interventions in general.296 In addition, medications should be prescribed in a very limited fashion, while otherwise many US agencies have advocated for the usage of medications.297 In terms of screening a population in large scale group interventions, the WHO has pointed out that if during such screenings a need would be identified which no one is able to meet, it would be unethical to offer such screenings.298 At the same time, as Yule argues it must be ethical to establish both the scope and nature of all the needs that have not been met, in order to properly understand the real needs.299 After the 2004 Asian Tsunami a great number of NGOs and people arrived in the afflicted areas with the aim of providing different types of training to destitute people; it is not known how much training these NGOs and individuals had themselves, however not very many of them were afterwards continuously overseeing or following up on these trainings which Yule argues “are costly but very necessary if new skills are to be properly learned, applied and sustained”.300 Yule also advocates for the need of more stringent requirements for the funding of NGOs who provide mental health training in emergency settings, where a NGO will be asked to show how effective such interventions have been with regards to people’s well-being instead of as has happened so many times before only account for how many individuals that actually participated in such trainings.301 In emergencies the primary tasks of the first responders are the provision of safety, shelter, survival, food, clean water and sanitation to the population, in which the provision of mental health care might be viewed as a luxury.302 In this context Yule argues that the first responders need all “to be aware of how their interventions impact on the mental health” of the population, so that in the

296 The National Institute for Clinical Excellence, NICE, Guidelines on the treatment of PTSD, 2005 and WHO 2005 Helping children and adolescents in distress: A manual for community workers in emergency settings in Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 297 See NICE 2005 in Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 298 WHO 2005 in Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 299 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 300 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 301 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5 302 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 5

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future it will be possible to quickly respond to also the mental health needs of the population.303 The United Nations Population Fund has pointed out that because of the challenging nature of emergencies, there is seldom any consideration of mental health and psychosocial concerns by the development agencies operating in such settings.304 In order to address this gap on the ground, preparedness to deal with mental health and psychosocial issues should be developed among these agencies in the field due to them being at hand from the start, which is why they are used as the first responders to an emergency, thus being the main actors in those situations.305 Dakkak and Izutsu have argued that to find a way to institutionalize mental health and psychosocial support among the development agencies through developing preparedness could bring the emergency relief and development operations further together and thus the gap between them could close. 2.10.

The Convention on the Rights of Persons With Disabilities

Many children and youth living with disabilities are many times hidden and neglected by their societies, conditions made worse by armed confl ict. That their situation was in great need of acknowledgement was recognized by the adoption of the Convention on the Rights of Persons with Disabilities by the UN General Assembly on December 13, 2006, and it entered into force on May 3, 2008.306 This Convention makes reference in its preamble to among others the ICESCR, the ICCPR, the International Convention on the Elimination of All Forms of Discrimination Against Women and the CRC, and furthermore recognizes the special vulnerability of women and girls who are disabled and that they “are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”, and that “children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by State Parties” to the CRC.307 The Convention also draws atten303 Yule, W., Theory, training and timing: Psychosocial interventions in complex emergencies, International Review of Psychiatry, 2006, 18(3):1-6, p. 6 304 Dakkak H., Izutsu, T., Mental health and psychosocial support in UNFPA: toward implementation of the IASC Guidelines on mental health and psychosocial support in emergency settings, Intervention, 2008, Volume 6, No. 3/4, Page 310-313, p. 312 305 Dakkak H., Izutsu, T., Mental health and psychosocial support in UNFPA: toward implementation of the IASC Guidelines on mental health and psychosocial support in emergency settings, Intervention, 2008, Volume 6, No. 3/4, Page 310-313, p. 312 306 Resolution Adopted by the United Nations General Assembly, A/RES/61/106, and United Nations Enable, Entry into Force and Timeline of Events, accessed May 1, 2011, www.un.org/disabilities/default.asp? 307 The Convention on the Rights of Persons with Disabilities, 2006, Preamble (d.), (q.), (r.)

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tion to in the preamble that most people living with disabilities live in poverty, and specifically states that “the conditions of peace and security based on full respect for the purposes and principles contained in the Charter of the United Nations and observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation”.308 According to Article 4(a) of the Convention the states parties are obliged to adopt legislation, administrative and all other measures considered “appropriate” in order to implement and ensure the rights of the disabled. With regards to disabled women and girls, the states parties according to Article 6(1) have the obligation to implement measures that guarantee them the equal enjoyment of all their human rights, as the state parties have recognized that they are “subject to multiple discrimination”. With regards to children, in Article 7(1) the states parties are to “take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children”. Furthermore the best interests of the child should always be the primary consideration “in all actions concerning children with disabilities”, and children with disabilities shall “have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right”.309 The utter vulnerability for people with disabilities in armed conflict is especially recognized in Article 11 which states that “States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”. The Convention underlines the right of persons with disabilities to an education in Article 24, and the states parties are to ensure that first no person is excluded from the general education system because they are disabled and that “children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability”, this includes the right to access free primary education which is to be compulsory, as well as secondary education on an equal basis with all others with whom they live in their community, and that “reasonable” accommodation to their needs is being provided.310

308 The Convention on the Rights of Persons with Disabilities, 2006, Preamble (t.), (u.) 309 The Convention on the Rights of Persons with Disabilities, 2006, Article 7 (2), 7 (3) 310 The Convention on the Rights of Persons with Disabilities, 2006, Article 24 (2) (a.)(c.)

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The right to health of all persons with disabilities without discrimination because of them being disabled is to be ensured by the states parties, and the states parties are to in Article 25(b) “[p]rovide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons”.311 The persons with disabilities do also have the right to an adequate standard of living and social protection, and the states parties shall according to Article 28(2) (a) “ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes”. The states parties are also to ensure the disabled children’s right to play and recreational activities, as in Article 30(5)(d) the states parties are “[t]o ensure that children with disabilities have equal access with other children to participation in play, recreation and leisure and sporting activities, including those activities in the school system”. A Committee on the Rights of Persons with Disabilities was established at the time of the entry into force of the Convention, and a state party is to submit reports to it first within two years after the Convention has entered into force for the state party, and then every four years.312 An Optional Protocol to the Convention on the Rights of Persons with Disabilities was also adopted by the UN General Assembly on December 13, 2006 and it also entered into force on May 3, 2008, and it gives the Committee the right “to receive and consider communications from or on behalf of individuals or groups of individuals” who claim that they have been victims of a state party to the Convention violating the Convention, if a state party has become a party to the Protocol.313 In addition it establishes in its Article 6 an inquiry procedure where the Committee can conduct an inquiry into a situation that indicates grave or systematic violations by a state party to the Convention including visiting the state party with its consent, in situations where the said state party in addition to the Convention also has ratified the Optional Protocol to it.314 As of November 2012 the Convention has 155 signatories and 127 states parties, and the Protocol has 90 signatories and 76

311 312

The Convention on the Rights of Persons with Disabilities, 2006, Article 25 (b.) The Convention on the Rights of Persons with Disabilities, 2006, Article 34 (1), Article 35 (1) and (2) 313 United Nations Enable, Rights and Dignity of Persons with Disabilities, Entry into Force, http://www.un.org/esa/socdev/enable/rights/convtexte.htm, accessed 3/20/2010; and Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1 (1)-(2) 314 Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 6 (1), (2)

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states parties.315 Bosnia-Hercegovina, Colombia, El Salvador, Guatemala, Haiti, India, Kenya, Rwanda, Sierra Leone, Sudan, Thailand and Uganda have all ratified the Convention, but for instance neither Angola, Burundi (signed), nor DRC have ratified the Convention, keeping in mind the many children and young people who are suffering from for instance war injuries in these countries.

315

UNOHCHR, Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention, Chapter IV, Human Rights, http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chap...,

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Street Children and Other Vulnerable Children

3.1.

Street Children in Africa

Boys make up the majority of street children in Africa (as in developing countries in general), and the reasons for this are mainly socio-cultural where the boys are more often taught to be more independent than girls and where girls are taught to stay at home, and because of cultural gender norms such as in for instance Khartoum in Sudan where the Muslim culture does not allow for girls to go out unaccompanied on the streets.1 Also, the minority of the African street children are actually homeless, while the family structures of these children are different in each country. For instance in Sudan a study on street children found that there were more cases of polygamy in the street children’s families compared to the families of the children who were not street children.2 While there are many reasons as to why children become street children in Africa, such as poverty, lack of educational opportunities, rural to urban migration, social changes such as family abuse, displacement and HIV/AIDS, there is evidence that for the African countries that experience war and political violence there are different reasons to why children become street children.3 For instance in Sudan one of the reasons for the emergence of street children was civil unrest and displacement.4 Another reason which Veale has found 1 2

3

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Veale, A., Dona G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 254 Veale 1996 in Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 255 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 255-256 Veale 1996 in Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 256

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that has led to children becoming street children in Sudan has been the cultural practices of spouse inheritance in camps of displacement after the death of the father. Also in Kenya civil unrest has been linked to street children, and armed conflict and political violence has been connected to the emergence in urban areas of street children in northern Ethiopia, as well as in Angola.5 Furthermore it has been found that a large number of children become street children in post conflict societies because one or both of their parents have died, such as in Rwanda after 1994 and in the region of Tigray in its regional capital city Mekele in Ethiopia.6 About 30 years of civil conflict had been going on in the region of Tigray, and it was found that the number of children whose parents were both dead was much higher (20 per cent) in Mekele than in other parts of the country such as in Addis Ababa (8 per cent), and that a very high number of 51 per cent of children were homeless in Mekele while in Addis Ababa the number was 22 per cent.7 After the war in Angola, it was shown that boys were more likely to become street children as they more often than girls were left to fend for themselves, while family members more often arranged for girls to go to children’s homes.8 While in Mozambique, as a result of the civil war, the girls and boys had experienced the same kind of war exposure, however most of the street children were boys, where the boys visibly reminded people of the civil war, while many of the girls had to engage in prostitution or had to work out of the public eye.9 3.1.1.

Street Children in Nairobi, Kenya

Some of the most significant factors contributing to the phenomenon of street children in Nairobi, Kenya are poverty, rapid urbanization, population growth, family instability and the declining role of the extended family system.10 This is 5

6

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8

9

10

Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 256 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 256 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 256 Moberly 1999 in Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 256-257 Nordström 1997 in Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 257 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 199

Street Children and Other Vulnerable Children

also true for many countries in Africa, where the number of street children has increased at a very large rate because as a consequence of war many children “have been battered, abandoned, abused and neglected by their families” or have become displaced.11 In addition, because of the social, cultural and economic transformations that are taking place not only in Kenya but across Africa, the traditional extended family system and family relationships have as a result not only grown weaker but undermined the situation for children and exposed the children to danger.12 For instance in Kenya in 1996 it was estimated that about 500,000 children because of family “abuse, neglect, abandonment and displacement” no longer had any contact with their original families, and instead lived as street children, orphaned, child labourers and refugees.13 Further, a new trend has become visible which shows that many of the girls in this group of children began to work as prostitutes and the boys became criminals, phenomena which before in the traditional economy and family system were rather rare or unfamiliar to people.14 The main reasons as to why children become street children in Africa are “poverty, family breakdown, child abuse and neglect, domestic violence, single parenthood, the AIDS pandemic and the weakening of the extended traditional family system”.15 In addition new values and ideas emanating from “the monetinization of the economy, formal education, Christianity, Islam, urbanization, changing expectations of marriage, social disintegration and economic deterioration” have in the context of globalization and in combination with the abovementioned reasons led to changes in the family systems and relationships and contributed to the creation of “new patterns of child abuse and neglect”.16 Examples of such new patterns of child abuse and neglect are all the children that

11

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14

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16

Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 199 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 202 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 202 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 202 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 202-203 Kearney 1996 and Suda 1993 in Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 203

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have become “orphaned by AIDS and abandoned, socially maladjusted due to the absence of one of their parents, locked up in the house without adequate food for hours when the mother goes to work or to the market, displaced and traumatized by armed conflict, imprisoned with their single mothers who are charged with petty offences, and girls who are sexually abused by their fathers because the family shares the same sleeping space”.17 Suda explains that “[i]n some way, shape or form, everyone is adversely affected by these changes and trends. But the group that has been most adversely affected is the street children.”18 A survey conducted by Suda during 1993 and 1994 of 400 street children in Nairobi revealed that some of these children did not know who their parents were or from where they came.19 In the survey some of the participating children identified their parents (98 parents) and brought the author to meet with them. While some of these children lived at home, they were sent out every day by their parents onto the streets to work and then sleep at home at night, while the other children who did not live at home also brought the author to see their parents. As soon as the interview was done, these children left their parents right away, and as Suda argued “[a]sking street children to take you to their homes is one thing, but getting them to stay there is something else”.20 Fift y-three per cent of the street children who participated in the survey were entirely on their own and did not get any family support at all, while 45 per cent had parental support, and relatives and friends provided care to 2 per cent of the children interviewed.21 In the context of the weakened extended family network and community support, the vulnerability of children increases when their basic needs of care, attention and protection cannot be properly met.

17

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21

Onyango, Suda and Orwa 1991 in Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 203 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 203 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 204: this was the Nairobi Street Children Survey, commissioned by the Child Welfare Society of Kenya (CWSK), and carried out by Suda between 1993 and 1994. Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 204 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 205-206

Street Children and Other Vulnerable Children

Most of the street children surveyed came from a home of a single mother and all the participating parents came from the Nairobi slums.22 Another finding was that most parents had more than one child as a street child, of which most were boys, with the same family most commonly having two street children.23 Further most of the children came from big families with about four to seven children, and it was mostly the older children that became street children either because of lack of resources at home or due to abuse and neglect. The appalling conditions that the street children live in was reflected by the figure that 51 per cent of the street children who did not have any place to go to for the night were found to sleep on street pavements, shop verandas, garbage dumps, in junk vehicles, tunnels, trenches and in dark alleys with nothing to sleep on or to cover themselves up in.24 The street children also have many different types of health problems as a result of them living on the streets, and from malnutrition, emotional violence, drug abuse and battery, which make them vulnerable to diseases such as malaria, scabies, coughs, colds, diarrhoea, sexually transmitted diseases and HIV/AIDS.25 Since they do not have much access to health care and family care, they are very vulnerable to disease. In the survey 46 per cent said that if they became sick they took care of themselves, 32 per cent said that other street children took care of them in such situations and for 20 per cent their families cared for them.26 As Suda explained, self-care reflects how neglected and socially isolated these children are, and that it is a coping strategy that makes the health problems of the children become worse. Because of malnutrition, poor health and delayed physical growth, the majority of the children surveyed looked smaller than their age, which also needed to be seen in the context that there were no birth certificates available.27

22

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24

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26

27

Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 206-207 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 206 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 214 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 214 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 214 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 207-208

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The street children are a diverse group belonging to different categories, where for one category it was the parents that forced 54 per cent of the children surveyed out onto the streets to earn money due to causes such as extreme poverty.28 Of this group of children most of the boys returned home at night, while many of the girls turned to prostitution. In the African context, child labour was in the traditional African society not viewed as child abuse but as part of the structure where children had many chores and responsibilities which was a way of preparing the children for adulthood, while in a modern society for a child to work in order to contribute to the family income is considered to be child labour and a form of child abuse.29 Another category of the children came from families where their parents also worked on the streets with them, and these street families are working on the streets because of issues such as poverty, homelessness and physical disability.30 A third category of these street children were born on the streets, and were the second or third generation of street children where their parents or grandparents had for part of or all of their lives been living and working on the streets.31 There has been an increase of these second and third generation street children which is to a certain extent connected to “commercial sexual exploitation, rape, homelessness, social freedom” and that street boys and girls informally become each other’s husbands and wives.32 A fourth group of the street children (5.5 per cent) had dropped out of school due to poverty where the parents could not afford high school fees, but also because of the discipline in the school system, peer influence, teenage pregnancies, misdirection and lowered expectations of the benefits of education.33 A fift h category of street children was orphans (10.8 per cent) of which most were orphaned by AIDS, which is a group that keeps increasing in numbers. Some of the children were themselves

28

29

30

31

32

33

Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 209 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 209 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 209-210 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 210 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 210 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 210

Street Children and Other Vulnerable Children

infected with HIV/AIDS and whose parents who were terminally ill had abandoned them, and this group of children usually continued being homeless.34 Suda explains that since the extended family can no longer be counted on for support, the stigma surrounding HIV/AIDS, as well as single parenthood all contribute to that many children who are AIDS orphans become street children. Furthermore, ethnic conflict, political violence and loss of contact with relatives are some of the causes to why another group of children have become street children, which the children from families that became displaced by the ethnic violence that took place in Western Kenya in 1991 and 1992 and came to Nairobi are an example of.35 There are two levels of child abuse and neglect in Kenya, the one which the children are exposed to at home and the other to which they are exposed to on the streets.36 The abusive family environment some of the children leave include the children having loveless parents, instability in the family and a sense of emotional loss because one of the parents are not present, and domestic violence.37 Suda refers to the 1991 United Nations Expert Group Meeting’s analysis on what types of violence children can experience in the family environment which range from verbal abuse, psychological/emotional abuse, sexual abuse, genital mutilation, rape, battery, prostitution, murder and economic deprivation.38 A majority of the children in the survey said that they had been exposed to physical violence in their home environment, and a few had also been exposed to emotional violence and they gave as examples of emotional abuse the neglect, manipulation or deceit by their parents or other family members.39 In Kenya most of the street children are boys, and one of the reasons for this is that in the family there is no presence of a father or male figure, and that female

34

35

36

37

38

39

Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 210 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 211 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 208 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 211 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 211 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 211

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authority is not so easily accepted by boys.40 In Kenya because of traditional beliefs and property inheritance issues, some unmarried women with male children find it difficult to find a husband, as well as if a man would marry such a single mother the male child or children might be rejected by the new husband due to these reasons.41 In some of these cases, boys are transferred to the grandparent(s) or are abandoned and as a result become street children. The abuse the street children experience while on the street comes to a great extent from the general public and the police, as the children cited harassment by the police and other law enforcement agencies as the major difficulty they experience while on the street.42 The children themselves thought that their lives on the streets were horrific, but they did not think that it would be possible to find solutions and overcome their daily challenges. In addition to the harassment by the police and law enforcement agencies, other major difficulties as cited by the children were lack of food, scarcity of waste papers, theft among themselves, lack of sleeping places, older children taking food from the younger children, low prices of waste paper, sexual abuse including rape by night watchmen and other street boys, commercial exploitation, and lack of sympathy from the public and poor health.43 Lack of food was as noted one of the major hardships according to the children, however they still shared the food they found with children from their group which was one of their coping strategies while on the streets. Most children worked within a group for economical, social and psychological reasons; since they cannot rely on a family to provide for them, they need the support of their friends which also psychologically prepares the children to deal with street life as well as it being a way for them to feel secure socially.44 In Nairobi, Kenya it has been found that one of three children who come from poor families in the urban areas are frequently being beaten or maltreat-

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Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 212 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 212 See Table 1 in Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 213 See Table 1. The major difficulties experienced by the street children, in Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 213 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 214-215

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ed by one parent or other family members, or the public or the authorities.45 In Kenya a study from 1996 showed that because of abuse, neglect, abandonment and displacement due to conflict more than half a million children did not have any contact at all with their families with the result of them becoming street children, orphans, child labourers and/or refugees.46 The difficulties of the street children show that there is no legal protection of these children or children in general, and as Suda claims that the Kenyan government and other governments must see to it that the UNCRC and the African Charter on the Rights and Welfare of the Child are being followed and implemented in this context especially with regards to the prevention and prohibition of child abuse since it correlates strongly with street children.47 Children growing up in homes where materially they are cared for still might choose to escape their home environment for the streets if they are being abused at home, while children who live in more impoverished circumstances remain at home if it is a loving environment.48 All intervention programmes for street children should include their family environment as well, including a focus on child abuse issues and poverty reduction making it possible for parents to provide for their children, because as Suda means children belong at home with their families and should not be out on the streets.49 3.1.2.

Street Children in Rwanda

According to the Consortium for Street Children, the definition of street children in Rwanda includes three categories of children:50

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Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 199 KEFAN 1996 in Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 202 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 216: in addition the children should be protected “against all forms of violence, including commercial sexual exploitation, physical abuse and child labour.” Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 215 Suda, C., Street children in Nairobi and the African Cultural Ideology of kin-based support system, Change and challenge, Child Abuse Review, Vol. 6: 199-217, 1997, p. 215-216 Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal

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Children at high risk of taking to the streets. These generally live in an urban environment and are subject to poverty, neglect or abuse within their family or household, and who lack adequate care and protection from parents, guardians or employers. They often come from broken family background (both poor and rich), and many have been rendered orphans by the genocide or HIV/AIDS. Most are illiterate, and face humiliation, verbal abuse or stress that denigrates their sense of self-worth. Children in the streets. These are the children that spend most of their day working in market places or public spaces, but who return home to their families at night. Children of the streets. The street is the closest thing to home for these children, and the place where they both work and live. They face a daily struggle to survive and secure food, money and a place to sleep. They have lost all or nearly all contact with their families, and exhibit a high level of independence and determination.

UNICEF Kigali estimated that there were about 7,000 street children in Rwanda in 2002, 3,000 of them lived in Kigali.51 About 50 per cent were between 15 and 18 years and 42 per cent slept on the streets, and about 25–35 per cent of the children said that their mother and father had been “lost”. There are several reasons as to why the children go onto the streets and in Rwanda they include the deterioration of values both within the family and society as a whole where the children do not have any role models or adult guidance anymore.52 Other reasons include family unit breakup due to divorce, parental abandonment, remarriage or polygamy, as well as much sexual and commercial exploitation of children. Additional reasons are children moving from rural areas to more urban areas, and the poverty that leads to a situation where many children are forced to work and contribute to the family income. Also reasons such as poor access to educational and health facilities factor in; for instance while enrolment at the primary school level was about 87 per cent in 2004, only 7 per cent enrolled in secondary schooling and 1 per cent in tertiary schooling. Rwanda ratified the CRC already in 1991, and after the genocide the Rwandan government has worked to find a legal framework for the protection of the rights of children and established a National Plan of Action for Children in 1997, a national Youth Council in 1998, and the national penal code now includes addi-

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Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal

Street Children and Other Vulnerable Children

tional articles to protect the rights of children in confl ict with the law.53 Children under the age of 18 are not allowed to go to bars or drinking houses without an adult. A formal network of NGOs that work with street children was created in 1998, and UNICEF together with the Rwandan government have organized several conferences on street children. The limitations and challenges involved in how to properly assist the Rwandan street children, and how to get them off the streets, are many and have been identified as:54 – – – – –

Children have become accustomed and attached to their way of life on the street and find it difficult to leave; Poor quality and inadequate resources available for both street children and the NGOs that seek to help them; Widespread household poverty across the nation; Irresponsible parents who do not hesitate to exploit their children by sending them to work, steal or beg for them; Inadequate methodologies and practices relating to the rehabilitation of street children.

The lessons learned from the work with the Rwandan street children include that it is possible to reach out to the children and to provide them with individual care at reception centres, that it is a must to stay in close contact with the children, and that the children themselves understand that they can get help, work which needs to be further developed.55 Another lesson is that the community must be engaged in order for the children to be more respected and for them to be included into the civil society.56 In this respect it was noted that work on improving tolerance towards the street children is much needed within the civil society.

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Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal Consortium for Street Children, A civil society forum for Francophone Africa on Promoting and Protecting the Rights of Street Children, 2-5 June 2004, Mbour, Senegal

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3.1.2.1.

Vulnerable Children in Rwanda After the Genocide and War Sometimes I feel that there is no one to take care of my sisters and brother, and that is why I do it. I care for them; I find food for them; I find money for school fees; I find clothing; I cultivate the land. I do all this by myself. It has become a much larger problem than I had imagined. I feel sometimes that there are certain things that an adult knows that are above my thinking.57 – Perpertue Nyandwi, 18, Rwanda

Many children in Rwanda have continued to be vulnerable in the years after the genocide such as the children in the centres for orphans, the refugee and repatriated children, the children in prison and the street children.58 In Rwanda after the genocide the number of street children rose very fast as a result of the conflict and massive displacement of people, and poverty and family abuse have not been the sole causes of the street children phenomenon.59 A study examining the effects of the genocide in Rwanda 1994 and the many street children was carried out between July–September 1997 in four regional towns three years after the genocide.60 Of all the children surveyed, 13 per cent had been street children before the genocide that began in April 1994, and 87 per cent of them had become street children following the genocide of which 49 per cent became street children right after 1994, and 38 per cent following the repatriation of refugees in November 1996.61 The guardian of the child and the child’s reason for being on the street predicted homelessness the most, and there was a considerably lower risk for the child to become homeless if the child had their mother as a guardian in contrast to if the child had no guardian at all, or had the father, sibling or any other as a guardian.62 It was further found that there was a 57

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No Home Without Foundation: A Portrait of Child-Headed Households in Rwanda, March 1997, in Women’s Commission for Refugee Women and Children, Untapped potential: Adolescents affected by armed conflict, 2000, p. 44 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 254 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 254 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 254 and 258 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 254 and 260 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p.

Street Children and Other Vulnerable Children

higher risk for the child to become homeless if there was disharmony in the family or in the guardian’s home, if a child had left the countryside to move to the town, if a child had become jobless, or found street life attractive; poverty was not the main reason for the child to become homeless and live on the streets.63 Veale and Donà argue that because of the civil conflict and the socio-cultural changes that followed, the profi le of the Rwandan street child differs from the profi le of street children in the rest of Africa in several ways.64 The Rwandan street child after the civil war and genocide has been foremost adolescent boys, of which 87 per cent had ”left their hill of origin” following the genocide, of which 42 per cent were homeless, and 67 per cent had lost at least one parent. Issues that were different for the Rwandan street child after the genocide compared to other African countries was that a very high number of children slept on the streets, that the street child was older than in other countries and that the disruption of the social networks had consequences on the “immediate and extended care systems” because of the death, imprisonment or exile of the parents and relatives.65 Other differences that were particularly different for Rwanda included the high number of orphans (being 33 per cent of the children surveyed), and that 44 per cent of the children who slept on the street had no family in that they did not have any parents or guardians (they were “family less”).66 The most important social consequence of the genocide was on the structures of the family, as so many children lost their parents and were put into complex alternative guardianship arrangements. Studies have shown that many children in Rwanda as a result have been dealing with issues of identity, grief, loss and the child’s position in the family.67 Also it was found that a few children in guardianship care did not feel loved and wanted when they were being punished.

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262 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 262 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 263-264 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264 Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264 Donà et al., 2001, Veale et al. 2001 in Veale, A., Donà, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264

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Another important distinguishing factor was that about 50 per cent of the street children were 15 years or older, and that most of them were male.68 That the children were older posed a problem with reintegrating these children into their communities and finding a foster home for them as it was easier to find a place for girls and younger children.69 Here inheritance rights, people’s worries about how the boys would behave, and how these older boys were to become dependent in a new family were reasons why it was difficult to find foster families for these boys. Other issues were that the paternal support networks were destroyed along with the traditional patriarchal structure of Rwanda, since so many men either died in the genocide or were imprisoned afterwards.70 This led not only to that many women became the heads of households, but also that many children became heads of households and this was another reason why adolescent boys in particular became street children. At the time, the family laws in Rwanda held that it was the paternal uncles that were to take care of the children from the first marriage if the mother remarried, and thus the responsibility to care for the children from the first marriage did not fall onto the new husband.71 These kinds of laws have led to a situation where many adolescent boys left their homes and began to fend for themselves. Because of the large displacements, relocations and resettlements of millions of people after the genocide, the demographic and social structure went through deep changes, with considerable material, socio-cultural and psychological consequences as a result.72 As Veale and Donà argued, these demographic changes had consequences for the street children such as “what is “home”, what constitutes “family”, and what is “community?”, as many of these children did not have a home and family anymore, or “no where they want to go to”.73 Because

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Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 264 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265

Street Children and Other Vulnerable Children

of the many atrocities committed and the experiences the children went through during the genocide, some adolescents might as a result choose not to either remain or return to their home communities because of issues such as “lack of identification with and trust in the community”.74 The government’s approach to helping the street children has been similar to how assistance have been provided for children in emergencies and for the unaccompanied children following the genocide, placing them in a residential centre where they would get an education and wait to be reunited with their parent(s) or extended families.75 For instance in 1998 at a conference the main solution proposed with regards to how to best help the homeless street children was to reunify and reintegrate them with their family or extended family, and this needs to be seen in the context of a study that showed that 67 per cent of the street children surveyed preferred to stay in a centre, 31 per cent in a family and 2 per cent wanted to remain on the street.76 In this context the significant issues are as Veale and Donà argued “reunification” with whom, and “social reintegration” to what structures?77 This study on the Rwandan street children showed that following an armed conflict in the post-conflict environment it is necessary to continue considering the situation for those children who have been placed in different guardianship care, and to develop ways to reintegrate male adolescent street children back into the community which requires a different approach than with younger children which needs to be acknowledged.78 In Rwanda 42.1 per cent of the total population is under the age of 15 years, 55.2 per cent are between 15–49 years and 2.7 per cent are 65 years old and older.79 Rwanda is one of the poorest countries in the world where the GDP per capita in 2007 was USD 250. One of the most difficult practical challenges in dealing with the HIV epidemic has been the lack of qualified health professionals, in a coun74

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Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265 For the study see Munderere 1996 in Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 265-266 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 266 Veale, A., Dona, G., Street children and political violence: a socio-demographic analysis of street children in Rwanda, Child Abuse & Neglect, 27 (2003), 253-269, p. 266 Millennium Development Goals, MDG, Country Report, 2007 in UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 14

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try where there has been one doctor for every 50,000 people, and for every 3,900 people there has only been one nurse.80 The rural areas have least access to qualified health professionals. The HIV prevalence rate in the general population has declined between 1998–2005, also among urban women who still have a higher prevalence rate than the rural women.81 Kigali had the highest HIV prevalence rate with 12.8 per cent. Women have a higher HIV prevalence rate with 3.6 per cent than men with 2.3 per cent, with 15–19 year old women with 3.7 per cent, 20– 24 year old women with 3.5 per cent, and the women between 30–34 years having the highest prevalence rate between 4.9 per cent and 6.8 per cent.82 Women living with their parents have a higher HIV prevalence rate than married women, and educated women also have a higher HIV prevalence rate with 6.9 per cent compared to women with no education except for in Kigali. In Rwanda there were by 2005 about 1,350,820 orphans and other vulnerable children (OVC) ranging from 0–17 years old.83 About 224,288 of these children between the ages of 0–14 years of age had lost one or both parents to HIV/ AIDS as estimated in 2006. The government has allocated about 20 per cent of the Genocide Survivals Fund to education for especially school fees for the OVC who have been infected or affected by HIV/AIDS.84 Orphans have been very vulnerable within the education system, since many households with orphans have been unable to pay for their schooling and as a result they have not attended school, with the children of the child-headed households being the most vulnerable.85 Of the children aged between 10–14 years, 91 per cent of the children who have both parents alive and who live with one of their parents go to school, while only 75 per cent of the children who have lost both parents go to school.86 The OVC’s difficulties include their living conditions, problems with accessing education and psychological distress. The situation has been that 87 per cent of the households who take care of OVC have not been given any support from outside sources, while 12.6 per cent of households with OVC

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UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 14 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 14 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 15 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 16 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 20 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33

Street Children and Other Vulnerable Children

aged between 0–17 years have gotten some basic support for free, and less than 1 per cent of these households “receive all three types of recommended support”.87 Rwanda adopted in May 2007 a Strategic Plan for OVC 2007–2010, and as a result “a specific political body for the protection of orphans” was set up.88 The purpose with the plan was to identify where public services and NGOs could best offer assistance and link needs with types of assistance. As a result a OVC support minimum package was created and the various intervention partners streamlined their work. The support package included prevention of mother-to-child transmission, HIV prevention services and voluntary counselling and testing services, nutrition, formal and non-formal education, psychosocial and socio-economic support.89 An administrative decentralization process in the country was to support a follow-up process with regards to the provision of help to the OVCs. As a minimum one of the services offered in the package was available for 292,609 OVCs in 2006, and at the end of 2006, 258,934 OVCs received help to go to school by having their school fees and educational material paid for.90 However support and care and HIV treatment was still low for the children. In Rwanda other vulnerable children than OVCs remained unaccounted for, and still only about 0.2 per cent of OVC households got any medical, emotional, social/material and educational support by 2007.91 The Minimum Standards for Care, Protection and Support for OVC encompass: “psychosocial support, economic empowerment of the household, basic education (formal and non-formal), protection against all forms of abuse, violence and exploitation, and access to health and nutrition”.92 The UN General Assembly adopted resolution 64/226 “Assistance to survivors of the 1994 genocide in Rwanda, particularly orphans, widows and victims of sexual violence” on March 2, 2010, where it recognized that the orphans, widows and victims of sexual violence of the 1994 genocide belong to the most vulnerable groups still requiring much assistance as they have become “poorer and more vulnerable as a result of the genocide”.93 In the resolution the General 87 88 89 90 91 92 93

UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33 UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33 UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33 UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 33 UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 70 UNGASS, Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 70 United Nations General Assembly, Resolution adopted by the General Assembly, 64/226. “Assistance to survivors of the 1994 genocide in Rwanda, particularly orphans, widows and victims of sexual violence,” A/RES/64/226, 2 March, 2010

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Assembly requested that the Secretary-General encourage the same different agencies, funds and programmes of the UN system that he had been requested to encourage in the GA resolution 59/137 of 2004, so that they would continue developing and implementing programmes for the most vulnerable groups suffering from the genocide in cooperation with the Rwandan government. In resolution 64/226 of 2010 the assistance should specifically be given to education for orphans, medical care and treatment for victims of sexual violence, including HIV-positive victims, trauma and psychological counselling, and skills training and microcredit programmes aimed at promoting self-sufficiency and alleviating poverty. The General Assembly also requested of the Secretary-General that the programme “The Rwanda Genocide and the United Nations” on genocide victim remembrance and education be continued with the purpose of preventing genocide in the future, as well as that efforts to support the improvement of the judicial capacity-building and victim support in Rwanda be taken in cooperation with the Rwandan government. 3.2.

Adolescents as Other Vulnerable Children, Orphans and HIV/AIDS

Edström and Khan have pointed out the invisibility and exclusion of adolescent children aged 15–18 years in HIV/AIDS programming and interventions which tend to focus solely on Other Vulnerable Children (OVC) aged 15 years and younger.94 As they argue, many of the OVC are adolescents aged 15–18 years who have their own particular needs and vulnerabilities, as they are also the age group that starts to engage in sexual activities. It has been reported by UNAIDS in 2008 that 45 per cent of all new HIV infections take place among the youth aged 15–24 years.95 In 2007 about 2.5 million children were thought to have HIV worldwide, while in 2001 it was about 1.5 million.96 These estimates only cover HIV-positive children under the age of 15, of which about 90 per cent are living in sub-Saharan Africa. Thus children between 15–18 years of age are not included in these numbers which means that the actual number of infected children is unknown and most certainly underestimated.97 Edström and Khan means that a great number 94

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Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 41 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 41 Note 2, Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 48 Note 2, Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Vol-

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of the policies and programmes developed for orphans, vulnerable children or children affected by HIV/AIDS (CABA) “fail to recognise that many of these children are adolescents who need skills and means to protect their sexual and reproductive health as well as their longer-term personal prospects”.98 The adolescent children who live in HIV/AIDS affected households are many times “deeply affected, poor and socially isolated”, and they belong to the most vulnerable groups of adolescents who are at risk of becoming infected by HIV, thus “embodying an intergenerational process of reproduction of the epidemic itself”.99 There are also indications that adolescents who are infected with HIV do not as often as nonaffected adolescents go to school.100 Another issue is that some children affected by HIV drop out of school many times due to economic reasons, and that they are also concerned about being discriminated against by their teachers, friends as well as by their community. In this context it has been recognized that education is a crucial factor in helping to decrease the risk of children to become infected by HIV.101 The adolescents need support and guidance, and it is important to note that social groups such as youth groups are important fora for engaging youth also for issues concerning adolescent public health and HIV/AIDS, but that in the absence of such organizations many times “gangs” might be the only available social organization for some vulnerable and at risk children.102 In the context of child protection it is necessary to find ways to reach out to the adolescents who live in a “context of risk”, such as having parents engaging in prostitution and/ or are taking drugs where concerns about “legality” can be a factor to consider.103 Issues such as social inclusion and how it relates to “education, community action, welfare and child protection” all need to be part of a “context-specific and ume 40, Number 1, January 2009, p. 48 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 41 99 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 42 100 QAP et al. 2008 in Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 44 101 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 44 102 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 46 103 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 46-47 98

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structural analysis”, as advocated by Edström and Khan, when developing HIV prevention programs for adolescents, and those children most at risk of being infected with HIV need to be identified and become visible, and they should be able to be involved and heard when developing any intervention concerning them.104 In the context of very high levels of community violence, it has been shown in a study in South Africa that AIDS related stigma risks having a significant impact on the mental health of adolescents who have become orphaned by AIDS105 The children and adolescents who took part in the study were between 10–19 years and came from Cape Town, and were living in the city’s impoverished urban areas with weak infrastructure, and where the violent crime rate was high, and stigma linked to AIDS was common.106 The children themselves and their caregivers thought that “bullying, AIDS-related stigma, witnessing or experiencing community violence, and a lack of sports and other activities” all had an impact on their mental health.107 The study revealed that the adolescents who had become orphaned by AIDS clinically scored above-normal levels for internalizing distress (such as depression) for their age group, and that they were at a high risk of developing depression, peer problems, posttraumatic stress, delinquency and conduct problems, and that the stigma they experienced was significantly related to depression, posttraumatic stress, conduct problems, and delinquency and a weaker but still strong link to peer problems.108 As a result, in order to reduce AIDS-orphaned adolescents’ psychological problems related to their being orphaned by AIDS, any intervention should first recognize that they encounter stigma and that this has consequences for their mental health and thus include efforts to reduce the level of stigma that they encounter.109 These interventions need

104 Edström, J., Khan, N., Perspectives on Intergenerational vulnerability for adolescents affected by HIV: An argument for voice and visibility, IDS Bulletin, Volume 40, Number 1, January 2009, p. 47 105 Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 415 106 Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 411 107 Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 411 108 Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 410 and 415 109 Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 415

Street Children and Other Vulnerable Children

also address the economic difficulties these adolescents live under, and increase their educational opportunities, as well as give assistance to their caregivers.110

110

Cluver, L., D., Gardner, F., Operario, D., Effects of stigma on the mental health of adolescents orphaned by AIDS, Journal of Adolescent Health 42 (2008) 410-417, p. 416

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Providing Education in Armed Conflict

In the midst of conflict, education can be life-sustaining and lifesaving. It is the basic right of every girl and boy, vital for their enjoyment of all other human rights and critical to the future of any society. – Vernor Muñoz, former UN Special Rapporteur on the Right to Education1 States are mandated to meet the right to education at all times and in all circumstances. – Background note: The interactive thematic dialogue of the UN General Assembly on access to education in emergency, post-crisis and transition situations-caused by man-made confl icts or natural disasters, 18 March 2009 OCHA reported in March 2011 that in Côte d’Ivoire: “Education in acutely compromised because of political tensions between students, and that since January 2011 about 4,000 have lost their school material due to violence.”2 As of March 2011 about 800,000 school children all over the country could not go to school because of the violence.3 I knew from the start that – in order to recover and build peace – we needed to invest in education. A generation of children had never had the chance to go to school, and the quality of education had deteriorated because most teachers had

1

2

3

Background note: The interactive thematic dialogue of the UN General Assembly on access to education in emergency, post-crisis and transition situations-caused by man-made conflicts or natural disasters, 18 March, 2009, www.reliefweb.int/rw/ rwb.nsf/db900SID/SNAA-7QA7PH?OpenDocument Sesay, Terence, Effects of crisis-Ivorian confl ict affects health, education, agriculture and economy, African Press International, March 1, 2011, www.africanpress.word. press.com/2011/03/01/effects-of-crisis-ivorian OCHA, Côte d’Ivoire, Electoral Violence and Displacement, March 10, 2011, www. reliefweb.int/rw/rwb.nsf/RKRR-8EURRZ?open

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left the country. Restoring the education system thus became a key priority of our development agenda. – Ellen Johnson Sirleaf, President of Liberia. Liberia experienced 14 years of civil war.4

Today’s conflicts continue for 10 years on average and the average time span for children and their families living in internally displaced camps are about 17 years.5 In several conflict countries there are generations of children and adults who have not received any formal education because education has not been viewed as a basic service.6 It is said that only about 30 per cent of all the world’s refugee children receive an education. It is within this context that providing education to children in armed conflicts is increasingly becoming recognized as both a source of protection and as a vital part of development.7 However, the international donor community still continues to prioritize food, water, medical assistance and shelter in its humanitarian response and regards the providing of quality education as secondary.8 There are several reasons why the donor community has not been willing to provide funding for education in emergencies. One reason is that they do not view funding of education to be life-saving, and raise concerns about whether investing in the midst of destruction is practically viable, as the infrastructure of schools and the body of teachers are being detrimentally impacted by the war.9 Further, most in the donor community view education as a development task and not something that should be provided for on an on-going basis without disruption even by an armed conflict or natural disaster. If the donor governments include education in their humanitarian response, it is provided on a short-term basis for specific projects and not for the long-term where the stage of emergency is linked to development.10

4 5 6 7 8 9 10

Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. v Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 1 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 5 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 1 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 2, 16 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 2 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 2

Providing Education in Armed Conflict

4.1.

Providing Education in Armed Conflict and Emergency Situations as a Human Right

All children have the right to have an education according to Article 28 of the UN Convention on the Rights of the Child (UNCRC).11 That means every child including children living in countries or areas of armed conflict. As Save the Children argues, “[e]ducation is a basic human right, even during conflict”.12 All states parties to the UNCRC have the obligation to provide primary education that is both compulsory and free, and as Article 28 of the UNCRC states: 1.

2.

3.

States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering fi nancial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

Furthermore in Article 29 of the UNCRC it is stated: 1.

11

12

States Parties agree that the education of the child shall be directed to:

Convention on the Rights of the Child, Art. 28, (a), Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November, 1989, entry into force 2 September 1990, in accordance with article 49. Save the Children, Last in Line, Last in School, How donors are failing children in conflict-affected fragile states, 2007, p. v

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(a)

2.

The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

With the adoption of the Universal Declaration of Human Rights in 1948 the member states of the United Nations agreed that everyone has a right to education, as it is stated in Article 26 of the Declaration: (1)

(2)

(3)

Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children.

The International Covenant on Economic, Social and Cultural Rights of 1966 establishes in its Article 13 a clear right to education for everyone, and that it is an obligation for states parties to provide free primary education that is to be compulsory for all:13

13

Article 13, International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolu-

Providing Education in Armed Conflict

1.

2.

The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. […] The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; …

In terms of international humanitarian law, the Fourth Geneva Convention of 1949 in its Article 24 states that the parties to a conflict (international) have the obligation to ensure that “children under fifteen, who are orphaned or separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.” In Article 52(1) of Protocol I of 1977 it is stipulated that “[c]ivilian objects shall not be the object of attack or of reprisals”, and a civilian object is a school (Article 52(3)). However, it is also stipulated in Article 52(1) that “[c]ivilian objects are all objects which are not military objectives as defined in paragraph 2”, and in paragraph 2 it is stipulated that “[a]ttacks shall be limited strictly to military objectives” and that “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. This means that in certain circumstances a school can legally be used as a military objective if all conditions are fulfi lled; however it is stipulated in Article 52(3) that “[i]n case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used”. A similar provision with regards to schools does not exist in Protocol II to the Geneva Conventions where apart from protection of medical and religious personnel (Article 9), protection of medical duties (Article 10) and protection of the civilian population (Article 13) only protection of medical duties (Article 10), of medical units and transports (Article 11), of protection of objects indispensable to the survival of the civilian population (Article 14), of works and installations containing dangerous forces (Article 15), and of cultural objects and of places of worship (Article 16) are being tion 2200A(XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27

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mentioned. In terms of education, in Article 4(3)(a) of Protocol II it is stated that children “shall receive an education including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care”. Further, the Refugee Convention of 1951 in its Article 22(1) states that “the Contracting States shall accord the refugees the same treatment as is accorded to nationals with respect to elementary education”. However, it is a war crime in both international and non-international conflicts to intentionally direct attacks against buildings dedicated to education “provided they are not military objectives”, according to Article 8(2)(b)(ix) for international conflicts and 8(2)(e)(iv) for armed conflicts not of an international character of the Rome Statute of the International Criminal Court which is significant since as noted Additional Protocol II to the Geneva Conventions does not make a specific mentioning of schools or buildings dedicated to education. Unaccompanied and separated children who have become displaced outside of their country of origin’s borders still retain their human right to receive an education in accordance with Article 28 of the UNCRC. As the Committee on the Rights of the Child has stated in its General Comment No. 6 (2005) on unaccompanied and separated children:14 States should ensure that access to education is maintained during all phases of the displacement cycle. Every unaccompanied and separated child, irrespective of status, shall have full access to education in the country they have entered in line with articles 28, 29 (1) (c), 30 and 32 of the Convention and the general principles developed by the Committee.

The African Charter on the Rights and Welfare of the Child (ACRWC) has the most comprehensive provision on education compared to any other international document, and thus provides more protection.15 Its Article 11 on education has a long list of measures that states parties are obliged to implement beginning with in Article 11(1) that “[e]very child shall have the right to an education” and that the education is to be directed to promote and develop the child’s personality, talents and mental and physical abilities, Article 11(2)(a). The provision states that the children shall be educated to respect human rights and fundamental freedoms referring in particular to different African human rights and peoples’ rights instruments as well as international human rights declarations and conventions, Article 11(2)(b). Also, the provision makes reference to the African multicultural context and states that a child’s education is to preserve and strengthen positive African morals, traditional values and cultures and states that the education is to 14

15

The CRC Committee, General Comment No. 6 (2005), Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, 1 September, 2005, p. 14, para. 41 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38

Providing Education in Armed Conflict

be given “in the spirit of understanding, tolerance, dialogue, mutual respect and friendship among all peoples ethnic, tribal and religious groups”, Article 11(2) (c) and (d). Chirwa has importantly noted that in the context that ethnicity and religion have been major factors in many armed conflicts in Africa, the notions of understanding, tolerance and friendship of peoples are of specific significance as education can play an important role in building peaceful and tolerant societies.16 Education is also to be provided in a way that promotes the achievements of African unity and solidarity as well as develops respect for the environment and natural resources, Articles 11(2)(f) and (g). That the states parties to the Charter have the obligation to provide free and compulsory education is provided for in Article 11(3), and it takes up the fact that many children do not go to school on a regular basis in the African countries, in addition to the problem of high drop-out rates in many of the countries: 3.

States Parties to the Present Charter shall take all appropriate measures with a view to achieving the full realization of this right and shall in particular: (a) provide free and compulsory basic education; (b) encourage the development of secondary education in its different forms and to progressively make it free and accessible to all; (c) make the higher education accessible to all on the basis of capacity and ability by every appropriate means; (d) take measures to encourage regular attendance at schools and the reduction of drop-out rates;

Article 11(3)(e) brings up social issues that appropriate state action can remedy, in that states parties are obliged in to “take special measures in respect of female, gifted and disadvantaged children, to ensure equal access to education for all sections of the community”, which means that the state should actively implement changes to protect the right to education for these children.17 As has been noted elsewhere, the Charter in its Article 11(5) also has a provision that actually accepts corporal punishment by parents and teachers as long as the dignity of the child is respected: 5.

16

17

States Parties to the present Charter shall take all appropriate measures to ensure that a child who is subjected to school or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the present Charter.

Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 162 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38

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In addition, in Article 11(6), the states parties are under the obligation to ensure that education is provided to young girls who become pregnant before they have completed their education as well as to ensure that these girls do not have to interrupt their education but will be able to continue with their education according to their individual capacity:18 6.

States Parties to the present Charter shall have all appropriate measures to ensure that children who become pregnant before completing their education shall have an opportunity to continue with their education on the basis of their individual ability.

This means that if a girl gets pregnant she cannot be discriminated against, and that the state has the obligation to ensure her right to an education.19 The African Protocol on Women’s Rights (Maputo Protocol) recognizes that many African girls are exposed to sexual abuse and sexual harassment at school by teachers and/or students, and the Protocol in its Article 12(1)(c) prohibits sexual abuse and sexual harassment at school.20 The Protocol in its Article 12(1)(c) obliges states parties to punish the perpetrators for such abuse and thus moves away from the utter exposure and blaming of the girls and acknowledges that many girls have had their education disrupted this way, while the perpetrators have been free to continue to study or teach.21 Article 12 (1)(c) of the Protocol reads:22 Article 12 Right to Education and Training: 1.

States Parties shall take all appropriate measures to: … c)

18 19 20 21 22

protect women, especially the girl-child from all forms of abuse, including sexual harassment in schools and other educational institutions and provide for sanctions against the perpetrators of such practices;

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 79- 80 Banda, F., Blazing a Trail: the African Protocol on Women’s Rights Comes into Force, Journal of African Law, 50, 1 (2006), 72-84, p. 80 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 12

Providing Education in Armed Conflict

The Inter-American Court on Human Rights has in the Advisory Opinion on the Juridical Condition and Human Rights of the Child stated that the right to education:23 contributes to the possibility of enjoying a dignified life and to prevent unfavourable situations for the minor and for society itself, stands out among the special measures of protection for children and among the rights recognized for them in Article 19 of the American Convention.

The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, specifically provides for the right to education in Article 13 stating:24 1.

Everyone has the right to education.

Furthermore, the states parties have agreed that: 2.

… education should be directed towards the full development of the human personality and human dignity and should strengthen respect for human rights, ideological pluralism, fundamental freedoms, justice and peace …

For the states parties to ensure the right to education for all, including special education for the disabled, they are obliged to offer free primary education despite their means, but when it comes to secondary and higher education states parties are to use a “progressive introduction” in order to implement these rights Article 13(3): (a) (b)

(c)

23

24

Primary education should be compulsory and accessible to all without cost; Secondary education in its different forms, including technical and vocational secondary education, should be made generally available and accessible to all by every appropriate means, and in particular the progressive introduction of free education; Higher education should be made equally accessible to all, on the basis of individual capacity, by every appropriate means, and in particular by the progressive introduction of free education;

Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, Juridical Condition and Human Rights of the Child, para. 84 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, Adopted 11/17/88, entered into force 11/16/99.

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(d)

(e)

Basic education should be encouraged or intensified as far as possible for those persons who have not received or completed the whole cycle of primary instruction; Programs of special education should be established for the handicapped, so as to provide special instruction and training to persons with physical disabilities or mental deficiencies.

It is not quite clear how the right to primary education for children who have lost out on education or have had their education disrupted for instance because of war, such as in Colombia, can demand that their right to education will be ensured as the provision only requires the states parties to encourage or intensify that such education be provided for such children. Article 13(4) of the Protocol also gives the parents the right to choose which type of education they want to provide for their children as long as that kind of education is in conformity with the principles of the Article. Being in an armed conflict or in an emergency situation does not take away the responsibility of a government to provide education to its citizens.25 Instead the emergency situation gives the international community an opportunity to provide educational assistance when the government is neither capable nor willing to do so. The Dakar Framework for Action of 2002 which established the goal of achieving Education for All (EFA), stipulates that “no countries seriously committed to education for all will be thwarted in their achievement of this goal by a lack of resources”.26 Within the framework of EFA access to a quality education is considered to be a basic human right for children affected by armed conflict or natural disasters.27 The World Bank has taken the lead in education policy dialogue and programme implementation at an international level, as well as at national levels.28 The World Bank has made education a priority in its work on reducing poverty and states “that education is one of the most powerful instruments for reducing poverty and inequality and for laying the basis for sustained economic growth”.29 Furthermore, the World Bank has reported that investing in education and especially in girl’s education “is the single most effective intervention that countries 25 26 27

28 29

Nicolai, S. and Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 2 Save the Children, Last in Line, Last in School, How donors are failing children in conflict-affected fragile states, 2007, p. 4 Committee on the Rights of the Child, Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, 19 September 2008, p. 22, para. 110 Save the Children, Last in Line, Last in School, How donors are failing children in conflict-affected fragile states, 2007, p. 26 The World Bank, Education, Overview, p. 1 of 2 and Priorities and Topics, p. 1, 2007, http://web.worldbank.org/WEBSITE/EXTERNAL/TOPICS/EXTEDUCATION/O

Providing Education in Armed Conflict

can make to improve human development”, and that on the opposite side attacking girls’ schools in particular negatively impacts on the development of a country.30 The World Bank works on assisting governments to include education into national economic strategies and policies, and to assist governments to achieve EFA, one of the Millennium Development Goals (MDGs) to be reached by 2015.31 However, while the accomplishments by the World Bank have been noted by the former United Nations Special Rapporteur on Education, Mr. Vernor Muñoz, he has also remarked that there are limits to the World Bank’s approach as the World Bank has not worked within the human rights framework.32 He has pointed out that the World Bank has mainly worked to in the reconstruction stages after emergencies to support education, and that it “identifies with the utilitarian concept of education as a tool for economic development, since it considers it only as a major factor in the achievement of the Millennium Development Goals”.33 This he meant has shown a level of “disregard for the Education for All agenda” taken together with the World Bank’s “narrow focus on primary education”.34 Since many conflicts are on-going for long periods of time, many children spend their whole childhood in armed conflict. Within that context of disrupted education, many children are entirely left out of school and do not learn how to read and write. This has led to that in conflict affected countries many students

30 31

32

33

34

O’Malley, B., Education under Attack 2010, UNESCO, p. 28 World Bank, Education, Overview, p. 1 of 2 and Priorities and Topics, p. 1, 2007, http://web.worldbank.org/WEBSITE/EXTERNAL/TOPICS/EXTEDUCATION/O: The World Conference on Education for All (EFA) in 1990 made basic education universal for all children and reducing illiteracy main goals; The U.N. General Assembly adopted the Millennium Development Goals on September 6, 2001 which included providing universal primary education and gender parity in education primary goals to be achieved by 2015, see Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 2 Muñoz, V., United Nations, General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/HRC/8/10, 20 May, 2008, p. 18, para. 81 Muñoz, V., United Nations, General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/HRC/8/10, 20 May, 2008, p. 18, para. 81 Muñoz, V., United Nations, General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/HRC/8/10, 20 May, 2008, p. 18, para. 81

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are older than the average age when they finally begin school.35 For instance, following 14 years of war, 60 per cent of the students in Liberia were above-average age when they enrolled in primary school.36 High drop-out rates are often the result. Also, maintaining funding for education is going to be harder when conflicts are prolonged, as many governments in war prioritize the cost of wars to the detriment of education for children.37 Also, many teachers and professors must flee, and as a result there is both a gap with regards to the number of teachers left, and a quality gap. Further, because of lack of funding many teachers do not get paid because the government cannot pay or ceases to function. This has led to in some cases that parents need to pay a minimum fee to let their children go to school, which many parents cannot afford in a conflict environment where many people are unemployed and poverty is rampant. Mr. Muñoz stated that in emergency situations donors overlook the fact that children have a right to education and as a result do not provide funding for education.38 He further has pointed out that even though it has become increasingly difficult to ignore the consequences of armed conflict and natural disasters, donors have cut programmatic principles and funding for education.39 Mr. Muñoz has also underlined that the World Conference on Education for All changed the language for education in emergency situations for children to be viewed as first of all as being part of the human rights agenda and not the development agenda.40 In this regard he has noted concerning how donors prioritize education that the international community was “tolerant of violations of the right to education in emergencies”, and that education was viewed as “a facet of development rather than a humanitarian activity, and even less a human right”.41 He meant that by addressing the right to education like that, the countries had “fallen short of the

35 36 37 38

39

40

41

Save the Children, Rewrite the Future, 2006, p. 6 Save the Children, Rewrite the Future, 2006, p. 6 Save the Children, Rewrite the Future, 2006, p. 6 Committee on the Rights of the Child, Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, 19 September 2008, p. 3 Committee on the Rights of the Child, Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, 19 September 2008, p. 3 Committee on the Rights of the Child, Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, 19 September 2008, p. 4 Muñoz, V., United Nations, General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/HRC/8/10, 20 May, 2008, p. 15, para. 68

Providing Education in Armed Conflict

responsibility enshrined in the international instruments which define the nature and the content of the right to education”.42 Mr. Muñoz, has also underlined that the UNCRC obligates all governments to guarantee without any discrimination access to education to all children living within their borders.43 He said that it is especially in times of emergencies and armed conflict that special attention is required in order to be able to guarantee the right to education of children. Furthermore, with regards to Articles 4 and 28 of the UNCRC concerning the principle of the necessity of international cooperation to implement this right, he meant that this principle has not been completely and clearly translated into concrete political responsibilities by the international community, which needs to be done.44 He made a reference to the Dakar Document which states that “no country that is seriously invested in providing education for all, can be hindered by a lack of resources”, arguing that education is the one issue that cannot be conferred to the development agenda, but needs to be conferred to the human rights agenda.45 Mr. Muñoz argued that in times of emergencies and conflict, the governments have the obligation to secure the right to education, and there are a number of actors that can be asked to help such as national and international organizations and agencies, NGOs and different donors.46 He continued that there was a 42

43

44

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Muñoz, V., United Nations, General Assembly, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/HRC/8/10, 20 May, 2008, p. 15, para. 68 Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 4, Text translated from Spanish by author Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 5, Text translated from Spanish by author Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 5, Text translated from Spanish by author Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 5, Text translated from Spanish by author

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need for a change in the mind-set of the international donor community because when deciding on the priorities for funding, funding for education has not been prioritized at all as for instance in 2007 only 1.7 per cent of the total international humanitarian aid was marked for educational programmes. He has further noted that the most marginalized groups in countries of emergencies or conflicts, such as people affected by HIV/AIDS, ethnic minorities, indigenous communities, migrant communities, IDPs, experience a double and multiple discrimination.47 In this regard, the crisis offers an opportunity to establish quality education for all, including for those who have been marginalized before the humanitarian crisis or conflict.48 Mr. Muñoz recommended that the international donor community should include in their humanitarian assistance a minimum of 4.7 per cent of the total aid provided to be marked for education.49 The period when it is most likely that the worst violations of the right to education take place is from the time of the early response to an emergency all through the initial stages of reconstruction.50 4.2.

The World Declaration on Education for All, Jomtien, 1990

The World Declaration on Education for All: Meeting Basic Learning Needs was adopted in Jomtien in Thailand at the World Conference on Education for All in March 1990, and was the starting point for the global movement on actually realizing education for all by making it an achievable goal.51 The conference came about as a response to a recognition that a huge number of children, women and men still did not have access to education and remained illiterate, even as it was 47

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Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-Made Confl icts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 6-7, Text translated from Spanish by author Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 7, Text translated from Spanish by author Muñoz, V., Statement by the Special Rapporteur on the Right to Education, Interactive thematic dialogue of the U.N. General Assembly on: “Access to Education in Emergency, Post-crisis and Transition situations-caused by Man-made Conflicts or Natural Disasters”, Trusteeship Council Chamber, UN Headquarters, New York, 18 March 2009, p. 7-8 (a), Text translated from Spanish Background note: The interactive thematic dialogue of the UN General Assembly on access to education in emergency, post-crisis and transition situations-caused by man-made conflicts or natural disasters, 18 March 2009 Preamble, World Declaration on Education for All: Meeting Basic Learning Needs, the World Conference on Education for All, Jomtien, Thailand, 5 to 9 March, 1990

Providing Education in Armed Conflict

40 years ago that the Universal Declaration of Human Rights was adopted which stipulates that “everyone has a right to education” which was referred to in the preamble to the Declaration. Instead it was noted in the preamble that more than 100 children of which at least 60 million were girls did not have any access to primary education, that more than 960 million adults of which two-thirds were women could not read or write, that more than one-third of all the world’s adults did not have any access to printed knowledge, new skills or technologies and that more than 100 million children and “countless” adults were not able to finish basic education programmes and that millions more that actually attended school did not obtain the necessary knowledge and skills.52 This Declaration put forward ten articles constituting commitments that were in need of being fulfilled in order to achieve education for all. Recognizing that challenges such as war, occupation, civil strife and violent crime impeded the provision of education, the Declaration made no distinction between conflict or non-conflict affected countries in terms of providing education, as it was clearly stipulated that “basic education should be provided to all children, youth and adults”, and that the governments were to make an active commitment to remove educational disparities and that underserved groups such as refugees, those displaced by war and people under occupation “should not suffer any discrimination in access to learning opportunities”.53 Guaranteeing access to and improving the quality of education of girls and women was to be “the most urgent priority”.54 The Declaration moreover stipulated with regards to armed conflict that “[a]ll nations must also work together to resolve conflicts and strife, to end military occupations, and to settle displaced populations, or to facilitate their return to their countries of origin, and ensure that their basic learning needs are met”.55 The premise for the ten articles that were set out was an acknowledgement by the participants that “education is a fundamental right for all people, women and men, of all ages, throughout our world” as recalled in the preamble, with the ten articles stipulating: Article 1 ‘Meeting basic learning needs’ stated that: “every person-child, youth and adult- shall be able to benefit from educational opportunities designed to meet their basic learning needs”; Article 2 ‘Shaping the Vision’ stated that: “To serve the basic learning needs of all requires more than a recommitment to basic education as it now exists. 52

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Preamble, the World Declaration on Education for All: Meeting Basic Learning Needs, the World Conference on Education for All, Jomtien, Thailand, 5 to 9 March, 1990 Preamble and Article 3 (1) and (4), Universalizing Access and Promoting Equity, World Declaration on Education for All: Meeting Basic Learning Needs, Jomtien, 1990 Article 3 (3), Universalizing Access and Promoting Equity, World Declaration on Education for All: Meeting Basic Learning Needs, Jomtien, 1990 Article 10 (4), Strengthening International Solidarity, World Declaration on Education for All: Meeting Basic Learning Needs, Jomtien, 1990

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What is needed is an ‘expanded vision’ that surpasses present resource levels, institutional structures, curricula, and conventional delivery systems while building on the best in current practices”; Article 3 ‘Universalizing access and promoting equity’ stated that: “Basic education should be provided to all children, youth and adults.” Article 4 ‘Focusing on Learning’ stated that: “Whether or not expanded educational opportunities will translate into meaningful development –of an individual or for society-depends ultimately on whether people actually learn as a result of those opportunities, i.e. whether they incorporate useful knowledge, reasoning ability, skills and values.” Article 5 ‘Broadening the means and scope of basic education’ stated that: “The diversity, complexity, and changing nature of basic learning needs of children, youth and adults necessitates broadening and constantly redefining the scope of basic education to include the following components”: learning begins at birth, the main delivery system for the basic education of children outside the family is primary schooling, the basic learning needs of youth and adults are diverse and should be met through a variety of delivery systems, all available instruments and channels of information, communications, and social action could be used to help convey essential knowledge and inform and educate people on social issues.” Article 6 ‘Enhancing the environment for learning’ stated that: “Learning does not take place in isolation. Societies, therefore, must ensure that all learners receive the nutrition, health care, and general physical and emotional support they need in order to participate actively in and benefit from their education.” Article 7 ‘Strengthening partnerships’ stated that: “National, regional, and local educational authorities have a unique obligations to provide basic education for all, but they cannot be expected to supply every human, financial or organizational requirement for this task. New and revitalized partnerships at all levels will be necessary.” Article 8 ‘Developing a supportive policy context’ stated that: “Supportive policies in the social, cultural, and economic sectors are required in order to realize the full provision and utilization of basic education for individual and societal improvement.” Article 9 ‘Mobilizing resources’ stated that: “If basic learning needs of all are to be met through a much broader scope of action than in the past, it will be essential to mobilize existing and new financial and human resources, public, private and voluntary.” Article 10 ‘Strengthening international solidarity’ stated that: “Meeting basic learning needs constitutes a common and universal human responsibility. It requires international solidarity and equitable and fair economic relations in order to redress existing economic disparities.”

Providing Education in Armed Conflict

The Jomtien conference was the start for the movement on Education for All; however there was very slow progress in implementing the EFA goals and it was not until the 2000 Dakar World Education Forum that there was a renewed focus on these goals together with the establishment of the Millennium Development Goals. 4.2.1.

The Dakar Framework for Action, Education for All: Meeting our Collective Commitments

The World Education Forum was held in Dakar in Senegal in April 2000. Since the Jomtien conference on Education for All in 1990, six regional conferences in 1999 and 2000 had taken place where 183 countries had assessed their progress towards the goal of Education for All as agreed on in Jomtien.56 The findings from these six conferences resulted in the Education for All (EFA) 2000 Assessment, as called for by the Jomtien conference, where all the participating governments’ evaluations of education in their countries were presented. The EFA 2000 Assessment showed that while there had been some modest progress and that the goal of education for all was both realistic and achievable, at the same time there had not been much improvement overall as progress had been uneven and too slow, more specifically that:57 (i)

Of the more than 800 million children under 6 years of age, fewer than a third benefit from any form of early childhood education. (ii) Some 113 million children, 60 per cent of whom are girls, have no access to primary schooling. (iii) At least 880 million adults are illiterate, of whom the majority are women.

Furthermore, in terms of the challenges to achieving the Education for All goal the Dakar Framework stipulated that one challenge was that many of the governments and agencies had “focused their efforts on the easy to reach and … neglected those excluded from a basic education, whether for social, economic or 56

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The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, p. 3: these conferences were the Sub-Saharan Conference on Education for All, Johannesburg, South Africa, 6-10 December 1999, the Asia and Pacific Conference on the EFA 2000 Assessment, Bangkok, Thailand, 17-20 January 2000, the Arab Regional Conference on Education for All, Cairo, Egypt, 24-27 January 2000, the Third Inter-Ministerial Review Meeting of the E-9 Countries, Recife, Brazil, 31 January-2 February 2000, the Conference on Education for All in Europe and North America, Warsaw, Poland, 6-8 February 2000 and the Regional Education for All Conference in the Americas, Santo Domingo, Dominican Republic, 10-12 February 2000 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 4 and (5), p. 12

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geographical reasons”.58 Also, it was stipulated that as improvements in quality had taken place, such as in early childhood care and education, the economically well-off had benefited at the expense of the poor. Another challenge was that even though a lot of international attention had been given to the need to improve education for girls, girls still constituted 60 per cent of all children that did not have any access to primary education.59 In addition, the situation in South Asia and sub-Saharan Africa presented “a much deeper challenge than world averages imply” requiring “particular attention” as these were the regions where it had “been the most difficult” to gain progress.60 The Dakar Framework highlighted that a key challenge was to get the education policies of governments and funding agencies to integrate a “broad vision” of the concept of Education for All, meaning that in addition to primary education, the policies needed to include early childhood education, literacy and life-skills programmes, and that both formal and non-formal approaches would be applied that would address the needs of the poor and the most disadvantaged, including working children, remote rural dwellers and nomads, ethnic and linguistic minorities, children, young people and adults affected by conflict, HIV/AIDS, hunger and poor health, and those with special learning needs.61 The Framework stated that particular emphasis was to be allotted to issues like HIV/AIDS, early childhood education, school health, education of girls and women, adult literacy and education in situations of crisis and emergencies.62 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, was adopted by the Dakar World Education Forum, and it was the EFA 2000 Assessment that provided the foundation for this Framework.

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The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 16, p. 13 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 17, p. 13 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 18, p. 13-14 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para.19, p. 14 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Foreword

Providing Education in Armed Conflict

The 1990 Jomtien World Declaration on Education for All was reaffirmed by the Dakar Framework for Action as the Framework stipulated that:63 We re-affirm the vision of the World Declaration on Education for All (Jomtien 1990), supported by the Universal Declaration of Human Rights and the Convention on the Rights of the Child, that all children, young people and adults have the human right to benefit from an education that will meet their basic learning needs in the best and fullest sense of the term, an education that includes learning to know, to do, to live together and to be.

The Dakar Framework for Action stipulating that “education is a fundamental human right”, and that it “should be free, compulsory and of good quality” established six goals:64 1. 2.

3. 4.

5.

6.

Expanding and improving comprehensive early childhood care and education, especially for the most vulnerable and disadvantaged children; Ensuring that by 2015 all children, particularly girls, children in difficult circumstances and those belonging to ethnic minorities, have access to and complete free and compulsory primary education of good quality; Ensuring that the learning needs of all young people and adults are met through equitable access to appropriate learning and life skills programmes; Achieving a 50 per cent improvement in levels of adult literacy by 2015, especially for women, and equitable access to basic and continuing education for all adults; Eliminating gender disparities in primary and secondary education by 2005, and achieving gender equality in education by 2015, with a focus on ensuring girls’ full and equal access to and achievement in basic education of good quality; Improving all aspects of the quality of education, and ensuring their excellence so that recognized and measurable learning outcomes are achieved by all, especially in literacy, numeracy and essential life skills.

The Dakar Framework stipulated that priority in international assistance should be given to sub-Saharan Africa, South Asia and the least developed countries as these countries were experiencing the greatest challenges to achieving edu-

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The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 3, p. 8 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 8

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cation for all, which the EFA 2000 Assessment had shown.65 Furthermore, the Framework also stipulated that special attention should be given to conflict affected countries and countries that were going through reconstruction. Furthermore, it was stated in the Framework that a cause of great concern was “the significant growth of tensions, conflict and war”, and that in terms of the prevention of conflict education “has a key role to play” as well as “building lasting peace and stability”.66 Some of the key causes to the slow and failed progress to achieve education for all were identified by the Framework to be lack of political will, lack of financial resources and the efficient use of the available finances, the burden of debt, inadequate attention to the learning needs of the poor and the excluded, a lack of attention to the quality of learning and an absence of commitment to overcoming gender disparities.67 The Framework stated that in order for governments to be able to receive funding allocations from donor countries and funding agencies, this lack of political will need to be replaced by the showing of a political commitment by these governments. As the Framework stipulated that funding agencies were willing to allocate substantial resources in order for countries to achieve education for all by 2015, the Framework also stated that in order to receive these allocations governments needed to provide evidence of or potential for “sustained political commitment, effective and transparent mechanisms for consultation with civil society organizations in developing, implementing and monitoring EFA plans and well-defined consultative processes for sector planning and management”.68 The Dakar Framework made it clear that it was the “obligation” of the governments to reach and sustain the EFA goals and targets, and that it is at the country level that all EFA activities are to be centred.69 However, while underlying the need for stronger political will and national leadership to attain these goals, the Framework stipulated that the governments who were seriously com65

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The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 9 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 15 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 12 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 18 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Including six regional frameworks for action, p. 8

Providing Education in Armed Conflict

mitted to reaching these goals would be financially assisted by the international community which needed to mobilize bilateral and multilateral funding agencies, such as the World Bank, regional development banks, donor countries and the private sector to that end.70 As was stated in the Framework: “We affirm that no countries seriously committed to education for all will be thwarted in their achievement of this goal by a lack of resources.”71 In order to implement this commitment, a global initiative was to be launched which would develop strategies and mobilize the required resources to assist national governments in their work to achieve the EFA goals.72 The role of UNESCO, in achieving the EFA goals, as the global lead agency in education, was to be the coordinator and gather together all the different partners at the national, regional and international levels including the multilateral and bilateral funding agencies, NGOs, the private sector and the civil society organizations.73 The Fund-in-Trust is one element of the EFA process, and it has been UNESCO that is responsible for the coordination between the Fund-inTrust and the EFA High Level Group.74 4.2.2.

The Millennium Development Goals September 2000

The United Nations General Assembly adopted the United Nations Millennium Declaration in September 2000, which 189 countries signed and in which it was agreed that an environment would be created that was “conducive to development and to the elimination of poverty” by 2015.75 The commitments agreed to in the Millennium Declaration were made into goals, the eight Millennium Development Goals, complemented by targets and indicators for monitor-

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The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 10, p. 9 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 10, p. 9 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, para. 11, p. 9 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments, Adopted by the World Education Forum, Dakar, Senegal, 26-28 April 2000, Framework Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 11 United Nations, General Assembly, Resolution adopted by the General Assembly, 55/2. United Nations Millennium Declaration, A/RES/55/2, 18 September 2000, including para. 11

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ing progress to be achieved by 2015. At the 2005 World Summit Outcome, the Millennium Goals were reaffirmed and strengthened.76 The Millennium Development Goals and targets are all “interrelated and should be seen as a whole”, in which the member states of the United Nations committed to by 2015:77 – – – – – – – –

MDG 1: Eradicate extreme poverty and hunger MDG 2: Achieve universal primary education MDG 3: Promote gender equality and empower women MDG 4: Reduce child mortality MDG 5: Improve maternal health MDG 6: Combat HIV/AIDS, malaria and other diseases MDG 7: Ensure environmental sustainability MDG 8: Develop a global partnership for development

Here the focus is on the MDGs 1, 2, 3, 4, 5 and 6: This is taken from “the Official list of MDG indicators”, effective 15 January 2008:78

Goals and Targets (from the Millennium Declaration) MDG 1: Eradicate extreme poverty and hunger Target 1.A: Halve, between 1990 and 2015, the proportion of people whose income is less than one dollar a day

Indicators

Target 1.B: Achieve full and productive employment and decent work for all, including women and young people

1.4 Growth rate of GDP per person employed 1.5 Employment-to-population ratio 1.6 Proportion of employed people living Below $1 dollar (PPP) per day 1.7 Proportion of own-account and contributing family workers in total employment

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1.1 Proportion of population below $1(PPP) per day 1.2 Poverty Ratio Gap 1.3 Share of poorest quintile in consumption

United Nations, General Assembly, Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, A/RES/60/1, 24 October, 2005 United Nations, General Assembly, Resolution adopted by the General Assembly, 55/2. United Nations Millennium Declaration, A/RES/55/2, 18 September 2000 Official list of MDG indicators, All indicators should be disaggregated by sex and urban/rural as far as possible, Effective 15 January, 2008, http://mdgs.un.org/unsd/ mdg/Resources/Attach/Indicators/officialList2008.pdf, accessed February 20, 2011

Providing Education in Armed Conflict Target 1.C: Halve, between 1990 and 2015, the proportion of people who suffer from hunger

1.8 Prevalence of underweight children under five years of age 1.9 Proportion of population below minimum level of dietary energy consumption

MDG 2: Achieve universal primary education Target 2.A: Ensure that, by 2015, children 2.1 Net enrolment ratio in primary education everywhere, girls and boys alike, will be able to 2.2 Proportion of pupils starting grade 1 who complete a full course of primary schooling reach last grade of primary school 2.3 Literacy rate of 15–24 year-olds, women and men MDG 3: Promote gender equality and empower women Target 3.A: Eliminate gender disparity in 3.1 Ratios of girls to boys in primary, primary and secundary education, preferably secondary and tertiary education by 2005, and in all levels of education no later 3.2 Share of women in wage employment in than 2015 the non-agricultural sector 3.3 Proportion of seats held by women in national parliament MDG 4: Reduce child mortality Target 4.A: Reduce by two-thirds, between 4.1 Under-five mortality rate 1990 and 2015, the under-five mortality rate 4.2 Infant mortality rate 4.3 Proportion of 1 year-old children immunized against MDG 5: Improve maternal health Target 5.A: Reduce by three quarters, between 5.1 Maternal mortality rate 1990 and 2015, the maternal mortality ratio 5.2 Proportion of births attended by skilled health personnel Target 5.B: Achieve, by 2015, universal access 5.3 Contraceptive prevalence rate to reproductive health

MDG 6: Combat HIV/AIDS, malaria and other diseases Target 6.A: Have halted by 2015 and begun to reverse the spread of HIV/AIDS

5.4 Adolescent birth rate 5.5 Antenatal care coverage (at least one visit and at least four visits)

6.1 HIV prevalence among population aged 15-24 years 6.2 Condom use at last high-risk sex 6.3 Proportion of population aged 15–24 years with comprehensive correct knowledge of HIV/AIDS 6.4 Ratio of school attendance of orphans to school attendance of non-orphans aged 10–14 years

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6.5 Proportion of population with advanced HIV infection with access to antiretroviral drugs 6.6 Incidence and death rates associated with malaria 6.7 Proportion of children under 5 sleeping under insecticide-treated bednets 6.8 Proportion of children under 5 with fever who are treated with appropriate antimalaria drugs 6.9 Incidence, prevalence and death rates associated with tuberculosis 6.10 Proportion of tuberculosis cases detected and cured under directly observed treatment short course

With regards to the MDG 7, ensuring environmental sustainability, not specifically mentioning children but directly affecting them, one target, Target 7.C, is to halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation, and Target 7.D, is to by 2020, having achieved a significant improvement in the lives of at least 100 million slum dwellers (the indicator 7.10 is the proportion of the urban population living in slums).79 To measure whether a household is living in a slum (it is the urban population that is representing the households living in slums), at least one of four characteristics need to be fulfilled: (a) lack of access to improved water supply; (b) lack of access to improved sanitation; (c) overcrowding (three or more persons per room); and (d) dwellings made of non-durable material.80 Afghanistan has added a ninth development goal which is “to enhance security”, as the Afghan government views insecurity to be their biggest problem and that in order to be able to achieve the other MDGs security is a precondition which needs to be improved.81 Geert Cappelaere, UNICEF’s Representative in Yemen, has stated that“[a]s we count down to the 2015 deadline for the MDGs, we have fallen far short of our 79

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Official list of MDG indicators, All indicators should be disaggregated by sex and urban/rural as far as possible, Effective 15 January, 2008, http://mdgs.un.org/unsd/ mdg/Resources/Attach/Indicators/officialList2008.pdf, accessed February 20, 2011 Footnote (b), Official list of MDG indicators, All indicators should be disaggregated by sex and urban/rural as far as possible, Effective 15 January, 2008, http://mdgs. un.org/unsd/mdg/Resources/Attach/Indicators/officialList2008.pdf, accessed February 20, 2011 UNDP, Millennium Development Goals in Afghanistan, www.undp.org.af/MDGs/ index.htm, accessed June 15, 2010

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commitments and promises to the children of this country”, and that “[m]any children in Yemen have been deprived of education for too long because of the conflict, and we welcome the commitment from all sides to actively contribute to the success of this campaign”.82 It remains to be seen how the political developments in Yemen will impact education for all in the country. In Yemen even before the political upheaval began in spring 2011 more than one-quarter of the children aged 6 to 14 years did not go to school, and the majority of the school-aged children in the conflict affected areas such as in Sa’ada, Amran and Hajjah had not been able to attend school because of “the conflict between the government and al-Houti rebels”.83 As a way to find a solution to this situation, the Yemeni Ministry of Education and UNICEF organized together with UNHCR, Save the Children, CHF International and various development partners a Back to School Campaign launched in October 2010, to get about 500,000 children such as refugees, IDPs and other war-affected children back to school.84 At the same time, a week-long country-wide campaign of immunization against tetanus of about 1.7 million women was also taking place in 14 governorates.85 In Yemen only 20 per cent of all women of child-bearing age get immunized against tetanus, which needs to be seen in the context that worldwide every nine minutes one child die because of neonatal tetanus while tetanus is the condition that is most easy to prevent. These two campaigns were taking place in order for Yemen to be able to reach the MDGs by 2015, focusing on the marginalized and vulnerable communities, but still with a purpose to reach all women and children. 4.2.3.

General Assembly Resolution 64/290 on the Right to Education in Emergency Situations

Today it is recognized that all children including children in armed conflict have a right to education, which was highlighted by the General Assembly adopting the resolution 64/290 “The Right to Education in Emergency Situations” in July 2010, which was much anticipated.86 First of all the member states of the General Assembly reaffirm in the preamble to the resolution “that everyone shall enjoy the human right to education”, which includes all children in emergency situ82 83 84 85 86

UNICEF, Press Centre, New Note, Narrowing the gaps to meet the MDGs in Yemen, Sana’a, 11 October 2010 UNICEF, Press Centre, New Note, Narrowing the gaps to meet the MDGs in Yemen, Sana’a, 11 October 2010 UNICEF, Press Centre, New Note, Narrowing the gaps to meet the MDGs in Yemen, Sana’a, 11 October 2010 UNICEF, Press Centre, New Note, Narrowing the gaps to meet the MDGs in Yemen, Sana’a, 11 October 2010 General Assembly, Resolution adopted by the General Assembly, 64/290. The right to education in emergency situations, A/RES/64/290, 27 July 2010

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ations including armed conflict.87 The resolution makes reference in this regard to the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the 1951 Convention relating to the Status of Refugees, the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, as well as all the relevant UN resolutions related to the right to education in emergency situations including Security Council resolutions 1325 (2000), 1612 (2005), 1674 (2006), 1882 (2009), 1888 (2009), 1889 (2009) and 1894 (2009). In the preamble, the resolution makes reference as well to the UN Millennium Declaration in which it was decided that all children everywhere, boys and girls, “would be able to complete a full course of primary schooling and that girls and boys would have equal access to all levels of education by 2015”. The resolution recognizes “that a large proportion of the world’s children out of school live in conflict-affected areas and in natural-disaster-stricken regions”, and that these situations pose significant challenges for the fulfi lment of international education goals which includes the MDG2 (preamble). The General Assembly underscores in the preamble to the resolution that the UNCRC “must constitute the standard in the promotion and protection of the rights of the child”, and that Articles 28 and 29 of the UNCRC which set out the requirements for the realization of the right to education are also applicable to emergency situations including armed conflict. The resolution makes reference to that in the context of Education for All the funding for international education has been inadequate, as well as that the humanitarian consolidated appeals and flash appeals which were launched in 2009 showed that “the education sector was one of the most underfunded with respect to meeting the original requirements” (preamble). With regards to attacks against education the General Assembly is “condemning the targeting of civilians as such in situations of armed conflict, including schoolchildren, students and teachers, as well as attacks on civilian objects such as educational institutions, as prohibited under international law, recognizing that such acts may constitute grave breaches of the Geneva Conventions of 1949 and, for States parties, and reminding all parties to armed conflict of their obligations under international law to refrain from the use of civilian objects, including educational institutions, for military purposes and child recruitment” (preamble). In this context the resolution also acknowledges that a key priority in emergencies for the international community and member states should be to protect schools and provide education.

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In the preamble of the resolution the positive role that education can play in emergencies is recognized such as stopping and preventing abuses from being committed against affected populations, and especially with helping to prevent “all forms of violence, including rape and other acts of sexual violence, exploitation, trafficking in persons and the worst forms of child labour”. The General Assembly considered in the preamble “that quality education can mitigate the psychosocial impact of armed confl icts and natural disasters by providing a sense of normalcy, stability, structure and hope for the future”. The resolution further takes into consideration that education for individuals in situations of displacement “can play a significant role in contributing towards preparing for and promoting durable solutions for the affected population” (preamble). Furthermore, the resolution takes into account the various international efforts that have been undertaken regarding education including the work of the UN Special Rapporteur on the Right to Education noting his report on the right to education in emergency situations, the Committee on the Rights of the Child having a day of general discussion on the right of the child to education in emergency situations on 19 September 2008, the work of the Special Representative of the Secretary-General for CAAC, the launch in Manila April 8, 2010 of the “One million safe schools and hospitals” campaign, a global initiative (as part of the global campaign of the International Strategy for Disaster Reduction for 2010 and 2011, “Making Cities Resilient”), the Education Cluster by the United Nations Inter-Agency Standing Committee, and the INEE “Minimum Standards for Education” and the thematic debate at the UN on access to education in emergency, post-crisis and transition situations which have been caused by man-made conflicts or natural disaster on 18 March 2009 (paras. 1–6). The resolution is further divided into five parts: Education in all stages of humanitarian response, Safe and protective educational environment, Reconstruction and post-emergency situations, The importance of political will and financing, and Follow-up. With regards to “Education in all stages of humanitarian response” the resolution urges that the UN Member States implement strategies and policies that will ensure and support “the realization of the right to education as an integral element of humanitarian assistance and humanitarian response, to the maximum of their available resources” (para. 7). In the resolution concerning “Safe and protective educational environment”, the General Assembly recommends to the member states that they according to their obligations under international law and in a non-discriminatory manner guarantee access to education in emergency situations to all affected populations (para. 9). Furthermore, the resolution is addressed to all parties to an armed conflict, governmental and non-state actors, making reference to their obligations according to international humanitarian law and international human rights law, and all the parties to an armed conflict are urged to respect civilians, which includes students and educational personnel, to respect civilian objects such as

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educational institutions and to refrain from the recruitment of children into armed forces or groups (para. 10). The member states of the UN are urged to abide by their obligations according to international law, including humanitarian law concerning the protection of and respect for civilians and civilian objects, and to prevent and combat impunity by criminalizing attacks on educational buildings into their own national laws, as these attacks can amount to grave breaches of the Geneva Conventions, and war crimes for state parties according to the Rome Statute of the ICC (para. 10). The situation of girls is especially focused on as the resolution urges the member states, “in their support for education, to specifically address the genderspecific needs of girls in emergency contexts, including their increased vulnerability to gender-based violence” (para. 12). Concerning “Reconstruction and post-emergency situations”, the resolution is urging the member states “to provide quality education in emergency situations that is gender-sensitive, centred on learners, rights-based, protective, adaptable, inclusive, participatory and reflective of the specific living conditions of children and youth, and that pays due regard, as appropriate, to their linguistic and cultural identity, mindful that quality education can foster tolerance and mutual understanding and respect for the human rights of others” (para. 15). Furthermore the resolution makes reference to the role that education can have in peace processes by calling upon “all parties concerned to ensure that all peace processes and agreements and post-conflict recovery, peacemaking and peacebuilding efforts, as well as reconstruction planning, are sensitive to the special and specific needs of women, children and youth and include specific measures for the protection of civilians, including the facilitation of early access to education, learning and training, and to ensure the participation of women, children and young persons in those processes” (para. 16). The states and “other relevant actors” are called upon “to ensure the facilitation of early access to education and training for children and adults in secure and friendly environments in the aftermath of emergencies, including through the implementation of specific related measures in early recovery initiatives, peacemaking and peacebuilding processes, capacity-building strategies, the participation of children and youth and the mobilization and prioritization of human, technical and financial resources” (para. 17). With regards to the importance of political will and financing, the General Assembly reaffirmed its commitment to give support to the developing countries working to guarantee “that all children have access to and complete free and compulsory primary education of good quality, to eliminating gender inequality and imbalances and renewing efforts to improve the education of girls, and to continuing to support the efforts of developing countries in the implementation of the Education for All initiative, including with enhanced resources of all types through the Education for All fast-track initiative in support of country-led national education plans, and urges donors to honour their pledged contributions” (para. 18). Here the work of the FTI was highlighted as an instrument to

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support the Education for All goals of developing countries (see further on FTI in chapter). The resolution underlines that it is the states that are the primary-duty bearers and calls upon the states to guarantee that the right to education is fulfilled “in all phases of emergency situations, in a manner that meets the essential needs of the affected populations, recognizing the role of the donor community and humanitarian agencies in assisting those efforts” (para. 19). With regards to financing the resolution calls upon all member states, as well as donors, inviting the private sector, all concerned individuals and institutions to have their financial support be maintained, as well as that their funding to educational programmes defined in humanitarian appeals would increase, which include humanitarian consolidated and flash appeals, to guarantee “adequate, predictable, flexible and needs-based resources” (para. 20). Finally regarding follow-up, the General Assembly in its resolution requested the UN Special Rapporteur on the right to education, in cooperation with relevant stakeholders, such as governments, UN agencies and programmes, civil society and other UN mandate holders, in his next interim report to the General Assembly would provide an update to his report on the right to education in emergencies, so that gaps and continuous challenges to having the right to education in emergency situations guaranteed be recognized (para. 21). While as a General Assembly resolution it is a non-binding document and the language is quite weak, this resolution is still important as it firmly recognizes the right to an education of children affected by armed conflict and children in other emergencies, as well as their needs to this regard and the challenges involved in providing education to them. 4.3.

Education for Children in Armed Conflict

That the situation for children affected by armed conflict is particularly dire has been shown by Save the Children, where in especially protracted conflict situations their findings reveal that the number of children of primary-age who have been out of school from 2006 to 2010 has increased.88 These countries include Afghanistan and the estimated number of primary-aged children out of school in the country in 2006 were 1,139,000 and 1,816,000 in 2010; in Angola 533,000 in 2006 and 824,000 in 2010; in Chad 577,000 in 2006 and 1,186.000 in 2010; in Côte d’Ivoire 955,000 in 2006 and 1,164.000 in 2010; in Eritrea 312,000 in 2006 and 349,000 in 2010; in Haiti 572,000 in 2006 and 706,000 in 2010; in Liberia 142,000 in 2006 and 447,000 in 2010; in Nigeria 7,622,000 in 2006 and 8,221,000 in 2010; in Sri Lanka 22,000 in 2006 and 51,000 in 2010; and in Sudan 2,405,000 in 2006

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and 2,798,000 in 2010.89 In some countries the number of primary-school level children out of school has almost remained the same such as in CAR with 354,000 in 2006 and 310,000 in 2010; in DRC with 5,290,000 in 2006 and 5,203,000 in 2010; in Nepal 1,049,000 in 2006 and 714,000 in 2010; in Pakistan 7,813,000 in 2006 and 6,821,000 in 2010; in Republic of Congo 292,000 in 2006 and 244,000 in 2010; and in Timor Leste 75,000 in 2006 and 71,000 in 2010. Other countries have made significant strides in being able to provide primary-school education to children such as Burundi with 536,000 primary-school children being out of school in 2006 and 244,000 in 2010; Ethiopia with 5,994,000 children in 2006 out-of-school and 3,721,000 in 2010; Rwanda 206,000 in 2006 and 88,000 in 2010; and Sierra Leone with 431,000 in 2006 and 285,000 in 2010. 4.3.1.

Challenges to Providing Education in Armed Conflict Situations

Save the Children has identified barriers to access to education in order to understand why measures that worked well to get children in non-conflict low income countries into school did not work for children in conflict affected and fragile states (CAFS), in the context of the 40 per cent global reduction of outof-school children that took place between 2006 and 2009.90 However for CAFS the number was only a 14 per cent reduction, and in countries like Chad, Haiti, Nigeria and Sri Lanka there was an increase of the number of children that did not go to school. It was found that the low-income countries and CAFS had the same barriers, but that these barriers were made worse by armed conflict.91 In a situation of armed conflict there was especially an intersection of various factors that resulted in what appeared like barriers impossible to overcome in the case of certain children.92 The barriers are poverty, discrimination and a lack of schools and teachers, with poverty being the biggest barrier of all that leave children out of school.93 One child in three is out of school in CAFS, and it is mainly the children from the poorest families that are left out. For instance the poorest children in Somalia go to school about 0.4 years while children from the richest families go to school about 6.6 years, and in Nepal the poorest rural boys go to school 5 years while the

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richest rural boys go to school about 9.4 years.94 While in Nepal the poorest rural girls get 2.4 years of schooling and rich urban girls about 8.4 years of schooling. Furthermore, even if basic primary education is supposed to be free nearly in all CAFS the parents must pay a fee to pay for their children to go to school at the primary level.95 In DRC all children are to have access to free primary education according to the Constitution of 2006, but with regards to public education in the provinces about 80–90 per cent is paid for by the parents, and in some cases teachers are being paid in bananas, and in other cases when the parents cannot pay for a child the teachers prevent those children from being able to attend school as the teachers do not get paid a salary.96 Girls from the poorest families are often prevented from going to school because their parents cannot afford to send all of their children to school and choose most often their sons as the ones who can go to school. From a child’s perspective such exclusion and discrimination can affect the child at a very deep level as the following statement by a girl from Afghanistan who could not go to school because her parents chose to only afford their sons schooling: “My mother loves my brothers and doesn’t love me as much as them.”97 Another barrier is discrimination which affects girls, both the poorest and the richest, the most, where for instance in Chad a rich rural girl gets one year of schooling, a rich rural boy goes to school for about nine years.98 Importantly those countries that are affected by armed conflict belong to the countries that are “the most ethnically and linguistically fractured”, giving rise to discrimination, and “is one of the reasons why a disproportionate number of children are out of school in these countries”.99 In terms of the intersecting barriers, where gender, poverty and ethnicity all can interact, for instance in Uganda the poorest children belonging to the minority group Ateso-Karamojong in the northern Uganda go to school for about 2.9 years, while the children from the capital, Kampala, go to school about 9.4 years.100

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Because of war and conflict many school buildings are damaged or destroyed, which leads to a situation where there is a lack of school buildings in many CAFS, and where for instance in Afghanistan about 50 per cent of all school classes are conducted in tents or open spaces, where in Angola and Southern Sudan an evaluation by Save the Children revealed that more than half of the lessons were conducted under trees, in temporary structures or in ruined buildings.101 In some places the schools are too far away and it is unsafe for the children to go to school, which leads to especially many girls being prevented from going to school. In Afghanistan it was shown in the Ghor province that there was a 70 per cent school enrolment if the distance to school was less than one mile, and decreased to 30 per cent if the distance was two or more miles.102 Lack of teachers is a major challenge for CAFS, and estimations by the UNESCO Institute for Statistics (UIS) show that between 2007 and 2015 about 10.3 million new teachers are needed if the goal of education for all is to be reached.103 Thirty-seven countries lack a significant number of primary level teachers, with almost half of the 37 countries being CAFS, and about two-thirds being Sub-Saharan Africa. For instance in the Central African Republic about an 18.5 per cent increase of the number of teachers needs to take place every year including those who leave their teaching jobs, and about 166,000 more teachers are needed in DRC during this period of time if all children are to have access to primary education.104 Furthermore, there is a great gender gap in several CAFS in their teaching force, where for instance less than 7 per cent of all teachers in Southern Sudan are women, and in Afghanistan about 28 per cent of all teachers nationally are women, however there are only about 1 per cent women teachers in certain provinces like in Uruzgan.105 The lack of teachers in CAFS have several causes such as that teachers have lost their lives, had to flee, low pay, found other jobs, schools closing down, and since no teacher training has been able to be conducted during war time no more teachers have been trained. In DRC several teachers work additional jobs, like farming, in order to get paid since their teacher salaries are either very low or non-existent, which leads to them not being in school.106 For instance graduates from NGO teacher training programmes in 101 102 103 104 105 106

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Southern Sudan chose to work in government or international agencies because they got better pay than if they continued being teachers.107 Since so many children are not able to go to school either only sporadically or not at all during war-time, many older children and youth need to be educated at the primary level. For instance at the end of the 14 year old conflict in Liberia, about 60 per cent of the primary level students were over-aged, with some students in Grade I being 20 years old.108 Shame and stigma are reasons as to why some children do not go to school, like older children who “are ashamed to be in the same class with younger children” and former child soldiers who are stigmatized when they return home by their families, communities and other children.109 Many children, mostly girls being particularly affected, drop out of school because they need to take care of the households and their younger siblings. For instance in Southern Sudan for grades 1 to 7 the drop-out rates for the boys was 5 per cent and 16 per cent for girls, and in Angola for Grade 3 the drop-out rate for boys was 10 per cent and for girls 25 per cent.110 Girls also drop out of school because of early marriage and pregnancies, and Save the Children was told in DRC by an education official that it was a “morality question” to have girls dropping out of school if they got pregnant or if they had a child already.111 Becoming internally displaced or refugees affect children’s education in many ways, and for instance in eastern DRC most of the IDP children have since 1998 not had any access to either a formal or informal education at all.112 Many have also been displaced several times during the long-term conflict; “Displacement is sometimes daily”, as an official from DRC said to Save the Children, which needs to be seen in the context that in the DRC there were two million people who were forcibly displaced due to the long-term armed conflict only in July 2009.113 Also when children return from having been internally displaced or refugees they face many barriers to continue their education, and as one Afghan boy who had been living in Pakistan and gone to school there told Save the Children: “I was very sad 107 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 7 108 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 7 109 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, 7-8 110 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 8 111 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 8 112 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 8 113 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 8

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when I got back to Afghanistan because I could not enrol in school for two years due to the lack of schools.”114 4.3.2.

How to Overcome Challenges to the Provision of Education in Armed Conflict

There are several ways to overcome the barriers to children’s education also in times of armed conflict, such as reducing the distance it takes for children to walk to school, eliminating school fees, supporting the health of children and their families, supporting teachers and making schools safe.115 Community-based education management information systems, C-EMIS are programmes where local communities work to generate those resources that are needed for education and geared to the specific needs and contexts of a particular community. Save the Children has piloted such systems in several countries including in Nepal.116 Such a community-based system engages the community in finding ways to provide adequate education for the children and makes it possible for the community members to also identify those children who often are excluded from receiving an education (such as children with disabilities and children from the poorest families) as well as addressing the reasons why this exclusion occurs and finding a remedy for this exclusion.117 Ways have been found to help children whose families cannot afford having their children go to school. In many countries in sub-Saharan Africa cash transfer programmes have been introduced for the basic needs of families, and while it has been shown that families mostly use the money they receive for food and healthcare, they also use this money on education for their children.118 For instance in Ethiopia a Productive Safety Net Programme (PSNP) with cash transfers was introduced, and it was shown that 15 per cent of the recipients of these transfers used the money to pay for their children’s education, and also for 43 per cent of the families it was possible to have their children go to school longer.119

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Furthermore, “[c]ash transfers are consistently found to have positive effects on girls’ education”.120 Another measure used to increase enrolment of children in school is the provision of a midday meal or take home food, which in some cases has shown to increase enrolment such as in Eritrea where enrolment rose with about 12 per cent in five war and drought-affected zones.121 The provision of take-home meals by the World Food Programme in Morocco, Niger and Pakistan resulted in an increase of girls’ education by 50 per cent and the parents also as a result came to value the education of the girls more.122 But there have been some challenges to the provision of food in school, as in some places like in Southern Sudan the provision of meals in schools became the duty of the teachers which led to the actual teaching time being reduced.123 For instance in Georgia after the war in August 2008 one problem has been providing education for IDP youth including secondary education and higher education.124 While it is the Georgian government that has had the responsibility to provide education for all of the IDPs, it has been the non-state actors and international organizations that have provided assistance to education for the IDPs even though the foreign aid provided for the IDPs has not been for education. 4.3.3.

Attacks on Schools, Students and Teachers in Armed Conflict

UNESCO has published two reports on Education under Attack, in 2007 and 2010, because of mainly three concerns including: “the threat to the right to life, the threat to the right to education which also enables the fulfi llment of other basic rights and fundamental freedoms, and the threat to the achievement of the Education for All goals”.125 The 2010 report listed 31 countries where attacks against education have taken place between January 2007 and July 2009, includ120 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 11 121 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 11 122 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 11 123 Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 11 124 Tinatin Khidasheli, International Secretary, Republican Party of Georgia, and Giorgi Chkheidze, Executive Director, Georgian Young Lawyers’ Association, Human Rights, Democracy and Displacement in Georgia, A Brookings-Bern Project on Internal Displacement, November 19, 2010 125 O’Malley, B., Education under Attack 2010, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, aid workers and institutions, UNESCO, from hereon: B., Education under Attack 2010, UNESCO, p. 14

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ing Africa, Asia, Europe and Latin America which shows that attacks against education is a global problem.126 The countries that are the most affected include Afghanistan, Colombia, DRC, Haiti, India, Iraq, Nepal, Pakistan, Thailand, Somalia and Zimbabwe.127 In 2008 there were 670 attacks against schools in Afghanistan, between 2007 and July 2009 there were 350 schools that had been objects of destruction or had gotten damages in the Swat Valley in Pakistan, during the Israeli Cast Lead operation in the Gaza Strip from December 2008 to January 2009 about 300 educational facilities had gotten extensive damages, and in the last years rebels have destroyed more than 300 schools in India.128 Many killings of students, teachers and educational staff have taken place, where about 440 such killings took place in Afghanistan within three years, there were 117 killings of mainly academics in Iraq between 2007 and July 2009, and during three and a half years about 117 students and teachers were killed in Colombia (this included 99 killings of teachers who were “particularly targeted”).129 Furthermore, one university alone got 312 death threats in Colombia, and education staff across the country received more than 400 such threats during two and a half years. Also, O’Malley importantly argues that there is a need to address the consequences that “attacks on education systems” have on both keeping and recruiting teachers which would require that such attacks be monitored and reported on, and that there is a risk that a country’s vision for the education of its children becomes too restricted which in turn sets “limits on the knowledge or content that can be researched, taught or applied”.130 In the UNESCO commissioned study “Education under Attack” of 2007, O’Malley points at the unprecedented rise of attacks not only against schools and buildings, but also to the fact that “students, teaching staff, trade unionists, administrators or officials” are increasingly being targeted.131 With regards to this issue there have been discussions regarding whether to especially protect the human rights of “education workers and students” as a matter of priority, with one counter-argument being that teachers should not be offered such protection be126 O’Malley, B., Education under Attack 2010, UNESCO, p. 15 127 O’Malley, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 4 128 O’Malley, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 5 129 O’Malley, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 5-6 130 O’Malley, B., Education under Attack 2010, UNESCO, p. 28 131 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 4

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cause “the teachers’ lives should not be treated as more important than the lives of other workers”.132 In this context the Office of the UN Special Representative of the Secretary-General on Children and Armed Conflict did propose “that schools and hospitals should be singled out for protection in human rights law because of their role in the care and protection of children”, and as O’Malley points out “[i] t would be an odd argument indeed if this applied only to the building and not to the teachers and other workers who actually care for the children”.133 O’Malley also means that there is a need for the International Criminal Court (ICC) to investigate attacks committed against individuals such as teachers, academics, education trade unionists and education officials and not only buildings, as the possibility to include these crimes for these groups is provided for in the ICC Rome Statute “since attacks against the civilian population or individuals not taking part in the conflict, and attacks against buildings dedicated to education, provided they are not military objectives, constitute war crimes”.134 The second main argument against such prioritization has been that education is not regarded as something neutral, but rather as being “part of the problem”.135 These attacks do not take place in a vacuum and the motives for these attacks at times mirror existing societal grievances and changes that need to take place, and it is important to note here that the issue of how education is being offered and for whom are not neutral questions. One reason as to why education “can also be a flashpoint for tension” is because there is a perception that education adds to an existing “sense of injustice” for example within the context that development gains have not been equally distributed.136 Many times the existing school system is not inclusive and denies the language, culture and history of a group or different groups which fuel discontent and in some cases tension. As

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O’Malley also points out the causes for these attacks range from religious, ethnic, sectarian to political causes.137 For instance the majority of the former child soldiers and youth who demobilized in Liberia, Sierra Leone and Côte d’Ivoire have had a desire to reintegrate into their communities and have seen education as a priority.138 As Cream Wright of UNICEF said these were “the same people who destroy schools. Part of their grievance is having being denied the benefits of education and so they are attacking those who have benefited or the places where they have benefited.”139 The RUF (Revolutionary United Front) in Sierra Leone had as members many “school dropouts, push-outs and those who had never been to school”, and they specifically destroyed “the symbols and signs of education” and, “[b]y 2004, 60 per cent of primary schools and 40 per cent of secondary schools still needed major rehabilitation and reconstruction”.140 Somalia’s long-term civil war is affecting Kenya in several ways, with many refugees having come to Kenya. A new phenomenon has been that the Somali fundamentalist Islamist militia group the Al Shabaab has come over the border from southern Somalia into Kenya and has entered refugee camps for Somali refugees recruiting young Somali men to join them.141 Every young man has received about USD 300 upon joining. Al Shabaab also attempts to recruit Kenyan school children into their group as for example in July 2009 members of the Al Shabaab went over the border into Kenya and came into a local Kenyan school in an isolated town where they at gunpoint gathered together every child in the school saying that they should stop going to school and “join the jihad” instead.142

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O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 34 138 Cream Wright, Head of education, UNICEF, in O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 34 139 Cream Wright, Head of education, UNICEF, in O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 34 140 Save the Children and Ekundayo Thompson, Lecturer in education and human rights, Njala University, March 2007, in O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 39 141 Gettleman, J., Radical Islamists Slipping Easily into Kenya, July 22, 2009, A1 and A 11 142 Gettleman, J., Radical Islamists Slipping Easily into Kenya, July 22, 2009, A1 and A 11

Providing Education in Armed Conflict

In order to promote education for girls with Islamic principles as a foundation, and to have the community protect the girl students and teachers, the government in Afghanistan has made attempts to include local religious leaders into this strategy.143 The reason is that these religious leaders can read and write in contrast to the majority in their communities, and as UNICEF’s head of education in Kabul, David McLouglin, has stated “[a]ccording to Islamic guidance, education is a must both for males and females. Religious leaders are well trained in this thought and they are to advocate for both.”144 In the three most southern provinces of Thailand where attacks against schools, students and teachers have been prevalent, the government has been viewed as insensitive to these provinces’ local culture, the language Yawi and history which has resulted in a feeling of discontent among the population that goes further than the issue of separatism.145 These sentiments were one reason why the schools have been seen as legitimate targets by the different groups, and the Malay and Muslim rebel groups have since the renewal of the conflict in 2004 had education as some of their targets that they have focused on from the beginning including the targeting of teachers which has continued.146 The Thai government has provided troops to these areas to protect the teachers including escorting the teachers to and from school, however these troops have also become targets. The government together with UNESCO is trying to fi nd a solution to this situation by among other things including Yawi in the beginner literacy instructions classes in the schools.147 This encompasses having governmental schools also teach in Yawi and provide instructions in Islamic moral or religious teachings and having the Islamic schools also teach history according to the national secular curriculum and the Thai language which is taking place in the Malay schools.148 This the

143 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 35 144 In O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 35 145 Sheldon Shaeffer in O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 35 146 O’Malley, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 7-8 147 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 35 148 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 35

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government and UNESCO hopes will lead to schools no longer being viewed “as legitimate targets” for attacks. O’Malley has categorized the types of attacks against education that are taking place in conflict countries after tactics and expected outcomes:149 a)

b)

c) d)

e)

Multiple deaths of education workers, students and officials via bombings, remotely detonated explosions and sprayed gunfire in places where large numbers of people congregate, such as university and school entrances, playgrounds and offices, or at large-scale events such as protests, or on vehicles carrying staff to and from work. Targeted assassinations of individual education staff, students and trade unionists by firearms, typically in the classroom or on the way to and from work. Other weapons such as knives and hammers are also used. Destruction of education buildings and resources via remotely detonated explosions, bombings, burnings, looting and ransacking. Illegal detention, “disappearance” or torture of teachers, academics and education trade unionists, usually by forces of the state or forces supported by the state, though sometimes by rebel groups. Abduction of students, teachers and officials by armed forces for extortion or to spread terror; forced recruitment of child soldiers, and abduction and/ or rape of school girls and teachers by military forces.

Each conflict situation has its own tactics and combination of tactics, such as in Thailand where “targeted assassinations of known teachers carried out by armed motorcycle pillion passengers” and targeted bombings of buses transporting teachers and armed guards have been found to be the two most common tactics.150 Huge bombings at universities set off by remotely detonated devices, and shootings and kidnappings of students and professors have been the main tactics in Iraq, while schools being burnt to the ground have been the main tactic in Afghanistan. In Colombia and Nepal where ideological conflicts between the right and left wing have been carried out, illegal detention, disappearance and torture by mainly the state or forces connected to the state and the guerrillas engaging in abductions have been the main tactics.151 In Colombia and Ethiopia conflicts such as these have resulted in trade unionists for education having been 149 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 11-12 150 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 12 151 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 12

Providing Education in Armed Conflict

targeted, and the use of unexploded ordnance and the guerrilla groups laying out landmines in school environments have also been common in Colombia. In Iraq there was since the US invasion in 2003 a systematic targeting of the education system by the different armed groups that led to an exodus of teachers and professors who were forced to leave the country. The end result has been the destruction of an educational system which used to be the best in the Middle East.152 Many universities have been targeted by the different Shiite and Sunni armed groups killing numerous students, university workers and professors. By the end of 2006 assassinations of university academics including professors “had hit nearly every academic discipline and every university in Iraq”.153 At the Mustansiriya University in Baghdad in January 2007, 100 students were killed in a series of bombings, and in February 2007, 42 people were killed and 55 injured at the same university by an attack by a suicide bomber.154 The alleged suicide bomber was a woman, and she detonated the bomb when the students on their way to have mid-term exams were passing through the gates of the Department of Business and Administration. In the 2010 UNESCO report, new tactics of attacks were documented and they included the abduction of children from schools to be trained as suicide bombers (e.g. Pakistan), and direct attacks on schoolchildren (e.g. Afghanistan and Thailand, such as mass poisoning of pupils in schools in Afghanistan).155 The line between military and aid missions is not always clear in some campaigns by Western military forces which has led to attacks against education in some cases, as well as that the destruction of the enemy’s infrastructure as a means to weaken the opposing party is a tactic of war. Furthermore, the report emphasizes especially two findings such as “that it is possible to negotiate with rebels”, including with those who oppose education for ideological reasons, and that the risk of attacks can be lessened if community ownership has been established for the process of education, which especially includes schools being defended.156 “Attacks on education” are being defined in the 2010 report as entailing:157 152

153

154

155 156 157

O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 17 Muhammead al-Rubai, adviser to the Iraqi President on Scientific Affairs, in O’Malley, B., Education under attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 16 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 15 O’Malley, B., Education under Attack 2010, UNESCO, p. 15, 24 O’Malley, B., Education under Attack 2010, UNESCO, p. 15 This definition was changed compared to the definition in the 2007 report, O’Malley, B., Education under Attack 2010, UNESCO, p. 17

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targeted violent attacks, carried out for political, military, ideological, sectarian, ethnic, religious or criminal reasons, against students, teachers, academics and all other education personnel, including: support and transport staff, from janitors to bus drivers; education officials, from local civil servants to ministers of education; education trade unionists; and education aid workers. It includes night watchmen, police officers and soldiers attacked while guarding education institutions and personnel on their way to or from guarding them. It also covers targeted attacks on educational buildings, resources, materials and facilities, including transport.

It is emphasized in the 2010 report that it is “incidents involving the deliberate use of force … that disrupt and deter the provision of education” that forms “the common thread” for what constitutes a violent attack, and the report defines “violent attacks” as158 any actual or threatened hurt or damage by use of force, such as killing, torture, injury, abduction, illegal incarceration, kidnapping, laying of landmines around or approaching educational buildings, burning of buildings, and assaults with any kind of weapon from knives to bombs or military missiles. It includes forced recruitment of child soldiers, voluntary recruitment of child soldiers under the age of 15 and sexual violence where it is part of a political, military, or sectarian attack on students or education personnel at or on the way to or from a school or other educational institutions, or while taking part in or conducting an educational activity elsewhere. … both actual and threatened looting, seizure, occupation, closure or demolition of educational property by force; as well as prevention of attendance at school by armed or military groups. … the closure of schools or their takeover for military or security operations by state armed forces or armed police, or by rebel forces, occupying troops or any armed, military, ethnic, political, religious, criminal or sectarian group. … the imposition of political programmes in schools and education institutions under threat of force by armed groups.

The types of attacks against education that there are reports on between 2007 and 2010 are comprised of:159 –

158 159

Mass or multiple killings or injuries caused by explosions, rocket and mortar attacks, gunfire or mass poisoning;

O’Malley, B., Education under Attack 2010, UNESCO, p. 17-18 O’Malley, B., Education under Attack 2010, UNESCO, p. 24

Providing Education in Armed Conflict

– – – – – –

– – –

Assassinations or attempted assassinations; Injury and beatings of targeted individuals; Abductions, kidnappings, forced disappearance, illegal imprisonment and torture; Indiscriminate and targeted violence against education protestors; Sexual violence by armed groups, soldiers or security forces against schoolchildren and teachers; Forced/unforced recruitment and use of children under 15 years old as soldiers or suicide bombers – including abduction and recruitment from or on the way to or from school, or recruitment that denies access to education; Destruction of education facilities by remotely detonated explosions, mortar and rocket fire, aerial bombing, burning, looting, and ransacking; Occupation or use of educational facilities by the military, security forces, armed police or armed groups; and Threats of any of the above attacks.

The motives, which are multiple at times, behind the attacks on education vary, but the categories of motives have been identified in the UNESCO 2010 report and include:160 – – – – – – –

– – – – –

Attacks on schools or teachers as symbols of the imposition of an alien culture, philosophy or ethnic identity; Attacks on schools, teachers or students to prevent the education of girls; Attacks on schools, teachers, universities and academics to prevent any education; Attacks on schools and universities as symbols of government power opposed by rebels; Attacks on schools, universities, education offices, students, teachers, other staff and officials to undermine confidence in government control of an area; Attacks on schools, teachers or students in revenge for civilian killings; Attacks on examination halls and examination transport or ministry or local district offices and officials to undermine the functioning of the education system; Abduction of children and some adults to fi ll the ranks of rebel or armed forces or provide forced labour, sexual services and/or logistical support; Abduction for ransom; Sexual violence by members of armed groups, soldiers or security forces as a tactic of war or due to disrespect for gender rights; Attacks on students, teachers or academics for involvement in trade union activity; Attacks on students and academics to silence political opposition or prevent the voicing of alternative views;

160 O’Malley, B., Education under Attack 2010, UNESCO, p. 25-26

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– – –

– –

Attacks on students and academics to silence human rights campaigns; Attacks on academics to limit research on sensitive topics; Occupation of schools for security/military operations by security forces/ armed forces/armed groups and attacks on such schools because they are occupied or in military use; Destruction of education institutions by invading forces as a tactic of defeating the enemy; Destruction of education buildings in revenge for, or to deter, mortar, rocket or stoning attacks launched from inside them or nearby.

Attacks against education have wide-ranging consequences as such attacks also involve for instance fear, and as O’Malley explains “fear works” in that if one teacher in a school is killed then all other threats against the other teachers will “have real credibility”.161 He means that “the spread of this problem is much wider than the actual figures that you see of the number of people killed. You have to take into account the number of people who are threatened and the number of people who feel threatened”.162 He gives as an example rebel groups that have been killing teachers in the presence of their students in Thailand, and that the impact these killings have on the students have not been studied. In addition, as a result of “fear of further attacks” some schools cannot remain open and it might take a long time before they can open again, and governments might stop investing in such schools for a period of time because they view it as meaningless.163 Further O’Malley importantly underlines “that attacks against education undermine the power and confidence in government. They create, therefore, fuel instability, they create fragility and poverty”.164 Since the first UNESCO report on Education under Attack came out in 2007, the number of “systematic targeting of students, teachers, academics, education staff and institutions” only increased.165 For instance in Afghanistan in 2007 there were 242 such attacks reported, but in 2008 there were 670, and in the Swat valley in Pakistan the destruction of or damages to 356 schools as a result of the 161

O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 9 162 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 9 163 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 9-10 164 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 12 165 O’Malley, B., Education under Attack 2010, UNESCO, p. 21

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Providing Education in Armed Conflict

Pakistani army fighting the Taliban in 2008 to 2009 took place.166 Maoist rebels destroyed about 300 schools in India from 2006 to 2009. During the August war in 2008 the destruction of or damages to about 127 education facilities in Georgia occurred, and during the Israeli Operation Cast Lead from December 2008 to January 2009 about 300 buildings for kindergarten, school and university had received damages of which many were extensively in the Gaza Strip.167 Between 2007 and 2009 in Iraq, there had been 71 reported killings of academics, 2 killings of education officials and 37 killings of students by them having been assassinated or fallen victims to targeted bombings, while between 2006 and 2008 about 90 killings of teachers had been reported in Colombia. Many school children are exposed to sexual violence because different armed groups are abducting them, or their schools or other facilities for education are being attacked, or when the children go to or from school in countries such as DRC, Haiti, Indonesia, Iraq, Myanmar, and the Philippines.168 The most affected areas and countries between 2002 and 2007 where academics were being persecuted included sub-Saharan Africa, Iraq, the West Bank and Gaza.169 It is in countries affected by armed conflict and in countries with repressive regimes where human rights and democracy are lacking (here especially with regards to higher education) where the majority of attacks against education takes place.170 This finding is of significance bearing in mind the important role that free speech and free press without censure and intimidation play in developing an educational, academic and scientific system worth having. Students, teachers and/or academics have during 2007 and 2009 experienced, with governmental forces or forces backed by the governments being the perpetrators, beatings, arrests, torture, threats with murder or been shot dead in countries such as Argentina, Bangladesh, Brazil, China, Colombia, Ethiopia, Honduras, Iran, Myanmar, Nepal, Senegal, Somalia, Sudan, Thailand, Turkey, Zambia and Zimbabwe.171 O’Malley has pointed out that there are several factors involved when discussing why risks of attacks are on the rise, explaining for instance that a study in Afghanistan showed that if there “was a perceived increase of risk and attack in areas where communities did not have a sense of ownership of education, did not have a sense of ownership of development in their area, or did not have a sense of ownership of the defense of education”, all these factors increased the

166 167 168 169 170 171

O’Malley, B., Education under Attack 2010, UNESCO, p. 21 O’Malley, B., Education under Attack 2010, UNESCO, p. 22 O’Malley, B., Education under Attack 2010, UNESCO, p. 22 O’Malley, B., Education under Attack 2010, UNESCO, p. 23 O’Malley, B., Education under Attack 2010, UNESCO, p. 18 and 23 O’Malley, B., Education under Attack 2010, UNESCO, p. 23

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risk of attack.172 Depending on the situation, it is important to seriously consider who is building the schools, as for instance in Afghanistan if the government or the international forces builds a school this can have serious implications and the risk of attack against these schools is increased as they might be viewed as having been imposed onto the population.173 O’Malley gives here as an example southern Afghanistan in the region of Pashtun where a school built by the Afghan government could be viewed as another country’s government building this school and forcing it onto the population, and therefore to build ownership at the community level of schools and education is a necessary strategy.174 Another example of factors where the risk of attack is increased is where the government by its school policy is seen as inflicting foreign values, language, culture and a foreign identity.175 Southern Thailand is an example of this situation, as are situations of ethnic conflict where the central government is inflicting its culture, language, or religion into the schools and onto the local population, not showing respect for local culture and preferences.176 To have schools guarded by members of the community and having negotiations with members of the community have proven to be in some cases effective remedies to decrease the risk of attacks. In 2009 an initiative of having the government to negotiate in the different regions was launched in Afghanistan with the aim of reopening some of the 670 schools that had been closed due to the violence.177 In this case the government negotiated with the local population, the local leaders as well as with persons representing the armed opposition including the Taliban. In these negotiations the government wanted to know why the schools had not been opened again, and it was revealed that the local populations were fearing (which the Taliban could have fuelled) that anti-Islamic school ma-

172

O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 13-14 173 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 14 174 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 14 175 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 14 176 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 14 177 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 15

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Providing Education in Armed Conflict

terial and anti-Islamic way of life would be taught in the schools, and there was a perception that the governmental schools were imposed from a foreign place not relating to the local population.178 In the end 161 schools were able to open again after the government had agreed that it was acceptable for the locals to have their school called a madrassa while at the same time they needed to teach the governmental programme of education, and it was agreed that they could hire a teacher who would guarantee that anti-Islamic teachings were not being taught by having the teacher go through the school curriculum and school materials.179 There had been no attacks against any of the 161 schools as of early 2009, and as this example shows that it is possible to negotiate and that solutions to such attacks do not have to involve force, and that it is possible to negotiate with some people within the Taliban movement.180 Another example of where negotiations have been successful in some cases is in the Terah region in Nepal, where the local communities became go-betweens with the negotiating government forces and the rebels, and where the negotiations ended with an agreement that included “that schools should be respected as zones of peace” and that there would be an end to the abductions of the children.181 However as O’Malley notes there are many risks involved with letting the civilian population play such a role in dangerous situations like these. “Rapid repair and recovery of schools” can also lessen how attacks against education impact a community, as can relocating schools into homes as has been done for years in Afghanistan.182 To relocate schools into homes also can result in actually having a school in areas where there are no buildings for school and education has not been provided because of that reason. Many children and youth are deprived of an education when their schools are being closed because of these different attacks, and in Afghanistan about 170,000 children could not go to school as of March 2009 since 670 schools could

178 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 15 179 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 15-16 180 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 16 181 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 16-17 182 O’Malley, B., in Brookings Institution, Education under Attack: Violence Students, Teachers, and Schools in Armed Conflicts, Washington D.C., 2010, Transcript, Anderson Court Reporting, p. 17

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not open again at the time.183 About 900 governmental and private schools were closed in the Swat valley in Pakistan in December 2008 as a result of the Talibans forbidding girls from going to school and this affected about 120,000 girls. Some studies from Afghanistan and Nepal have shown that community involvement is crucial to help schools remain open or being able to be opened. In Afghanistan the NGO CARE showed in a study, Knowledge on Fire, that attacks against schools in the Balkh and Khost provinces had been possible to prevent because of engagement from community members.184 These situations included community members negotiating with would-be attackers, receiving their “permission” to offer education, or community members not letting unknown persons come into their villages, employing night guards, or patrolling the schools when threats had been given185 4.3.3.1.

Global Coalition for Protecting Education from Attacks

As a response to the need to strengthen the protection of education in situations of insecurity and armed conflict, the Global Coalition for Protecting Education from Attacks (GCPEA) was established in 2010 by organizations and specialists in the fields of education in emergencies and conflict-affected fragile states, child protection and international human rights and humanitarian law.186 The Coalition is led by a Steering Committee whose initial membership include CARA (Council for Assisting Refugee Academics), Education Above All, Education International, Human Rights Watch, Save the Children International, UNESCO and UNICEF. The main goals of the Global Coalition for Protecting Education from Attack are:187 – – – –

183 184 185 186

To raise awareness of attacks on education among key actors and cultivate public support for safe education; To identify knowledge gaps around attacks on education and ways to address them, and to foster research to address those gaps; To promote the strengthening of existing monitoring and reporting systems as well as the creation of new systems where needed; To promote effective, coherent, timely and evidence-based programmatic measures, including prevention and response;

O’Malley, B., Education under attack 2010, UNESCO, p. 27 In O’Malley, B., Education under Attack 2010, UNESCO, p. 29 O’Malley, B., Education under Attack 2010, UNESCO, p. 29 Zama Coursen-Neff, HRW, Meeting, New York, February 8, 2011; and Global Coalition for Protecting Education from Attack (GCPEA), April 2010 187 Global Coalition for Protecting Education from Attack (GCPEA), April 2010

Providing Education in Armed Conflict

– –

4.3.3.2.

To encourage adherence to existing international law protecting education and the strengthening of international norms and standards as needed; To fight impunity for attacks on education by promoting and supporting a range of accountability measures.

The United Nations Monitoring and Reporting Mechanism and Attacks Against Schools

Another issue is how “attacks against schools” is being defined by the UN with regards to the Monitoring and Reporting Mechanism (MRM) which Security Council resolution 1612 (2005) set up of which attacks against schools or hospitals is one of the six priority violations to be monitored and reported on. O’Malley raises the question whether such attacks cover attacks against “students, teachers, school support staff, education officials, education trade unionists and education aid workers”.188 The Office of the Special Representative of the SecretaryGeneral on children and armed conflict (OSRSG-CAAC) has used a minimum data set of questions encompassing “nine categories of information” regarding attacks against schools and hospitals, and they include: “Consequences of attack? (Number of children killed/ injured; period of time that the school was closed/ affected; number of teachers killed/injured or other staff )”.189 O’Malley explains that the SRSG-CAAC applies a broad definition on attacks against schools in her recommendation in the Representative’s annual 2009 report on CAAC to the UN Human Rights Council stating that “[p]arties in situations of armed conflict are urged to adhere to international law protecting the right to education in situations of concern. This includes protecting educational institutions and the process of education, including students, teachers, academics and other education personnel. Special attention should be paid to the protection of girls, given the increased targeting of girls’ education in some countries.”190 The UN Security Council Steering Committee issues instructions to the different UN country task forces on how to report on the six different violations of CAAC, and in its instructions to the UN MRM country task force in Nepal, attacks on schools were defined to include “physical attacks against the buildings hosting a school including occupation, shelling, targeting for propaganda, forced closures, forced use of schools by armed groups/forces, physical assaults against school personnel, looting and robbery of school equipment and supplies, restrictions of access”.191 Furthermore, the Steering Committee defines forced 188 O’Malley, B., Education under Attack 2010, UNESCO, p. 135; Here the focus is on “Attacks against Schools”, See further on the Monitoring and Reporting Mechanism (MRM) in Chapter 10 of book. 189 O’Malley, B., Education under Attack 2010, UNESCO, p. 135 190 Emphasis by O’Malley, B., Education under Attack 2010, UNESCO, p. 135: A/ HRC/12/49, (July 30, 2009), para. 62 191 Emphasis by O’Malley, B., Education under Attack 2010, UNESCO, p. 136

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use of schools as “military intervention disturbing regular learning activities: use/exploitation of the places for any purpose (station, bunker, night halt, using water taps/playground; lecture/talk programme/learning programme by armed groups; entering school premises with arms; firing at school premises, exchange of fire through school premises; presence in proximity with the building)”.192 The MRM Country task forces “are also instructed to count the number of teachers/ staff killed and injured, the number of children/students killed and injured, and the combined number of threats to teachers and students”. The Office of the SRSG-CAAC sends out “requests for data” on the MRM to the different country task forces, and with regards to “attacks against schools” these forms ask for information on attacks against education buildings, and the killing and injury of students, teachers and other education staff.193 The UN Security Council Working Group on children and armed conflict instructs that the country task forces report “on occupation or forced closure of schools, and against school personnel”.194 However, attacks against schools and students, teachers and school personnel are much underreported in the SG’s reports on CAAC, and from February 2008 to February 2009 the Security Council Working Group on children and armed conflict had issued 141 recommendations, of which six concerned “attacks against schools”.195 As an example the SG’s reports have contained very limited information on “attacks against schools” in situations where this violation has been prevalent such as in Thailand, Colombia, DRC, Somalia and Sudan. O’Malley argues that it is clear from the above that a broad definition on attacks against schools is to be used and that the UN MRM country task forces are to report on not only school buildings but also on attacks against students, teachers and education personnel, but he wonders “why is it not happening in practice?”.196 Some of the reasons as to why attacks against schools are so underreported have been that: “attacks against schools” has not been a violation that has automatically triggered a country task-force and required that parties that are responsible for such attacks be listed in the two annexes to the annual report on children and armed conflict of the Secretary General until Security Council resolution 1998 (2011); and those UN agencies and NGOs that have knowledge about education issues are not part of the MRM country task forces, and together with that there has not been much experience in general to draw from in how to report on attacks on education.197 Thus those different actors that work and have experience with education are not providing the country task forces with information, 192 193 194 195 196 197

O’Malley, B., Education under Attack 2010, UNESCO, p. 136 O’Malley, B., Education under Attack 2010, UNESCO, p. 32 O’Malley, B., Education under Attack 2010, UNESCO, p. 32 O’Malley, B., Education under Attack 2010, UNESCO, p. 32 O’Malley, B., Education under Attack 2010, UNESCO, p. 136 O’Malley, B., Education under Attack 2010, UNESCO, p. 33

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and they are not involved in recommending what kinds of actions that need to be taken to solve the problems. The UN MRM reporting on attacks against schools have only involved physical attacks, with the result that other different types of threats against children and systems of education or the consequences for the children and these systems from such attacks and threats have not been reported on.198 One recommendation that O’Malley makes is that “targeted funding” to “education-oriented UN agencies and NGOs” for them to build capacity on the MRM should be offered within the context of attaining the goal of Education for All as not having enough personnel and funds are some reasons as to why these actors are not part of the MRM.199 As has been noted before, many UN agencies and NGOs that are part of MRM country task forces have not received any extra funding or resources to work on MRM, which includes staff having the knowledge of and experience in the different violations, and furthermore concerns about security, punitive actions by perpetrators, and issues of partiality and neutrality also impact the level of engagement by the different international and local actors in the MRM.200 Regarding the distinction between attacks against schools and attacks against education, issues such as whether security guards and escorts for teachers, teachers and education trade unionists, academics and higher education personnel, and education officials should be covered by the MRM is being discussed in the UNESCO 2010 report. With regards to security guards and escorts, the OSRSG-CAAC takes the position that “if there is a clear pattern of attacking convoys of teachers”, then attacks against security escorts could be covered by the MRM.201 Furthermore, “if the teachers are escorted by soldiers” and not the police being a civilian force, this would raise problems. However, O’Malley means that the actual reasons for such attacks need to be taken into account as both soldiers and police are usually viewed as state symbols by “rebels” who are fighting a given government.202 O’Malley includes in the UNESCO 2010 report military personnel that are to guard teachers in the definition of attacks on the right to education, since an attack against such personnel “represents an attempt to prevent the protection of teachers”.203 The MRM has not encompassed attacks on “teacher trade unionists, higher education personnel and education officials”, categories which O’Malley means also should be included in the MRM.204 A teacher that is engaged politically or in a trade union and is being attacked doing so has not been covered by the MRM, 198 199 200 201 202 203 204

O’Malley, B., Education under Attack 2010, UNESCO, p. 137 O’Malley, B., Education under Attack 2010, UNESCO, p. 137-138 O’Malley, B., Education under Attack 2010, UNESCO, p. 137 O’Malley, B., Education under Attack 2010, UNESCO, p. 138 O’Malley, B., Education under Attack 2010, UNESCO, p. 138 O’Malley, B., Education under Attack 2010, UNESCO, p. 138 O’Malley, B., Education under Attack 2010, UNESCO, p. 138-139

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as such an attack has not constituted an attack against schools. Wargo at the OSRSG-CAAC explained to O’Malley the difference in saying that “[i]f they are attacked in a school with students then it is very clear that they are being attacked as part of the whole education infrastructure. If they are outside of their community, they are engaged in political activity, they may be teachers but they are teachers second, they are political activists first”, and went on to state that “[w]e’d always have to ask the crucial questions: Why were they attacked? What are the events surrounding the attack? Is it just after a meeting of trade union officials or is it in the school?”205 However, as Jan Eastman at Education International has stated “[t]eachers are the most important and expensive resource in the education process. Schools can exist without buildings … but they cannot function without teachers. If teachers stop going to work due to death, injury or fear, children will not be taught.”206 Eastman also notes that the education system, education curriculum, educational standards and values are developed through national dialogues which teacher trade unions are engaged in, and in dialogues in which teachers play an important part, and as such it is an attack on the education system if teacher trade unionists are being attacked when they perform such tasks.207 Further, “the quality of the education” they give could be negatively affected by such attacks on teacher trade unionists. The protection of academics and higher education personnel is not part of the MRM as the MRM covers the six priority violations of children up to 18 years of age. However, O’Malley argues here that the protection of the training and qualifications that universities provide to teachers needs to be considered, but that the scope of the issue and its importance has not been recognized.208 Also, attacks against academics and higher education personnel can be politically sensitive, as actors connected to the state seem to be responsible for the majority of such attacks. O’Malley further means that attacks on education officials need to be part of the MRM as “[a]ttacks on individual officials or administrative buildings are an attack on the capacity of the education system to function”.209 O’Malley gives several suggestions on how attacks against schools and education can be prevented, addressed and ultimately protected underlying that “[p] rotecting education from attack is vital not only for the well-being of individuals but also for increasing development, reducing fragility and promoting peace and stability”.210 He establishes in the context of the recommendations he issues a “general principle” which says that “[t]he International community should 205 206 207 208 209 210

In O’Malley, B., Education under Attack 2010, UNESCO, p. 138-139 Jan Eastman in O’Malley, B., Education under Attack 2010, UNESCO, p. 139 O’Malley, B., Education under Attack 2010, UNESCO, p. 139 O’Malley, B., Education under Attack 2010, UNESCO, p. 139 O’Malley, B., Education under Attack 2010, UNESCO, p. 140 O’Malley, B., Education under Attack 2010, UNESCO, p. 36

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promote respect for schools and other education institutions as sanctuaries and zones of peace in order to protect the right to education”, and the recommendations O’Malley offers include:211 –

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211

Entering into special agreements between parties to confl ict not to attack education students, staff, personnel or buildings or their vicinity, educational processes such as exams, or other aspects of provision; The UN should encourage international courts such as the ICC to provide an adequate deterrent to attacks on schools and education institutions, students, teachers, academics and other education staff, including education officials, trade unionists and aid workers, by actively pursuing high-profi le cases relating to attacks on education; The Security Council Working Group on Children and Armed Conflict should help deter attacks on schools and violations against children by requesting that the Secretary-General include in his reports the names of individual commanders who have been implicated through credible evidence in attacks against education for possible referral to relevant sanctions committees or for investigation by the ICC. This requires investigations not only of individual cases but also of patterns within a particular chain of command that can establish accountability for such violations among senior commanders or officials; The international community should support the establishment of a global system of monitoring attacks on the full range of education targets (including students from early childhood to higher education, teachers, academics, other education staff, education trade unionists, education aid workers and education facilities), comprising: -Annual global reporting on this problem using common data sets to enable analysis across countries and over time; -A publicly accessible global database; and -The establishment of an observatory or clearing house where data, research and reports on attacks on education can be gathered and made public; MRM country Task Forces, education ministries, human rights NGOs, trade union organizations and education organizations should improve their data and information collection on attacks on education to include information about the impact on education provision and quality, such as the closure of schools, enrolment, attendance and retention rates, and recruitment rates of teachers and other education personnel; the psychosocial impact on victims and affected communities; and the rate of investigations and prosecutions for attack in order to determine progress on ending impunity; The International community, UN agencies and NGOs should work with governments of conflict-affected states and governments assisting in preventing or limiting confl ict to develop: -Mechanisms to protect threatened students, teachers, academics, education support staff, education trade unionists, edu-

O’Malley, B., Education under Attack 2010, UNESCO, p. 34, 36, 37, 38, 39

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cation officials and education aid workers and to assist them in relocating internally or externally where appropriate.

The UN had a MRM country task force in 14 countries by the time of the UNESCO 2010 report which also monitored and reported on attacks against schools and this should be contrasted to the 31 countries that the UNESCO 2010 report listed as where attacks against education had taken place from January 2007 to July 2009.212 For instance, as O’Malley noted in the SRSG’s 2009 annual report on CAAC, countries such as India, Iran, Pakistan and Zimbabwe where attacks against education had taken place during the reporting period were not mentioned at all. To be able to more forcefully address the MRM violation “attacks against schools and hospitals” the Security Council expanded the list of triggers in 2011 when it adopted resolution 1998 and also requested in paragraph 3 the Secretary-General to include in his lists in Annexes I and II to his annual report on children and armed conflict “those parties to armed conflict that engage, in contravention of applicable international law”:213 (a) (b)

in recurrent attacks on schools and/or hospitals; in recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals in situations of armed conflict, bearing in mind all other violations and abuses committed against children, and notes that the present paragraph will apply to situations in accordance with the conditions set out in paragraph 16 of its resolution 1379 (2001).

This means that parties that are responsible for attacks on schools and protected persons in relation to schools are also to be listed in either of the two annexes to the Secretary-General’s annual reports on children and armed conflict. As is also noted in resolution 1998 paragraph 6(b) the parties that are to be listed are to establish separate action plans for each violation that they may be listed for. At the time of writing it is not clear who these “protected persons in relation to schools” are, except students, teachers and principals, and therefore it is of great relevance to take into account O’Malley’s considerations regarding this issue at this time. Sheppard from Human Rights Watch has raised the importance of looking at patterns in order to be able to determine what kinds of preventive actions that could be taken to stop attacks from taking place, such as that attacks on schools in Afghanistan decrease in the winter, and when spring comes such attacks increase, and that schools most likely get attacked at either the beginning or end of

212 O’Malley, B., Education under Attack 2010, UNESCO, p. 130 213 S/RES/1998 (2011), 12 July 2011, on Children and Armed Confl ict, See further on the MRM and resolution 1998 (2011) in Chapter 11 of book.

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the school semesters in Thailand.214 There is a need to have some form of monitoring going on at the local level that informs the government about problems, as the Secretary of Education for the Jharkhand state in India told Sheppard that there was no system in place in her state that would let her know if a school had been attacked, and that it was from the newspapers that she received information about such attacks.215 With regards to the issue of which actor or actors should monitor attacks against schools, Sheppard points out that it needs to be the government and the ministry responsible for education that first of all has the responsibility to find out what is taking place within its education system such as attacks against schools.216 Further, Sheppard means that ministries of education need in addition to monitor education trends such as why students drop out of school, or when there has been an attack on a school to look at if the pupils and the teachers have returned to the school after the rebuilding of the school, and in cases where they have not question why.217 For instance in Thailand and in Pakistan in Baluchistan Sheppard explains that “suddenly there’s been a spike in applications by teachers asking to be transferred to another district”, and these kinds of patterns need to be examined. However, in many places apart from not having the ability to monitor, if a government or groups used by a government are behind these attacks, it is not likely that a government will monitor them.218 With regards to the UN, Sheppard notes that especially UNICEF is the agency to do the monitoring on attacks against schools, however, one issue is that UNICEF is not present in all areas needing assistance, such as in Southern Thailand, while in other areas UNICEF has decided that attacks on schools will not be its main focus even as UNICEF is present, such as in the states of Jharkhand and Behar in India.219

214 Sheppard, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 23 215 Sheppard, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 23 216 Sheppard, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 24 217 Sheppard, B, in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 24 218 Sheppard, B, in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 25 219 Sheppard, B., in Brookings Institution, Education under Attack: Violence Against Students, Teachers, and Schools in Armed Conflicts, Washington D.C., May 17, 2010, Transcript, Anderson Court Reporting, p. 25-26

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Furthermore, for instance UNESCO that has commissioned the two reports on Attacks against Education of 2007 and 2010 is not present like UNICEF in conflict affected areas, and is therefore not well equipped to monitor events. 4.3.3.3.

The International Criminal Court and Attacks Against Education

The case against Thomas Lubanga Dyilo before the International Criminal Court (ICC) included charges for conscripting children under the age of 15 and using them in hostilities, but representatives of a school in Mahagi territory in the DRC are claiming to be indirect victims of these charges and are asking for reparations as they “consider that the charges which are put in terms of conscription and enlistment are insignificant when you consider what we have experienced in Mahagi territory”.220 One representative of this school has testified before the International Criminal Court as a participating victim on January 12 and 13 in 2010 where he explained that:221 … Between 5 and 7 January 2003 there were – was a clash – or there were clashes in which you had the UPC armed group against the FNI armed group. These clashes caused a lot of problems around our school, and because it was around our school that these clashes occurred, and what we particularly regretted with regards to what happened then is that when the armed groups, the UPC, which had its chief of staff in a centre situated three to four kilometers from the institute, it carried out its patrols. There was an FNI group. They also were there three to four kilometers from there and, unfortunately, these groups were playing a game of cat and mouse, and they were next to our school, and the clashes commenced. And in these clashes a lot of harm was caused, because the UPC armed group had chosen this school as their base to be able to base, to fight the enemy. And the fighting lasted all day, and for up to eight kilometers from the school, because the UPC was chasing out the other group.

The witness further stated that:222

220 Fadi El Abdallah, Associate legal Outreach Oficer, Public Information and Documentation Section, Email, October 27, 2010, and ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T: Parts of the witness’ testimony was given in closed sessions and was expunged from the transcript, p. 31 221 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T: Parts of the testimony was given in closed sessions and was expunged from the transcript, p. 19; the identity of the witness was not disclosed and as much of his testimony was given behind closed doors those part of the testimony are confidential. 222 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T

Providing Education in Armed Conflict

An UPC armed group came to this school and used it as a rear base for themselves, while they clashed with a FNI group in the vicinity of the school, and while at the school the UPC abducted children to recruit and use them as child soldiers.

The witness was asked what the consequences or effects of his actions were when he attempted to stop the children from being captured:223 … The consequences of my actions are multiple. There are several consequences to my actions, and they are serious. The first direct consequence is the blows that I received subsequent to my intervention. I received several blows, and my physical state changed as a result. Another consequence is that there was material lost, whether it be my personal property or property of the school. There are also other consequences that come to mind; notably, the harm, which is still very much present in my mind. Notably, the fact that my life might come to an end one day, because speaking to you now, I find it difficult to concentrate. And sometimes my lack of concentration means that I lose grasp of the situation. And I have blank moments. I have difficulties reasoning. And these are the effects and the results of the blows that I received, and this is detrimental to me.

The witness was asked “What was the situation at the school after the attack that you spoke of?”, and he responded:224 … After the attack, we are referring to the events of 5 February. The children had gone. They had to momentarily halt their schooling, and the school was temporarily shut down to avoid the worst. As for Etienne I think that there are some files that I did not send you, unfortunately, that bear witness to the fact that our school was relocated, because the school was subject to all kinds of danger and could not function within the (Expunged) for a while, because the parish was off to the side. So we had to do this in the interest of the children who were still haunted by this difficult situation.

The Court asked “What were the consequences of the shut down or, rather, the relocation of the school on the children? What was their fate, who were going to that school?”, and the witness responded:225 … The consequences were many in number. At that time, after the danger that was created by the UPC armed group, we – we saw that many children dropped out of school. They left the school because of the relocation of the school. Other students were too far away and so they just withdrew. And, once again, we saw that many

223 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T, p. 26 224 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T, p. 30 225 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T, p. 30

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students are behind now, they are behind in their schooling because they dropped out of school because of the danger, or because the school had been relocated and they had to consider the distance they needed to travel to go to school. So we saw an overall drop in the level of education of the local children.

Considering that this testimony was given in January 2010 and the attacks referred to in the testimony took place in 2003, it is telling that these attacks still cause consequences for the children seven years after the attacks in that many children are lagging behind in their education because they had to drop out of school because of the danger or because the school had to relocate and it has been located too far for them to get to the school and there have been no other alternatives available. This case clearly shows that the concept of attacks against schools needs to encompass attacks against education, as it is not the mere physical attacks against school buildings, school grounds, students, teachers and staff that are being affected but the inability to offer an education as a whole. In this case seven years after the attack that took place in 2001, some children have still not been able to go to school and have thus missed out on their education as a whole. They did not merely miss out a year or two, they missed out on their whole education. Furthermore, when the witness was asked why he wanted to come to the Court and testify and what the purpose was with his testimony, he responded that:226 … I consider it appropriate to come and testify before this high International Court to be able to speak about the situation which occurred in the Mahagi territory. You know, you Honour, the territory of Mahagi was forgotten. It was – it did not constitute the subject of a serious investigation by the International Court, while this was a territory which was victim of a lot of abuses. And if we have taken a few examples of pupils that were enlisted, this is only a small sample of what really happened. If we spoke about torture, this is only one example. This was an opportunity for us to be able to say to the world what happened in Mahagi territory and to ask for reparations, if possible, such that this reparation be linked – perhaps some people might doubt this – they could carry out an investigation to be able to establish guilt in this regard because, in our humble opinion, we consider that the charges which are put in terms of conscription and enlistment are insignificant when you consider what we have experienced in Mahagi territory. There were murders, killings, sexual violence. There were cases of all this. Sexual slavery. The list is too long. So I have just come to the Judges who are prosecuting the Thomas Lubanga case to state these elements of the truth to them with certain evidence which you have been able to note.

226 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T, p. 31

Providing Education in Armed Conflict

One question to the witness was “You also said that the UPC had chosen the school as their base to fight the enemy”, and asked if the witness could elaborate on this a bit more:227 … I said that on this date, 5 January, during their patrols they met the enemy. And when they chased out the enemy, they left their rear base in our institute, because, you know, this is a troop who basically pillaged. They took goats, et cetera, chickens. And in this rear base this was – allowed them to reorganise things and to prepare food, as well, as they advanced. It was in this sense that they transformed the school into a rear base, because this – their Chief of Staff was three to four kilometers away, and they faced the enemy when they came to the institute so they left a team there who would – they would stock ammunition there. And the others would continue to drive out the enemy. And on this day, I remember they have driven the enemy to *Rethy. There is a village called *Rethy, and that goes in the parish of Jerasara (phon), where they also pillaged this parish of Lesanat (phon), and a lot – I don’t know how many people died. The local population is a witness to what happened during this time, and it was horrible.”

The witness was asked “When the – during the time that the UPC had a base at the rear of the institute what were the children doing?”, and he responded that:228 … I would ask the question, how could the children stay at the school? Just to do what, to be killed? How could the population stay on the wary – on the battle ground? It’s difficult. So that’s just to say that the village, the school, everybody, everything was deserted. It was only those who were in uniform who made the law, and it was the arms that spoke.

Mr. Sachdeva asking questions on behalf of the prosecution asked the witness “When you were negotiating the – the release or the – the incident with the children, you said that they had told you that they were doing their work. What did they mean by that? …”, and the witness responded:229 When I said that they were doing their work, well, it wasn’t me who said that. Somebody told us that they were doing their work on behalf of their chief in order to seek new or further soldiers. I negotiated for the liberation of release of those children, and they requested that I give them some money, which I did not have. They thought that I had become a nuisance for them, because, as they said, they were only doing their job with a view to abducting children that they would then seek to enlist

227 ICC-01/04-01/06-T-225-Red-ENG WT 12-01-2010 35/68 EA T, p. 34-35 228 ICC-01/04-01/06-T-225-Red-FRA WT 12-01-2010 1-83 EA T, p. 35-36 229 ICC-01/04-01/06-T-225-Red-ENG WT 12-01-2010 35/68 EA T, p. 39-40

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in order to boost or beef up their ranks. So I was not the person who said that. … their chief was Mr. Thomas Lubanga.

Mr. Sachdeva said to the witness “Witness, you spoke about children that were abducted on the – in February 2003, and you spoke about one person who was abducted (Expunged) because he had finished his exams previously. How did you come to know that that abduction had taken place?”, and the witness answered:230 … I spoke of the abduction which occurred (Expunged) (Expunged) a child who had previously finished his examinations and had gone home. Now, I heard this piece of news in view of the fact (Expunged) (Expunged) and, of course, I was the person who was going to receive such a piece of information as a result.

The school had opened in 2001 and the witness was first its teacher in charge, then its professor in charge and then its supervisor.231 4.4.

Country Case Studies and the Provision of Education in Situations of Armed Conflict

4.4.1.

The Upper Nile State, Blue Nile State, South Kordofan and Abyei in South Sudan

The situation in Upper Nile State (UNS) in south Sudan after 21 years of armed conflict is a very good example of the many challenges that countries face when they plan to re-build or build from scratch the education sector. The government of the Upper Nile State assisted by the UNDP worked out a Strategic Plan for the education sector after the signing of the Comprehensive Peace Agreement for the Upper Nile State in south Sudan, and the Strategic Plan gives the following description of the state of the education sector in Upper Nile State after decades of war:232 In general, the education sector in UNS is weak largely due to a legacy of 21 years of conflict and a lack of resources. This has resulted in an education system that does not serve many school age children. The statistics obtained from the counties does not accurately give information about the number of children enrolled or provide levels of enrollment between girls and boys. However, calculations based on the under 15 years old population (and assuming this is the school going age group), 230 ICC-01/04-01/06-T-225-Red-ENG WT 12-01-2010 35/68 EA T, p. 42 231 ICC-01/04-01/06-T-225-Red-ENG WT 12-01-2010 35/68 EA T, p. 53-55 232 Upper Nile State (UNS), Strategic Plan 2007-2009, Governor of Upper Nile States, with support of UNDP, 2007, Revised version 2009-2011, in Schellekens, Leo, Education and the mitigation of confl ict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 6-7

Providing Education in Armed Conflict

shows that the UNS has a 40% of school-age children. Out of this group only 5% are enrolled in the schools. The drop out rate of 88% for girls after Grade 4 is very high, but the drop out rate for girls in higher grades of 95% is even more serious with only 5 out of 100 girls who enroll in P1 completing P5. The inequality of girls’ access to education is illustrated by the 60% literacy rate for men compared to 30% for women. Girls access to education is hindered by traditional and cultural attitudes that place less importance on girls attending school; early marriage and concerns about a girl’s dowry; lack of women role models; and a division of labor that unfairly burdens women and girls. Women’s lack of education, particularly due to an overburdened workload, is a serious concern. Women’s responsibilities include food production and processing such as planting, weeding, harvesting, and pounding grain; household construction and maintenance; tending to the animals; and taking care of the children, sick, disabled, and elderly. Women do not have free time to attend school while young girls frequently cannot attend school because they are needed at home to assist women with work and care of younger children.

There is a shortage of school administrators and teachers. Most teachers work on voluntary basis. Schools are in desperate need of physical rehabilitation and a standardized curriculum. BRIDGE is providing support to the education sector in Upper Nile State, Blue Nile State, South Kordofan and Abyei, and the purpose of this support is to through the education sector be able to mitigate the effects of conflict and fragility, by giving assistance to:233 1.

2.

Strengthening the Education provision by the Government at State, County/ Locality and Community level thereby reinforcing the legitimacy of the Government and demonstrating that the Government is in the driver’s seat to manage education services. Improving school systems at the local level in collaboration with the governments and the civil society by supporting communities in developing PTAs and CEC’s that advocate to education officials for ongoing needs such as text books, teacher training and facility upgrades.

With regards to the ability of the Blue Nile State, South Kordofan and Abyei to reach by 2015 the MDGs several challenges make such an achievement problematic such as: “lack of adequately qualified teachers; high number of out-of-school children, especially girls; lack of consensus on curriculum; fragile and unsafe school structures; shortage of school learning materials; conditions that cause children’s poor health; weak local governments to support schools; lack of community capacity to plan; low levels of public investment in education; and un233 Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 7

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availability of data”.234 All these states, Blue Nile State, South Kordofan and Abyei, are faced with a multiple of these conditions in various ways:235 1.

2.

3.

South Kordofan has a gross enrolment rate of 51.9 % (58.2 % for boys and 45.5% for girls), and as result of decades of conflict existing schools do not have facilities for water or sanitation, and a number of classrooms are in decay and do not have any furniture where about 40% of the pupils have to sit on the floor.236 The Blue Nile State has three main challenges in its education sector: lack of qualified teachers and resources and high drop-out rates. Furthermore, a dual education system is being administrated. About 17% of the teachers have graduated from university and 20% of the schools have walls to surround the schools. Classes are very large or overcrowded, and there is about a 39% drop out rate. While progress has been made with regards to enrolment in the primary school level, there was still a 33% drop out rate in 2010.237 Abyei is extremely underdeveloped because of decades of armed conflict and displacement, and the state governance of the education sector “is almost absent”, where the sub-department of education “is seriously understaffed, the building dilapidated, no computers, desks chairs, etc. Also, the sub-department is not coordinating its development partners.”238 Therefore the priority for the education sector in Abyei is to strengthen and build up the Department of Education so that it will take leadership over the education sector.

Continuous conflict in these areas is a continuous challenge, affecting the whole area, risking further disrupting the development of an education system. 4.4.2.

UNRWA and Providing Education in the Occupied Palestinian Territory

It is the United Nations Relief and Works Agency for Palestinian refugees in the Near East (UNRWA) that provides education to children registered as refugees 234 Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 18 235 Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 18 236 The information is compiled from Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 18 237 The information is compiled from Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 18-19 238 The information in compiled from Schellekens, Leo, Education and the mitigation of conflict and fragility, Bridge, USAID, Sudan, 26/27 May 2010, Juba, South Sudan, p. 19

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under its mandate in the Gaza Strip, the West Bank including East Jerusalem, Syria, Lebanon and Jordan.239 One problem in East Jerusalem is that there is not enough schools for the Palestinian children, as for instance in 2009 there were only 35 schools for the children in East Jerusalem in comparison to 169 in West Jerusalem, even as the Palestinian children make up one-third of all school aged children in the whole of Jerusalem.240 That the school environment has long been difficult for the Palestinian children is shown by a study from 2004 by the Birzeit University.241 The study revealed that “45% [of the school children] witnessed their school besieged by Israeli troops; 25% witnessed their school exposed to firing and shelling; 18% witnessed troops kill a schoolmate; 13% witnessed the killing of a teacher in school; 45% witnessed violence in school on a daily basis over the past year; 37% were exposed to physical violence; 51% used physical violence against school mates; 44% of teachers used physical punishment against students; 52% of fathers and 60% of mothers resort to physical punishment of children; 55% of domestic violence victims said they’d keep it a secret.”242 Since Israel restricted the movement of the Palestinian adults in East Jerusalem with regard to being able to access the Israeli labour market, there was a significant rise in the number of children who in order to support their families engage in casual labour.243 With regards to UNRWA’s work, with the Second Intifada in 2000 the situation dramatically worsened and at that moment the view of UNRWA changed.244 During 2002–2003 UNRWA needed to reorganize its structure that would reflect the new political and military situation. Switzerland took the initiative to modernize UNRWA in 2004 by hosting a conference in Geneva on UNRWA.245 In connection to the conference several thematic seminaries were organized with the purpose to reform the work of UNRWA, and for instance Sweden, the European Commission, PLO and the US were each responsible for different thematic seminaries and different political areas.246 The European Commission got the responsibility for the economic area and Sweden got the responsibility for the refugee children. For children under the age of 18 years, Sweden chaired the conference’s working group “Promoting the Well-Being of the Palestinian Refugee 239 UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008 240 Jerusalem Center for Women, www.j-c-w.org, accessed June 15, 2009 241 See UNICEF, Occupied Palestinian Territory, The Children, Primary school years, www.unicef.org/oPt/children_215.html, Birzeit University, Summer 2004. 242 See UNICEF, Occupied Palestinian Territory, The Children, Primary school years, www.unicef.org/oPt/children_215.html, Birzeit University, Summer 2004. 243 Jerusalem Center for Women, www.j-c-w.org, accessed June 15, 2009 244 Per Örneus, Meeting June 12, 2008, the Swedish Foreign Ministry, Stockholm. 245 SDC the Swiss Agency for Development and Cooperation, UNRWA, The Geneva Conference 7-8 June 2004: Meeting the Humanitarian Needs of the Palestinian Refugees in the Near East: Building Partnerships in Support of UNRWA 246 Per Örneus, Meeting June 12, 2008 at the Swedish Foreign Ministry, Stockholm

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Child”.247 Sweden identified through a series of workshops with for instance the Red Crescent, the Palestinian Authority, PA, the PA minister of youth and the ICRC different issues regarding the refugee children that included their specific exposure in armed conflict and the importance of having a human rights perspective when addressing the situation for children.248 The purpose of the workshops was to find a way to strengthen the rights of children and as a result some recommendations came out, and one action that Sweden took upon itself was to finance a position with UNRWA for child protection, called “senior protection policy adviser”.249 UNRWA provides education, healthcare, relief, social services, micro-credit loans and emergency aid to the Palestinian refugees who are under its mandate in the Gaza Strip and the West Bank with East Jerusalem, and Syria, Lebanon and Jordan.250 By 2008 over 4.5 million Palestinian refugees received assistance from UNRWA. When it comes to education, UNRWA builds and by 2008 ran 684 schools with about 481,130 students.251 UNRWA’s education programme is its biggest and more than 50 per cent of its budget is allocated to this programme, and over three-quarters of UNRWA’s personnel are working in the programme.252 UNRWA has had a very good record in the past regarding providing education to the Palestinian refugees. In the 1960s UNRWA introduced in the Middle East the first policy where enrolment in schools for boys and girls should be equal.253 Palestinian refugees have always valued education and have the reputation of being among the best educated in the Middle East. However, this positive development has been changing in especially the Gaza Strip, the West Bank

247 Working Group I: “Promoting the Well-Being of the Palestinian Refugee Child”, Discussion Paper, Chair Sweden, 6 May 2004, SDC the Swiss Agency for Development and Cooperation, UNRWA, The Geneva Conference 7-8 June 2004: Meeting the Humanitarian Needs of the Palestinian Refugees in the Near East: Building Partnerships in Support of UNRWA 248 Per Örneus, Meeting June 12, 2008 at the Swedish Foreign Ministry, Stockholm 249 Per Örneus, Meeting June 12, 2008 at the Swedish Foreign Ministry, Stockholm; and See documents: SDC the Swiss Agency for Development and Cooperation, UNRWA, The Geneva Conference 7-8 June 2004: Meeting the Humanitarian Needs of the Palestinian Refugees in the Near East: Building Partnerships in Support of UNRWA; and Working Group I: “Promoting the Well-Being of the Palestinian Refugee Child”, Discussion Paper, Chair Sweden, 6 May 2004, SDC the Swiss Agency for Development and Cooperation, UNRWA, The Geneva Conference 7-8 June 2004: Meeting the Humanitarian Needs of the Palestinian Refugees in the Near East: Building Partnerships in Support of UNRWA 250 UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008 251 Public Information Office, UNRWA Headquarters (Gaza), February 2008 252 UNRWA, General Fund Appeal, 2008-2009, p. 8 253 UNRWA, General Fund Appeal, 2008-2009, p. 8

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and Lebanon.254 For instance in Gaza standards have been lowered and students have been falling behind (this was even before Operation Cast Lead between late December 2008 and the beginning of January 2009). As an example, in 2008 UNRWA reported that regarding mathematics for grades 4 to 9 about 60 to 80 per cent of the students failed, and regarding Arabic about 40–60 per cent of the students failed.255 A survey in the OPT comparing “private, UNRWA and Palestinian Authority (PA) governmental schools” published in a World Bank report in September 2006, showed that the PA and UNRWA schools were falling far behind private schools.256 There have been several reasons for this deteriorating development. These include under-investment in the school facilities, lack of funding, double-shift ing of schools and a need for more quality training of the teachers.257 In Gaza because building material has not been allowed into Gaza due to the siege, construction and repairs of schools have not been able to take place.258 This has meant that toilets and windows in schools have remained broken. To improve the situation in its schools, UNRWA has been working to have fewer children in its classrooms, there are about 41 children per class in 121 schools.259 Also, UNRWA has addressed the overcrowding in its schools by providing schooling in double-shifts as most of the other Palestinian schools do.260 That means that the same school building is being used for two different schools, with the schools being open at different times with one school being open during the morning and the other one during the afternoon. About 77 per cent of the

254 Andrew Whitley, Director of the Representative Office UNRWA meeting at UNRWA Office, New York, March 24, 2008, see also UNRWA, General Fund Appeal, 2008-2009, p. 9 255 Table in UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008: The Palestinian Authority Education Ministry’s Centre for Measurement and Evaluation set up and corrected an Independent Testing of mathematics and Arabic in the Gaza schools. 256 UNRWA, General Fund Appeal, 2008-2009, p. 9; the World Bank report is called “West Bank and Gaza: Education Sector Analysis – Impressive Achievements under Harsh Conditions and the Way Forward to Consolidate a Quality Education System, the World Bank Group, Middle East and North Africa, Human Development Group, September 7, 2006”. 257 Andrew Whitley, Director of the Representative Office UNRWA, March 24, 2008 and UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008: This was before Operation Cast Lead Dec. 2008-Jan. 2009 258 UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 259 UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008 260 UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008

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schools operated by UNRWA provided double-shift ing in 2006.261 In addition the continuous home demolitions have severely impacted the living conditions of the children, and have consequences for a child’s performance in school. Another serious factor is the many curfews and closures in Gaza and the West Bank that severely hinder the children from accessing schooling in that the freedom of movement for them becomes limited.262 As UNICEF has explained this lack of access and lack of freedom of movement have had the consequence that many children as well as teachers cannot get to the schools either at all or on time. UNRWA has attempted to provide long distance education, but it was not successful because families do not have internet connection at home or always electricity.263 UNICEF has reported that because of the military operations, closures and curfews, schools in the West Bank “have fallen behind on the curriculum”.264 Another factor is high drop-out rates of especially younger boys. UNICEF has further reported in 2008 that one in three of younger males between 15 and 19 years of age drop out of school in the OPT.265 These boys drop out of school to work instead to provide an income for their families, however 20 per cent of them are unemployed. The girls that drop out of school are expected to get married and have children.266 About 18 per cent of the 15 to 19 years old girls get married, however more than one in ten divorce their husband soon after their wedding.267 In the Palestinian refugee camps in Lebanon that the drop-out rates are high for boys has had the consequence of creating a gender gap in the UNRWA schools with a ratio of 70 girls to 30 boys.268 The young boys drop out of schools because going to school does not seem to provide them with a better future, in a context where there have been high unemployment rates and few academic possibilities for adult Palestinian refugees in general in Lebanon.269 Another issue for UNRWA is identifying and providing education to children with special needs. UNRWA believes that in its schools about 20 per cent of 261 UNRWA, General Fund Appeal, 2008-2009, p. 10 262 UNICEF, Occupied Palestinian territory, Overview, p. 1 of 3, http://www.unicef.org/ oPt/overview.html, accessed 2008-06-04 263 Andrew Whitley, Director of the Representative Office UNRWA meeting at UNRWA Office in New York, March 24, 2008 264 UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 1 265 UNICEF, Occupied Palestinian Territory, Adolescents, Action, www.unicef.org/ oPt/adolescents.html, May 22, 2008 266 UNICEF, Occupied Palestinian Territory, Adolescents, Action, www.unicef.org/ oPt/adolescents.html, May 22, 2008 267 UNICEF, Occupied Palestinian Territory, Adolescents, Action, www.unicef.org/ oPt/adolescents.html, May 22, 2008 268 UNRWA, General Fund Appeal, 2008-2009, p. 11 269 UNRWA, General Fund Appeal, 2008-2009, p. 11

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all the children would need special education, but are not given it.270 To remedy the situation UNRWA launched a programme to provide education to children with “Special Education Needs” (SEN).271 The UNRWA Gaza Field Office put in place an action plan in 2008 to improve the situation and the measures to be implemented have included providing remedial education, to reduce class sizes to 30 students for boys at the preparatory level and providing more classes in Arabic and mathematics.272 The boys at the preparatory level were shown to have scored the worst of all students in the tests given. The schools have tried to provide make-up classes, but it has not been enough and the end result has been a loss of education for these children.273 However, the action plan showed some positive effect regarding remedial education in Gaza, because subsequent results showed a marked improvement in academic performance in UNRWA schools among previously failing students.274 UNRWA provides different educational programmes that aim to help young people escape poverty and radicalization.275 With the Gaza Strip as an example, in 2008 about 196,000 children were registered in UNRWA’s schools in Gaza, but because of the security situation only 100,000 children were actually attending.276 Because of the increased violence in Gaza the schools have not been safe anymore, since violence takes place all around. A typical situation that developed was that children have gotten shot inside school rooms because of the violence that has taken place on the school grounds between Israeli forces and Palestinian groups.277 Statistics have shown that if children are too close to the fighting, the children are injured or killed. To counter the sense of insecurity and fear that 270 271 272 273 274 275

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UNRWA, General Fund Appeal, 2008-2009, p. 11 UNRWA, General Fund Appeal, 2008-2009, p. 11 UNRWA Gaza Field Office, Schools of Excellence information sheet, 2008 Andrew Whitley, Director of the Representative Office UNRWA, Meeting at UNRWA Office in New York, March 24, 2008 Information from Andrew Whitley, Director of the Representative Office UNRWA, New York, September 30, 2008 Andrew Whitley, Director of the Representative Office UNRWA, New York, The Humanitarian Crisis in Gaza and Beyond, The Foundation for Middle East Peace and the UN Association of the National Capital Area, Carnegie Endowment for International Peace, Washington, D.C., March 3, 2008 Andrew Whitley, Director of the Representative Office UNRWA, New York, The Humanitarian Crisis in Gaza and Beyond, The Foundation for Middle East Peace and the UN Association of the National Capital Area, Carnegie Endowment for International Peace, Washington, D.C., March 3, 2008 Andrew Whitley, Director of the Representative Office UNRWA Meeting at UNRWA Office in New York, March 24, 2008; and see as an example “Hoda’s Story; A high velocity bullet flew through a classroom window in a primary school in the Gaza Strip. It hit 12-year old Hoda Darwish in the head.”, UNRWA and YLE, Finnish Broadcasting Company, DVD, 2006

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develops in this environment, at the height of the Fatah and Hamas violence in the summer of 2007, UNRWA held Summer Games in the Gaza Strip in order to provide some sense of normality for the children in this highly charged political context.278 These games were held over a ten week period and began within one week following the end of the Palestinian factional violence in Gaza in June 2007.279 Around 200,000 children and youth participated. These games were highly appreciated by the children and their parents who were happy to have alternative positive pursuits offered to their children in the context of the endemic violence, and at the time this “was the largest youth recreational initiative ever to have taken place in Gaza”.280 However violence within schools has continuously increased and UNICEF stated in 2008 that violence in classrooms was all-encompassing.281 The teachers living under the pressure of the siege and the conflict have become increasingly distressed and quickly lose patience with their students which lead them to use corporal punishment. In the UNRWA schools, to address this problem, UNRWA initiated an independent review of its education programme with the help of UNICEF and the World Bank.282 The objective of the review was to improve the protection of the children in the UNRWA schools. In the Gaza UNRWA schools, UNRWA has been implementing a zero tolerance policy on corporal punishment.283 Furthermore a teacher training programme in alternative methods of discipline has been conducted together with the Gaza Community Mental Health Programme and Save the Children-Sweden.284 In the West Bank a Task Force on Violence in Schools was established with the purpose to examine the issue as well as recommend ways to address the violence. Another challenge with regards to education in the OPT is that the PA government has not provided for the early childhood care and development (ECCD)

278 Andrew Whitley, Director of the Representative Office UNRWA Meeting in New York, March 24, 2008 and UNRWA, Summer Games Information Sheet, 2008 279 UNRWA, Summer Games Information Sheet, 2008 280 UNRWA, Summer Games Information Sheet, 2008 281 UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3. 282 United Nations, UNRWA, Office of the Commissioner-General, Gaza, Letter July 2008, and Addendum to DEO’s letter to former SPPA, Examples of initiatives to address violence in UNRWA schools. 283 United Nations, UNRWA, Office of the Commissioner-General, Gaza, Letter July 2008, and Addendum to DEO’s letter to former SPPA, Examples of initiatives to address violence in UNRWA schools. 284 United Nations, UNRWA, Office of the Commissioner-General, Gaza, Letter July 2008, and Addendum to DEO’s letter to former SPPA, Examples of initiatives to address violence in UNRWA schools.

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sector.285 As a consequence many preschools have been opened through private means and by charitable organizations or with funding from foreign sources. This has been a reason as to why no accreditation programs or formal standards for preschool personnel have been established formally, which in turn have led to that many of the personnel have not had the qualifications or training needed.286 Low salaries for preschool teachers and overcrowding in their schools are problems. A survey conducted among preschool teachers showed that to get training in early childhood care would be a priority for them.287 But the government has not prioritized the preschool educational sector in general, and therefore issues such as higher salaries, more school space and improved training are not likely to be achieved. There are several other concerns, and one is that families prefer to send their sons to preschool and therefore there are more boys compared to girls in the preschools.288 Other issues include that parents do not get involved or show interest in the activities of their children, and that many families are poor and “live below or near the poverty line” and therefore cannot afford to pay the school fees and send their children to preschool.289 UNRWA’s Director of Operations in Gaza, John Ging, said at a press conference two weeks after Operation Cast Lead that “[t]here are more extremists in Gaza today than there were a couple of weeks ago, as a direct result of this conflict, in terms of how people now see their future or lack thereof”.290 To restore confidence among the population was at the time a key issue. 285 Early Childhood Resource Center, ECRC, the ECRC’s plan for 2006-2008, Together and forever let’s translate the world declaration on the survival, protection and development of children to become applicable, Every child deserves a better future, para. II.1 286 Early Childhood Resource Center, ECRC, the ECRC’s plan for 2006-2008, Together and forever let’s translate the world declaration on the survival, protection and development of children to become applicable, Every child deserves a better future, para. II.1 287 Early Childhood Resource Center, ECRC, the ECRC’s plan for 2006-2008, Together and forever let’s translate the world declaration on the survival, protection and development of children to become applicable, Every child deserves a better future, para. II.1 288 Early Childhood Resource Center, ECRC, the ECRC’s plan for 2006-2008, Together and forever let’s translate the world declaration on the survival, protection and development of children to become applicable, Every child deserves a better future, para. 11.1 289 Early Childhood Resource Center, ECRC, the ECRC’s plan for 2006-2008, Together and forever let’s translate the world declaration on the survival, protection and development of children to become applicable, Every child deserves a better future, para. 11.1 290 John Ging, Director of Operations in Gaza, UNRWA, Press Conference, UN Department of Public Information, News and Media Division, New York, 30 January, 2009

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Ging underlined that education was the number one priority for UNRWA, and that “we are in a big fight on the ground against the conditions working against us in terms of bringing up a generation that will be minded towards civilized behavior and away from violence”.291 In the UNRWA schools the teachers are to work with a focus on respect and discipline, and UNRWA was in 2009 in the process of introducing a new human rights curriculum. All of UNRWA’s 225 schools in the Gaza Strip had become fully operational five days after the ceasefires.292 Repairs had been made to many schools, and repairs were still needed as many schools had been damaged during the conflict and also since 49 of the schools had been used as shelters for the civilian population. In January 2009 UNRWA had more than 200 counsellors working in its schools to evaluate the psychological impact of the conflict on the children and refer them to medical treatment if needed.293 Health care was also a priority for UNRWA, and in this respect medical supplies and staff had been allowed into Gaza, and patients had been evacuated for treatment abroad if warranted. However, by June 2009, UNRWA had employed 400 counsellors to help the children in its schools to deal with their trauma and fears as a consequence of the Operation.294 4.4.3.

Providing Education in Colombia The children are the most affected because from their childhood through to their teenage years during their formative years what has the children observed? The children see violence, if they see violence, then what do they learn? What do they have in their minds? All they have is the violence. Is that what they need? 295 – Teacher in La Esmeralda, in Valle del Guamuéz, Colombia

The militarization of schools in Colombia is reflected by the fact that occupation by the different armed groups is a common practice in the conflict areas which

291 John Ging, Director of Operations in Gaza, UNRWA, Press Conference, UN Department of Public Information, News and Media Division, New York, 30 January, 2009 292 John Ging, Director of Operations in Gaza, UNRWA, Press Conference, UN Department of Public Information, News and Media Division, New York, 30 January, 2009 293 John Ging, Director of Operations in Gaza, UNRWA, Press Conference, UN Department of Public Information, News and Media Division, New York, 30 January, 2009 294 UNRWA, www.unrwa.org, accessed June 14, 2009 295 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 10, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author.

Providing Education in Armed Conflict

seriously puts the students and the teachers at risk.296 The children’s education is disrupted and they miss out on school. In addition, these different armed groups also use school facilities and other civilian institutions as their living quarters because they provide a convenient infrastructure and facility to them. They make these places into bases from where they attack the communities as well as harass the students and teachers. Those harassments include sexual abuse of the children, and their teachers are many times threatened and some have been assassinated by members of these groups.297 Also, government agents and the illegal armed groups alike use schools for intelligence purposes.298 This way they are spying on the children’s family life to gather intelligence on their family members. Since there is no protection of children, some school teachers in rural areas have begun to establish semi-boarding schools so that the children can stay over at the schools instead of having to walk back and forth from home to school every day to reduce the risk of the children becoming abducted and recruited.299 The situation for the children of the indigenous population and the AfroDescendants is especially serious since their areas are the most affected by the presence of the different armed groups. The occupations of schools as well as making schools into permanent living grounds by the different armed groups make children and youth vulnerable to the militarization of the social environment they grow up in.300 Schools are to provide a safe place to learn for children, but such militarization severely impedes their learning. The Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia (the Coalición) states that the schools are places where children “form, develop and reinforce their social learning, such as learning” about the values and traditions about their cultures, and in countries such as Colombia these cultures 296 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 7, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 297 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 7, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 298 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 10 299 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 14, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 300 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 2, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author.

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encompasses the indigenous peoples’, the Afro-Descendant’s and the Mestiza’s cultures.301 To severely disrupt this social learning undermines these different groups’ abilities to develop their own cultures and could weaken the foundation of these cultures themselves.302 This is to be seen in the context that the AfroDescendents is the group that is the most affected by internal displacement as 30 per cent of the IDPs in Colombia are estimated to come from this group. Schools are to be places where the children ideally are to learn non-violent ways of relating to each other and what a peaceful society means.303 Another serious issue in Colombia is that when the armed groups abandon a school that they have occupied or lived in, they leave behind explosives and other materiel that seriously endanger the children and their teachers.304 Another issue is the anti-personal landmines that the guerrilla groups have many times left behind on or by the roads in the countryside. Landmines and other explosives are not the only risks that children and youth encounter on their way to and from school. Often different military units stop the children and youth and force them to become informers, and they force the children to inform on their parents, neighbours or other people whom the Fuerza Publica views as “sospechosos”, that is suspicious.305 The presence of the irregular armed groups in many communities has led to that some children stop going to school to join a guerrilla group or the old and/or new paramilitary groups (such as AUC, “Rastrojos” and “Aguilas Negras”), and as one teacher told the mission of the Coalicíon, it was very difficult to explain to children why they should not join an armed group.306 301 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 2, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 302 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 2, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 303 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 2, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 304 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 10, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 305 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 10, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. 306 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de veri-

Providing Education in Armed Conflict

As a result of this prolonged conflict in Colombia social violence has increased. There is a high level of violence in families, as well as in schools. Violence in schools is not only limited to armed groups and schools in conflict zones, but violence as a means to solve conflicts has spread to schools in cities such as Bogota as well.307 The security policies over the years have had some serious consequences for the communities resulting in creating more authoritarianism at the local level.308 This authoritarianism is reflected in more displays of discipline and social control, as the social dynamics of the local communities have changed.309 Many communities have experienced a lack of access to assistance and medicine due to blockages by different armed groups. As the Coalición reports, they have had to submit to the reality that their territory now is controlled by a particular armed group, and have had their right to freedom of movement being severely restricted.310 4.4.3.1.

Threats to Teachers and the Work of the Teacher Organization Federación Colombiana de Educadores

The teachers in Colombia work under very difficult circumstances and the rights of the teachers are continuously being violated. Since the end of the 1990s until the end of 2006 about 310 teachers had been murdered.311 As the Federación Colombiana de Educadores (FECODE) reports, 42 teachers were murdered in 2000, 32 were murdered in 2001, 83 in 2002, 41 in 2003, 39 in 2004, 40 in 2005 and in 2006 33 teachers were murdered in the context of total impunity.312 FECODE states that there are

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ficación en escuelas y colegios de deferentes regiones colombianas, p. 10, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. Monsignor Henao, Colombia, United States Institute of Peace (USIP), Washington D.C., March 31, 2008 Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 7, Putchipu, Enero-Junio, 2007, Boletín 15-16: Text translated by Author. Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 7, Putchipu, Enero-junio, 2007, Boletín 15-16: Text translated by Author. Coalición contra la vinculación de niños, niñas y jóvenes al conflicto armado en Colombia, Impacto del conflicto armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 7, Putchipu, Enero-junio, 2007, Boletín 15-16: Text translated by Author. FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author. FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author.

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many reasons to this deteriorating situation for the teachers as the dynamics of the armed conflict has changed over the years, where one is how all armed groups have become radicalized and their “total” intolerance of the civilian population including the teachers.313 This radicalization and intolerance have led to many teachers having become internally displaced as it is the only alternative to being able to safeguard their personal integrity as well as the personal integrity of their families.314 More than 50 teachers have had to leave the country and become political refugees since 1996, and during that time (to the end of 2006) FECODE registered 25 cases of forced disappearances and kidnappings of teachers. The teacher organization FECODE has identified the types of terror tactics that teachers are exposed to:315 – – – – – –

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telephone and written threats; harassment at home by armed personnel; public declarations or written messages singling them out as military targets; demands for their resignation from their job with an ultimatum to leave the work place; extortion by illegal armed groups against teachers on the highest salary scales (those with 25 years’ service) and those who already have a pension; armed groups using schools as meeting places for spreading their political views or threatening the community, regardless of opposition from teachers and the school authorities; raiding/breaking into homes and education institutions, and murdering teachers in front of their families and students; death threats written in graffiti on schools and teachers’ homes; forced disappearances and kidnappings; armed groups ordering teachers to leave the union or not participate in union activities.

In the departments of Cesar, Cauca, Antioquia, Nariño and others, armed groups have given orders to the “el magisterio” that they were not to participate in union activities. Of note is that MAPP/OAS reported in 2009 that regardless of government efforts with regards to the DDR of paramilitaries and the restoration of security to local communities, illegal armed groups still exist in the south of 313

FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author. 314 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author. 315 Translation and list taken from O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 12, and FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 3-5

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Cauca, Chocó, Caquetá, by the coastal area of Nariño and the Cauca Valley, plus in “a large number of municipalities in the departments of Meta, Casanare, and Vichada, and localities in Magdalena Medio, the northwestern part of Antioquia and la Alta Guajira”.316 In all of these areas communities still suffer from the activities of illegal armed groups. The governmental efforts consist of having had the police combat the illegal armed groups, the “illegal structures”, that these armed group’s commanders and members have been arrested by the police, and that the police have confiscated chemical precursors, processed drugs and weapons.317 MAPP/OAS suggests that the measure for success needs to change from counting the numbers of groups that have demobilized and ceased to exist to looking at in which territories the influence of these groups has decreased.318 As MAPP/OAS takes note of, as a result of actions taken by the police there was a reduction in the number of “criminal gangs” with 52 per cent from 2006 to September 2008, but that the influence of these criminal gangs decreased with a mere 15 per cent during this period of time in the same municipalities.319 Many teachers because of the difficult and stressful work conditions together with the lack of security at home need to seek psychiatric help and sometimes be hospitalized because of anxiety, depression and fatigue.320 The schools and colleges in many areas of the country and especially in the rural areas are used as camps and for political propaganda (proselitismo politico) by the armed groups.321 There are estimates that about 1,350,000 children have lost all access to an education because of forced displacement within the whole

316 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, MAPP/OAS, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr.1, 9 February, 2009, p. 9 317 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, MAPP/OAS, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr.1, 9 February, 2009, p. 9 318 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, MAPP/OAS, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr.1, 9 February, 2009, p. 9 319 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, MAPP/OAS, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr.1, 9 February, 2009, p. 9 320 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 4-5: Text translated by Author 321 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author.

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territory of Colombia.322 In Colombia one study reported that 40 per cent of the children surveyed who had been child soldiers were illiterate.323 The threats, displacements, disappearances and the killings of about 50 teachers have taken place because of reasons such as their opposition to forced recruitment of children and youth by the different armed actors and to their leadership in unions, education and in the community, which according to one of the armed groups have constituted that the teachers have collaborated with the enemy.324 The perpetrators of all of these cases were still not arrested or punished by January 2007. Another factor is that when the teachers become forcefully displaced, many of them lose their salaries and social security benefits as well.325 Because of the situation FECODE has initiated a campaign under the banner “the school as a neutral territory in the armed conflict”.326 The Inter-American Commission on Human Rights ordered the Colombian government to create a programme of protection for teachers, which has included for teachers also being members of a trade union to be provided with “a checklist of security measures” for them to observe.327 These security measures for the union member teachers include: “always check to see if your car is being followed; never sit in a public place with your back to the front door; always be aware of your escape routes from any situation; if you carry a weapon, make sure it is ready to fire.”328 4.4.4.

Education in the Democratic Republic of Congo

The level and the quality of education has decreased in DRC since about 1998 because of the armed conflict situation, and it has led to a situation where many children, who have been able to attend primary school, at the end of the primary 322 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author 323 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 27 324 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 5: Text translated by Author 325 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 6: Text translated by Author 326 FECODE, La lucha integral por los derechos humanos y Fecode, January 11, 2007, p. 6: Text translated by Author 327 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 23 328 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 23

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school years formally leave primary school without actually being able to read or write.329 As was earlier noted the 2006 Constitution of DRC in its Article 43 stipulates that primary school is compulsory and should be free of charge to the students in the public governmental schools, but as L’Observatoire Congolais de Droits Humains (OCDH) explains the reality is that primary school is not free of charge.330 Because of the poverty many parents cannot afford to pay for their children to attend school, and this is a primary reason to why many children do not go to school or abandon school. Another issue is that even for those children whose parents are poor and still find a way to pay for their children to attend primary school, many are being harassed or become sexual slaves and raped by their teachers in order for them to pass their exams and their classes.331 There are very few pre-school programmes established in DRC and only 3 per cent of all children attend such programmes.332 These types of programmes are only provided in the cities and only the very rich can afford to bring their children to these pre-schools. At the primary school level, only 17 per cent of the Congolese children begin first grade at the age of 6, which is the legal age to begin school. Some of the reasons for children not attending school include because their parents cannot afford it, or that the schools are very far away from the children’s homes, which makes it impossible for them to attend school. Only 20 children of every 100 children who begin their first year of school are actually of the legal age of 6, instead children who are 9 years of age or older represent about 32 per cent of all the children, and that number goes up in the rural areas where this age group account for 41 per cent. For children aged 6 to 11 years, only about 52 per cent go to school, and about 31 per cent of the children between 6 and 14 years never go to school and they are usually the girls, children from the rural 329 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 60, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf: Text translated by Author 330 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/DRC_ OCDH_NGP_Report_FR.pdf; Article 43, al. 5 de la Constitution : »L’enseignement primaire est obligatoire et gratuit dans les établissements publics.» Text translated by Author 331 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf: Text translated by Author. 332 This whole section is based on the report by L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comité des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 60 , http://www.crin.org/docs/DRC_OCDH_NGP_Report_FR.pdf: Text translated by Author

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areas and children whose parents are poor. Very few of the children that do begin first class remain in school for the whole period of primary school, as of every 100 children who begin first class only 25 actually remain until the fift h grade. The reasons range from lack of motivation of the child, insufficient or lack of school material, as well as the economic and social situation. With regards to the youth aged 15 and over, about 24 per cent do not go to school, and of these only about 39 per cent have any primary schooling at all. About 36 per cent of the children have attended secondary education, and of these 25 per cent are girls and 47 per cent are boys. The illiteracy rates have increased with the war with the result that of 100 children 32 children between 15 and over cannot read or write. There is no school transportation available in DRC, and one of the main reasons why children do not attend school is lack of transportation which is needed since so many live too far away from school.333 More and more schools have had their buildings or grounds taken over and turned into commercial places and even to homes. Also, there are many strikes by social protest movements that interrupt the school year and this leads to schoolwork getting delayed. Many schools in the rural areas are in complete disrepair, with no school benches and where the kids need to sit on the ground. It is not only the children that are without school material but also the teachers. The deterioration of the public schools has led to the private schools becoming more important, which in turn results in many children that cannot afford to go to school. Another issue is that many schools do not have any latrine facilities, and those that do have latrines have no up-keep of them, and also there are no school facilities for food either. As l’Observatoire Congolais des Droits Humains reports because of the population growth in DRC there is an even greater need for education, and this is in a context where the infrastructures are not sufficient or workable and where the government does not do much to rebuild or build new infrastructure.334 Another factor they report on is that because of the lack of respect for the schools, their buildings and grounds, there is no space anywhere in the communities for cultural or other recreational activities for the children. And in urban areas like in Kinshasa there are not any parks or green places for children to play in. The DRC budget for education increased from 1.9 per cent in 2002 to 6.8 per cent in 2006, while with regard to health care for children the budget was 1 per

333

L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comite des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf: Text translated by Author. 334 L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comite des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf: Text translated by Author.

Providing Education in Armed Conflict

cent in 2002, 4.9 per cent in 2003, 7.2 per cent in 2004, and back down to 4.5 per cent in 2006.335 The minimum age limit for work in DRC has been raised to 16 years in Article 6 of the 2006 Constitution, and the Constitution even stipulates that children aged 16 to 18 years are only allowed to work for four hours maximum, and that they are not permitted to work at night, or engage in heavy and dangerous work.336 4.4.5.

The Provision of Education in Afghanistan After two decades of fighting in Afghanistan, the enrolment of girls in primary school had dropped to 8 per cent. The back-to-school campaign in Afghanistan specifically focused on encouraging girls to return to the classroom.337 – The UN Secretary-General, 2002 Nearly 50 Afghan teenagers are in hospital after a mystery gas attack on a girls’ school in the northern town of Charikar, the second mass poisoning of female students in a month, a doctor said on Monday. Attacks on girls’ schools have increased in the past year, particularly in the east and south of the country. Last year a group of school girls in Kandahar had acid thrown in their faces by men who objected to them attending school.338 – A school girl in a hospital bed in Charikar city, 11 May 2009

During the Taliban rule in the 1990s they banned education for girls and women were no longer allowed to go to school or university, and this also had detrimental consequences for the education of boys.339 The UN reported in February 1997 that women constituted about 70 per cent of the teachers in Kabul, and that the Taliban closed down 63 schools in Kabul which meant that 103,000 girls and

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L’Observatoire Congolais de Droits Humains (OCDH), Les droits de l’enfant toujours mis a rude épreuve en RDC, Rapport Alternatif présente au Comite des Droits de l’Enfant des Nations Unies, Septembre, 2008, p. 61, http://www.crin.org/docs/ DRC_OCDH_NGP_Report_FR.pdf, p. 23: Text translated by Author. L’Observatoire Congolais de Droits Humains (OCDH), Rapport Alternatif sur la mise en œuvre de la convention relative aux droits de l’enfant en République Démocratique du Congo, Septembre 2008, 1) Introduction Générale, 3.2. : Text translated by Author. Report of the UN Secretary-General on children and armed confl ict, S/2002/1299, 26 November 2002, para. 22 Reuters, AOL News, May 11, 2009 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the Senate Committee on Foreign Relations, the United States Congress, March 2, 1998, www.warchild....

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148,000 boys could no longer go to school, and 8,000 teachers were out of work.340 The Taliban had stated a year before in February 2006 that the University of Kabul would reopen but only for male students. Women students had constituted more than 50 per cent of the student body at the University of Kabul before the close down. In March 1998 all the girl schools continued being closed in the southern and central regions of Afghanistan as they were in Herat and Kabul. Since the women could not any longer work as teachers this naturally lead to a shortage of teachers, and in addition there were also fewer male teachers available. There were several consequences in Afghanistan from the Taliban not letting women work as teachers and one was on landmine awareness as a lot of women had been working as trainers on this issue.341 This was in a context where Afghanistan was one of the three countries which had the most land mines in the world, and at the time, in 1998, Kabul was the city that had the most land mines in the world, and it was the residential areas in Kabul which had the most land mines.342 The land mines had been there since the Soviet occupation and in 1998 it was estimated that Afghanistan had about 8 million anti-personal land mines and 2 million antitank mines. The Soviets had dropped from helicopters so called butterfly mines, PFM-1 mines, which children thought looked like toys and played with. Especially to children herding animals these land mines were of special danger. Save the Children reported in 1996 that of all the land mine victims in Kabul about 50 per cent were children and that in other areas of Afghanistan, children constituted about 30 per cent of the victims of land mines.343 Moreover, 13.5 per cent of families had been in land mine incidents according to a UN Demining Database survey, and about 20–25 people were injured or died from land mines daily, which amounted to about 8,000 deaths yearly and civilians were the most affected being about 85 per cent of the victims.344 340 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the Senate Committee on Foreign Relations, the United States Congress, March 2, 1998, www.warchild.... 341 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the Senate Committee on For eign Relations, the United States Congress, March 2, 1998, www.warchild.... 342 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the Senate Committee on Foreign Relations, the United States Congress, March 2, 1998, www.warchild.... 343 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the Senate Committee on Foreign Relations, the United States Congress, March 2, 1998, www.warchild.... 344 Testimony of Zieba Shorish-Shamley, Director of WAPHA, The Humanitarian Crisis in Afghanistan: Meeting the Needs of Afghan Women and Children, Before the

Providing Education in Armed Conflict

In Afghanistan in some provinces such as Kabul, Kunduz, Ghazni, Baghlan, Saripul, Takhar, Zabul, Nuristan and Logar, members of the community have defended schools that insurgents attempted to set on fire.345 In 2006 when ten insurgents were about to set the Kamail Girls’ school in the village of Hesarek on fire, several villagers came to defend the school and the insurgents left the place. In Afghanistan since the Taliban years there is a tradition of home-schooling and to go “underground” and educate children in secrecy and in such a way provide education to the children.346 UNICEF has provided assistance in establishing “smaller school units” in homes and in or next to communities together with the local population.347 It has been shown that home-schooling has had a great success rate compared to the schooling that the government provided, as the children in home-schools adhering to the primary curriculum of the government were able to complete classes twice as often and at a lower cost than other school children (about 90 per cent of these home-schooled children were successful at the exams given at the end of the year).348 Further, UNICEF is to visit a school no longer than 72 hours after an attack against a school has taken place, and is then no longer than 5 days to assist with “tents, teaching and learning materials, and floor mats” to get the school running again.349 4.4.5.1.

The Right to Education and the Challenges to Its Fulfilment in Afghanistan

The Afghan Constitution which entered into force 1382 (2004) provides for the right to education for all, and in the state educational system education is provided for free up until the bachelor’s degree level, and is free and compulsory up to the

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Senate Committee on Foreign Relations, the United States Congress, March 2, 1998, www.warchild.... O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 29 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 30 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 30 From Rebecca Winthrop, 2006, “Forced Migration Review Education Supplement, ‘Emergencies, Education and Innovation’”, in O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 30 O’Malley, B., Education under Attack, A global study on targeted political and military violence against education staff, students, teachers, union and government officials, and institutions, UNESCO, April 27, 2007, p. 30

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intermediate level.350 According to the Constitution the government has the responsibility to provide education all over the country, “design and implement effective programs” in a balanced manner, “develop education for women, improve the education of the Kuchis” and end illiteracy.351 The Afghan Law on Education states in its Article 3 that “[t]he nationals of the Islamic Republic of Afghanistan have an equal right to education without any kinds of discrimination”.352 The Afghanistan Compact, the Afghan National Development Strategy (ANDS), the MDGs report (1384–1400), and the Afghan National Strategic Plan on Education (1385–1389) all have incorporated the obligations of the Afghan government with regards to education.353 The Afghan Ministry of Education’s annual report of the year 1387 (2008/2009) showed that about 6.2 million children go to school in Afghanistan and 35.5 per cent are girls.354 This means according to the Afghan Minister of Education that “[a]bout 40% of the country’s children who are qualified to enroll in school, are deprived of their access to education”.355 The AIHRC reports that because of insecurity, threats, war, suicide attacks, acid-throwing attacks, and other security related factors fewer girls than boys go to school, and fewer women compared to men are able to engage in educational, scientific and cultural activities.356 Another reason is discrimination which affects especially rural children, girls, children belonging to minorities and children with disabilities.357 Additional reasons are family economic problems, the long distance between home and school, lack of professional teachers and women teachers, inappropriate school environment, not enough adequate facilities (this affects mostly Kuchis) and a lack of quality education which have had as a consequence that

350 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 2 and 14 351 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 2 352 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 2-3 353 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 14 354 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 17 355 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 3-4 356 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 17 357 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 4

Providing Education in Armed Conflict

children drop out of school or do not regularly attend school.358 While much progress has been made to provide education for all children, it has been shown that at the primary school level boys enrol twice as much as girls, and that at the secondary level boys enrol three to four more times than girls do.359 These numbers merely reflect the situation in the urban areas, as in the rural areas at both the primary and secondary level, girls enrol even less than they do in the urban areas, and boys enrol in school ten times more often than girls do in the rural areas after the primary school level. The main reason why girls do not attend school is the lack of girl schools and women teachers.360 This is particularly the case in the rural areas where there is no high schools for girls in 80 per cent of the districts because there are no female teachers available. In the whole country there are 216 high schools for girls which are mainly located in the provincial areas. Of all teachers in Afghanistan women make up 28 per cent, and of these “80 per cent work in the urban areas”.361 The 40 per cent of all school-aged children that do not go to school belong to mainly two categories, either have they been dropping out of school because of different reasons or they have had no access to any schooling at all.362 While both girls and boys drop out from school, there is a tendency that the girls drop out at an earlier stage or before they finish their primary education, while the boys drop out throughout primary, secondary and high school level education.363 According to an assessment of the potential of achieving the MDG 5, primary education for all, it was shown that two boys graduate for every girl that graduates.364 Importantly there is a much higher demand for education than there are resources available. Factors such as gender, which province, urban or rural areas all determine what choices are available as there are many differences between these. For instance of all school enrolled children in Afghanistan, 82 per cent attend the primary school level, and about 50 per cent of all schools lack “adequate, safe and appropriate space for learning” and this is the main reason as to why girls at the

358 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 4-5 359 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 4 360 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 16 361 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 17 362 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 18 363 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 20 364 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 20

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secondary school level are prevented by their parents to go to school.365 While there has been a significant increase in school enrolment, the quality of the education provided is “almost missing” and very poor.366 As a result AIHRC reports that equal education is not being provided by the government, in outlying rural areas “only nominal education” is given, there is poor quality of education and lack of access to facilities and needed equipment. The AIHRC found in a study that the main reasons that girls in grades one to six did not attend school regularly were that the teachers were not good (75), lack of teachers (119), journey to school is unsafe (149), cannot afford to buy uniforms and books (192), marriage (363), have to work (399), that the school is too far away (730), and other reasons (1,709).367 The reasons why the boys in grades one to six did not attend school on a regular basis were that teachers were not good (55), the journey to school is unsafe (56), lack of teachers (61), cannot afford to buy uniforms and books (161), marriage (213), that the school is too far away (463), have to work (679) and other reasons (1,074). Another study showed that the reasons why children drop out of school are school being too far away (girls 10.1 per cent, boys 10.4 per cent), security problems (girls 6.9 per cent, boys 7.8 per cent), having no guardians (girls 8.7 per cent, boys 18.7 per cent), family not allowing (girls 25.7 per cent, boys 4 per cent), no women teachers (girls 14.7 per cent, 0 per cent), have to work (girls 7.8 per cent, boys 36 per cent), ancillary costs of education (girls 4.6 per cent, boys 9.6 per cent), language problem (girls 0.9 per cent, boys 0.7 per cent), lack of professional teachers (girls 0.9 per cent, 1.6 per cent), inappropriate treatment by teachers (girls 0.9 per cent, boys 0.4 per cent), sickness (girls 1.4 per cent, boys 2 per cent), marriage (girls 10.1 per cent, boys 0 per cent), inattention to lesson (girls 2.8 per cent, boys 1.8 per cent), inappropriate school environment (girls 4.1 per cent, boys 0.7 per cent), inappropriate treatment by students (girls 0.5 per cent, boys 0.7 per cent) and expulsion from school (girls 0 per cent, boys 1.3 per cent).368 The main reasons for children dropping out of school are poverty which leads to them being forced to work, and long distance to school, local traditional practices and early marriages.369 One of the major reasons for children, especially girls, dropping out of school is long distance between home and school. 365 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 5 366 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 5 367 Afghan Independent Human Rights Commission, Report on the situation of economic and social rights in Afghanistan-IV, Qaws 1388 (November/ December 2009), p. 84 368 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 21 369 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 26

Providing Education in Armed Conflict

Furthermore, lack of access to higher schooling prevents many children from continuing school as no such further education is being offered. This problem affects girls more than boys, as there are fewer girl schools. Lack of having a parent or a guardian looking after the children because of parental death(s) or disappearance as a result of long-term armed conflict is a significant reason why girls leave school (8.7 per cent), but it is an even more significant reason why boys drop out of school (18.7 per cent).370 AIHRC reports that for the girls lack of permission from their parents to attend school affected about 25.7 per cent of the girls, and was a reason for them to drop out of school. This needs to be seen in contrast to the boys where only about 4 per cent did not have the permission from their parents to attend school and as a result had to drop out of school. According to the AIHRC this situation is a result of traditional practices which should not be accepted.371 Other cultural limitations leading to girls dropping out of school are that there are not enough women teachers in the country, of all 142,508 teachers in the country only about 37.69 per cent are women, a problem which also the Afghan Ministry of Education has noted. Poverty and economic problems are fundamental reasons why many children have to drop out of school and are forced to work and provide for their families, which especially affects boys (36 per cent). However, one boy who was interviewed said that it was not because of lack of money that his father told him to drop out of school, instead his father wanted his son to become an apprentice and work, as he did not see any value in educating the boy.372 Again as the AIHRC has pointed out it is the responsibility of the Afghan government to ensure that all children go to school, as primary school is compulsory and free according to the Constitution. Early marriage is a problem that affects mostly girls, and findings have shown that girls are especially vulnerable to be married away and they drop out of school around the age of 14 years to do so.373 Parents were interviewed about the reasons why their daughters were to marry, and their reasons were that it would be difficult to find a husband for their daughters if they did not marry at that age. Another reason is poverty in the family which leads to girls having to marry and drop out of school. As one of AIHRC’s field researchers noted “[i]n one school, about 450 girls were on the list of permanent absentees. The main reason for their absence, according to the school authorities, was marriage and familial

370 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 23 371 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 25 372 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 27 373 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 29

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objection to education due to the increased age of these girls.”374 As inappropriate treatment by teachers was one reason why children drop out of school, it should be noted that violence and humiliation in school is viewed as very common by many students and therefore the actual number of students dropping out because of this reason is probably “much higher”.375 Also, it is important to note that the new Law on Education, which the president was endorsing by an executive directive and as a result entered into force, bans any form of physical and mental punishment of students and those teachers that continue with this practice risk prosecution.376 For the category of children that have never gone to school, a study has shown that girls make up the majority of this group and that parental interest is three times lower for girls’ education compared to boys’ education.377 This study showed that the reasons as to why the children had never gone to school were: school being far away (girls 13.8 per cent, boys 7.8 per cent), girls’ education not common (girls 12.1 per cent, boys 0 per cent), non-existence of girl schools (girls 11.6 per cent, boys 0 per cent), lack of women schoolteachers (girls 4.7 per cent, boys 0 per cent), family not allowing (girls 17.7 per cent, boys 8.2 per cent), ancillary costs of education (girls 10.4 per cent, boys 26.7 per cent), having no guardians (girls 8.2 per cent, boys 17.8 per cent), marriage (girls 7.3 per cent, boys 0.4 per cent), insecurity and harassment en route (girls 6.9 per cent, boys 6.8 per cent), lack of school buildings (girls 0.9 per cent, boys 3 per cent), labour (girls 1.3 per cent, boys 17.1 per cent), no teaching in mother tongue (girls 2.2 per cent, boys 2.5 per cent), lack of professional teachers (girls 0.4 per cent, boys 0.4 per cent), lack of school (girls 0 per cent, boys 6.4 per cent) and disabilities (girls 2.6 per cent, boys 6 per cent).378 For girls that have never gone to school, long distance between home and school is one of the major reasons why they have not gone to school. Another study by AIHRC has shown that parents do not allow their girls to walk to school if it takes two hours.379 With regards to the girls who stated that their parents did not allow them to go to school as the reason to why they had never gone to school, 12 per cent of their parents saw it as “unnecessary” to let their daughters go to 374 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 29 375 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 2 and 29-30 376 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 30 377 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 32 378 Table 4., Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 32-33 379 In Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 34

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school.380 Parents also make comments with regards to their girls’ lack of education that there are no girls’ schools in their areas or that they are too far away, which they do not say about their boys’ educational opportunities. With regards to the lack of women teachers this is a problem that has been acknowledged by the Afghan human development report, the National Strategic Plan of Education, the majority of the directors of departments of education and the Planning Director of the Ministry of Education.381 As AIHRC notes if girls are not educated because there are no women teachers, it is not possible to educate women teachers if not enough girls are being educated in the first place. Forty-two per cent of the population in Afghanistan “lives below the poverty line” according to the Afghan National Assessment of Risk and Vulnerability of 2007.382 Poverty is a significant reason to why especially boys have never gone to school (26.7 per cent) as their parents cannot afford to pay for their transportation, books and other items needed for school, for the girls it was 10.4 per cent. Early marriage also mostly affects girls (in the study 7.3 per cent of the girls and 0.4 per cent of the boys) and is a reason as to why they have never gone to school.383 Insecurity and harassment on the way to school as well as inside the school has become a major factor since 2008, and this is affecting girls and boys almost alike as 6.8 per cent of the girls and 6.9 per cent of the boys stated this as a reason for never having gone to school. Sexual harassment of both girls and boys is a major factor in the harassment that children encounter on their way to school, and the AIHRC registered 32 cases of such sexual harassment for a period of five months alone in 2008.384 In some cases children have died as a result of the sexual harassment. While in the study about 17 per cent of the boys responded that they were forced to work as the main reason to why they had never gone to school, 32.8 per cent of their parents said that this was the reason to why their sons had never been to school. In this context it is important to point out that the Afghan Ministry of Education has not included at all the many children that are forced to work in the National Strategic Plan of Education 1385–1389 (2006–2010), and has not developed any programs to improve this situation.385 With regards to the children that stated that lack of education in their mother tongue was the 380 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 34 381 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 35 382 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 36 383 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 37 384 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 38 385 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 40

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reason to why they had never gone to school this is in direct contravention of the Afghan Constitution that provides that “[i]n areas where the majority of the people speak in any one of Uzbeki, Turkmani, Pachaie, Nuristani, Balichi or Pamiri language, any of the aforementioned language, in addition to Pashto and Dari, shall be the third official language, the usage of which shall be regulated by law”, as well as that the state is obligated to provide teaching in the mother tongue in areas “where such languages is spoken”.386 Lack of having parents or guardians were the reasons to why 17.8 per cent of the boys had never gone to school, and 8.2 per cent of the girls as they needed to work. With regards to children with disabilities, the International Organization of Persons with Disabilities have estimated that in the year 1384 (2005) there were about 196,000 school-qualified children in Afghanistan with disabilities.387 Of these 22.4 per cent attended school of which 15 per cent were girls; however “over 75 per cent drop out of school at the primary education level”, and less than 1 per cent of children with disabilities attend higher education above secondary level.388 Reasons as to why this category of children drops out of school include: lack of appropriate educational materials, lack of trained teachers who can communicate with disabled children, and discriminatory treatment.389 The Ministry of Education is supporting and managing one school in the whole country for visual impaired children, where 150 students are attending, and different NGOs provide informal education to more than 3,900 other disabled children. The Kuchi children are a special category of children that have very limited educational opportunities, and only about 6.6 per cent of all the Kuchi boys and 1.8 per cent of all the Kuchi girls have access to school.390 In this context the Afghan National Strategic Plan of Education has planned for that at least 35 per cent of all the Kuchi children by the year 1389 (2010) “should have access to special, formal education”.391 There are only around 70 schools available for Kuchi children in the whole country, and for instance lack of professional teachers are major impediments to ensure their education. These limitations have been noted by the Afghan Education Sector Strategy that states that “[s]chools for children with special needs are woefully lacking while those for kuchi children 386 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 41 387 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 45 388 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 45 389 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 45 390 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 46 391 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 46

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are inadequate”.392 However, the Afghan Constitution has made provisions for developing the education for the Kuchi children. Another special group of school children in Afghanistan that do not have much access to education is Hindu and Sikh children.393 The Ministry of Education built a school in 1386 (2007) for these children in the province of Ghazni, where 100 children can attend. Some Hindu and the Sikh representatives have developed textbooks, and the curriculum is corresponding to Hindu and Sikh religious traditions and values. The Ministry of Education has provided some school books in the Dari language. In Jalalabad Save the Children Sweden and the Department of Education have signed a protocol and opened a school there for Hindu and Sikh children, and as the director of this school explains “[t] his school doesn’t have a specific building. Some students study in Sikhs’ place of worship and others study in a private house. Their religious lessons are in their mother tongue and other subjects are in Pashto.”394 On the way to and from this school the children experience harassment and therefore their parents walk them to and from school. Furthermore, since there is no higher education above primary school, these children cannot continue going to school after the primary level. The Afghan Strategic National Plan of Education (1385–1389, 2006–2010) does not include any provisions for the Hindu or Sikh children’s education, and the government has not had any formal policies regarding their education.395 As AIHRC underlines the Afghan Constitution does according to its Article 43 acknowledges the Hindu and Sikh children as citizens of the country and as a result the government has the duty to provide them with a free education. For the children that do have access to school many children still only attend school irregularly, and research has found that the reasons for irregular attendance is school being far away from home, labour, security problems and harassment, the child has no guardians, cultural constraints, inability to pay for ancillary costs of education, poor quality of education, sickness and inattention to lessons.396 For many children and especially boys who do go to school they still need to work as well which makes it impossible for them to go school regularly, and when in school they are tired and later there is not time for homework. Since these children cannot regularly attend school and do their schoolwork, the majority of these children do not continue school to higher grades which in turns 392 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 46 393 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 46 394 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 47 395 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 48 396 Table 6, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 50

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make them have to continue to do labour work and have lesser opportunities to improve their lives.397 The security situation for the children going to school is very problematic as many children risk being beaten, kidnapped, killed and many children receive night letters, and as a result many children do not attend school on a regular basis.398 Also many schools have had to close because of security reasons. In the year Mizan 1387 (2008), 640 schools were shut down and as a result 234,272 children could no longer go to school which affected 7 per cent of all schools in the country according to the Department of Planning of the Ministry of Education.399 It was shown that the opposition armed groups destroyed 220 schools between year 1386 (2007) to Mizan 1387 (2008), and during that time they killed 254 teachers and students and injured 329 teachers and students.400 As AIHRC states it is the responsibility of the government to provide security to its citizens which is confirmed in the Afghan Constitution, and the Director of Planning of the Ministry of Education also affirms that insecurity is a huge problem for school children and that especially girls receive the night letters.401 Parents have told AIHRC’s field researchers that “[w]e are anxious about our school-going children, because they are threatened to death and kidnapping by certain individuals en route to school. Even some students have fallen prey to bandits and abductors, who take children to unknown places and demand ransom. If we inform the security authorities, they don’t act immediately to arrest the bandits and abductors.”402 Poor quality of the education given is also a reason as to why many children do not attend school regularly, and that the education in Afghanistan is poor has been acknowledged in the Afghan 2007 human development report, and the Afghan Ministry of Education has in its National Strategic Plan of Education stated that “[t]he quality of education is very low in Afghanistan and the causes for poor quality of education are various in Afghanistan, including inadequacy of professional teachers who know the subjects and new teaching methodologies, 397 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 52 398 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 53 399 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 53 400 Afghan Constitution Article 75 paragraph 3, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 53-54 401 Afghan Constitution Article 75 paragraph 3, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 54 402 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 54

Providing Education in Armed Conflict

lack of a safe, learning-friendly environment, lack of learning materials, teachercentered classrooms, and parrot-like education in Afghanistan. There are verbal reports that refer to corporal punishment as a classroom management method in Afghanistan.”403 There should be a unified school curriculum for all schools in Afghanistan in accordance with the new Law on Education and the Afghan Constitution and the National Strategic Plan of Education by the year 1389 (2010) which states that “[t]he State shall devise and implement a unified educational curriculum based on the tenets of the sacred religion of Islam, national culture as well as academic principles”; however there is no consistent use of the unified curriculum in the schools today in the context of few human resources and limited budgets.404 The Ministry of Education has only been able to develop a unified curriculum for the primary school level and is working on a unified curriculum for the secondary level which still uses a 20 year old curriculum. Before there was no unified school curriculum in Afghanistan and instead the different population groups had their own respective curriculum which was developed from the perspective of “their political competitions and leanings”.405 The physical school environment is another issue that needs to be developed as in 2005 “only 25 percent of school structures were usable”.406 Research by the AIHRC has shown that school children go to school in buildings (girls 37.9 per cent, boys 36.9 per cent), tents (girls 6.2 per cent, boys 7 per cent), outdoors (3.9 per cent, boys 1.7 per cent), and under trees (girls 2 per cent, boys 3.7 per cent).407 This particular research also showed that 53 per cent of the school authorities stated “that their schools had buildings”, which meant that of all schools included in this study merely 53 per cent had actual buildings. Other places where children attend school include in malls, mosques, religious places, people’s houses and in rented houses.408 Furthermore, some constructions are termed buildings even when they neither have four-walls nor classrooms, but where for administrative, logistical and other reasons there are a couple of rooms available.

403 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 56 404 Article 45 of the Afghan Constitution, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 57-58 405 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 58 406 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 59 407 Table 7, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 59 408 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 60

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Also in several places it is the students in higher grades that study in a classroom (when available) and the other students in the lower grades have to conduct their studies in places such as tents, under the sky, or under trees.409 Many schools that have buildings are also overcrowded which leads to that students need to study outside of the school in different places, such as in tents. While estimates show that only 50 per cent of the schools in the country have buildings, the National Strategic Plan of Education covering the years 1385–1389 makes provisions for that within the end of this time period for 90 per cent of the schools buildings were to be constructed, and there should be for both girls and boys decent educational facilities.410 Not having access to appropriate buildings further means that there is a lack of laboratories for science studies; one study showed that over 84 per cent of all schools did not have any laboratories and 75.3 per cent of the students surveyed did not receive any education in science.411 Also very few schools have libraries, and one study conducted by the AIHRC found that libraries existed in 22.4 per cent of all the schools researched but that 40.9 per cent of the students at these schools could not access the library even once a month.412 Furthermore AIHRC reported that only 55 per cent of the students sit on chairs in school, while 40 per cent sit on carpets and 5 per cent did not sit on either chairs or carpets. In addition lack of clean potable water in school is a big problem and the Ministry of Education estimates that merely 20 per cent of the schools have healthy potable water.413 As one of AIHRC’s field researchers has noted “[s]tudents use tap water in some schools in Kabul city and they use closed water well in the district capitals covered by this research. In rural schools, students use spring and stream water. This observation is indicative of vivid discrepancies at capital, urban, and rural levels, while the Ministry of Education has, in the National Strategic Plan of Education (1385–1389), committed itself to providing healthy drinking water to all schools in accordance with the minimum health standards for schools.” 414 In a study it was showed that only about 74 per cent of the students had access to restrooms, 20 per cent had to resort to land around the school and 6 per cent had no access at all to restrooms or land, and in addition

409 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 61 410 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 61 411 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 63-64 412 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 74 413 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 66 414 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 66

Providing Education in Armed Conflict

their teachers do not give permission to the students to go to the bathroom.415 In the context of insecurity it is notable that “many restrooms are located outdoors far from the school building in terrible sanitary conditions”.416 With regards to long distance between home and school, research by the AIHRC has revealed that most of the students have at least a one hour long walk to school, and for some children including first graders they have a three hours walk to school.417 There are several factors AIHRC explains that make walking to school difficult like bad weather, impassable roads, insecurity, land mines and other unexploded materials. As one of AIHRC’s field researchers noted: “Students have to walk for one to three hours to come to the district school from their villages. Some students come to school by bicycle, but these facilities are not available for girls. There are also no transportation facilities from these villages to the district school, because there are no appropriate roads and where roads exist, there are no fare cars.” 418 There is also a lack of textbooks, as a study revealed that 50 per cent of the students had one textbook for every subject, but that 44 per cent did not always have one such textbook, while 6 per cent did not have any textbooks at all.419 Sometimes parts of the textbooks are missing and therefore as a substitute the teachers have to develop their own notes. Other issues particular to Afghanistan is that the opposition has burnt textbooks, for instance in 1387 the Ministry of Education reported on two such incidents.420 The Ministry of Education stated that “some 100,000 textbooks belonging to the Kandahar Department of Education were burned by the opposition in the Moqor area of Ghazni province on Kabul-Kandahar road”.421 Another such case took place in the Nuristan province (the area of Walwabo in the Wama district) where the opposition burnt about 8,344 textbooks also religious books. Furthermore there is much need for more teachers, as the lack of teachers is one of the most significant problems which is illustrated by that 41 per cent of all school authorities that have been surveyed have stated that there is a lack of 415 416 417 418 419 420 421

Table 10, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 68-69 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 69 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, p. 70-71, accessed April 21, 2010 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 51 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 62 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 63 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 63

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teachers available, and 80 per cent of 25 provincial education directors said that there was not enough teachers.422 A further problem is that the existing teachers lack adequate qualifications and the Ministry of Education states that 77 per cent of all the teachers “are unprofessional”, and this situation is reflected in a study carried out by the AIHRC that showed that of the teachers interviewed for the study 17 per cent were educated below the baccalaureate level, 38.3 per cent had a baccalaureate’s degree, 26.3 per cent were above the baccalaureate level, 14 per cent had a bachelor’s degree, 2.5 per cent had a degree above the bachelor level, 1.7 per cent had a master’s degree, 0.3 per cent had a degree above the master degree level, and 0 per cent had a doctorate.423 AIHRC reports that “there is still a culture of violence in Afghan schools” in terms of how the teachers treat the students, and it is very common for teachers working from the first to the fift h grades to bring rods to the classroom to punish and control the students.424 The forms of inappropriate behavior used by the teachers are beatings, threats and the use of bad language, and that teachers use corporal punishment in schools is acknowledged in the National Strategic Plan for Education.425 Some teachers are not always present in school or are late and the reasons for the absence of the teachers include inadequate salary, long distance to school and not being committed to punctuality.426 In 2009 there were more than 600 attacks on schools recorded in Afghanistan, which was the highest numbers recorded at the time.427 The Minister of Education and the different child protection agencies have agreed that when it comes to the protection of schools community ownership and community involvement are the most important factors that need to be developed. In this context it is important to remember that the AIHRC has pointed out that issues such as parent’s relationship with school authorities and the notion that parents should play an active part in how schools are being managed and in finding solutions to any difficulties a child has as a pupil take time to develop.428

422 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 80 423 Table 14, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 82 424 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 76 425 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, Table 12 and p. 77 426 Table 13, Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 78 427 Office of the SRSG-CAAC, Afghanistan: Children to be at the center of any peace framework for Afghanistan, 24 February, 2010 428 Afghan Independent Human Rights Commission, Fair access of children to education in Afghanistan, accessed April 21, 2010, p. 84

Providing Education in Armed Conflict

4.4.6.

Education in Pakistan

Regarding the issue of whether education intersects with violence in Pakistan, there has been much debate over the influence of madrassa schools on extremism and violence as well as whether there has been an increase in the enrolment in these schools in recent years especially among poor people. Many madrassas provide only religious education and Islamic studies, but few alone of these schools have preached jihad and provided military training, where the surrounding environment has made it possible for these schools to mix militancy, sectarian politics and obscurantism with some students who move along and across the borders to join the jihad.429 The madrassas fall under the Ministry of Religious Affairs and not the Ministry of Education.430 The government has made efforts to modernize the madrassa system, and in 2005 the government and five independent madrassa boards came to an agreement that 85 per cent of the madrassas under these boards’ control should be registered and that a modern curriculum be implemented in these registered madrassas.431 At the end of 2007 about 10,000 madrassa schools out of the approximately existing 15,000 such schools were registered in this way. At the same time there has been a trend for youth in Pakistan to identify with the violent causes of the extremist Islamic groups, enticed “by the promise of an identity, and revenge for the attacks that the West has carried out against the Muslim and Middle Eastern countries.”432 The secretary-general of the Human Rights Commission of Pakistan, Iqbal Haider, has stipulated that “[m]ore and more young people are turning to these extremists, and the trend is seen among all categories of young people, ranging from the well-heeled to the poor”.433 There is a huge gap in wealth between the people in Pakistan; however this gap does not explain this trend of the young people wanting to join the extremist Islamic groups since these groups have increasingly attracted young people “across class, ethnicity and educational borders”.434 429 Bhutta, Z. A., Children of War: the Real Casualties of the Afghan Conflict, BMJ 2002;324;349-352, p. 351 430 Series 1, Annual Human Rights Reports submitted to Congress by the US Department of State, Book 31-B, country reports on human rights practices for 2007, pages 1773-2802, p. 2309 431 Series 1, Annual Human Rights Reports submitted to Congress by the US Department of State, Book 31-B, country reports on human rights practices for 2007, pages 1773-2802, p. 2309: This was the number at the time. 432 Irin In-Depth, Youth in Crisis, Coming of age in the 21st century, Pakistan: Caught in the extremist web, February 2007, p. 66 433 Irin In-Depth, Youth in Crisis, Coming of age in the 21st century, Pakistan: Caught in the extremist web, February 2007, p. 66 434 Irin In-Depth, Youth in Crisis, Coming of age in the 21st century, Pakistan: Caught in the extremist web, February 2007, p. 66

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4.4.6.1.

The Taliban in Pakistan and Their Influence on Children

In the areas where the Taliban and other extremists operate, as well as in the madrassa schools the Taliban run, their influence is problematic, and there are different kinds of efforts to counter their influence including at the grassroots level. In the Swat valley, before, during and after the Pakistani Taliban administered the Swat Valley region between February and May 2009, the extremists targeted the youth to use them as suicide bombers, and to counter these activities women’s peace groups in the area got involved and through mothers had by November 2010 come into contact with 75 boys who were under the influence of the extremist groups.435 This work is on-going, and Ms. Qadeem from the Paiman Trust in Islamabad means that in order to address the root causes of radicalization it is necessary that women are given some kind of training in empowerment so that they can play a role in preventing these kinds of situations like they are doing in Pakistan.436 While not all youth are susceptible to the messages of these extremist groups, for those who are it is also critical to find ways to help the parents, families and communities to withstand the influences of these groups. Pakistan signed a deal with the Taliban in February 2009 for the Taliban to administer the Swat Valley region, but the agreement ended in May 2009 and the Pakistani army came back to the Swat Valley.437 Outside of the tribal areas the Taliban influence has been growing. In the Swat Valley the Taliban arrived with extremist leaders, and about 400,000 people fled the area. Furthermore, most of the governmental offices closed down because about 50 governmental officials were beheaded by the Taliban. When the Taliban were administrating the Swat Valley they issued radio broadcasts from which they created fear among people by saying for instance that “we will make our sons suicide bombers”.438 In the Swat the Taliban banned movie theatres, barbershops, children’s games and women and girls needed to cover themselves.439 While the Taliban banned children from playing games, the children being children played anyways, however in some cases then the Taliban

435 Qadeem, M., Paiman Trust, Islamabad, Pakistan, at Women and War, the Washington D.C. Celebration of the Tenth Anniversary of UNSCR 1325, United Institute of Peace (USIP) and partners, Washington D.C., November 4, 2010 436 Qadeem, M., Paiman Trust, Islamabad, Pakistan, at Women and War, the Washington D.C. Celebration of the Tenth Anniversary of UNSCR 1325, United Institute of Peace (USIP) and partners Washington D.C., November 4, 2010 437 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 438 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 439 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009

Providing Education in Armed Conflict

started to shoot at the children so that they would stop playing their games. Also, the Taliban wore masks, which frightened the children. When the Taliban arrived in the Swat a new target became the schools, and the Taliban destroyed about 200 governmental schools in Swat, and decided that no girls were allowed to go to school anymore and this affected about 250,000 school girls.440 It is important to keep in mind that it had taken a long time to build up those governmental schools. School girls that were interviewed said that they were very angry that their school had been destroyed and that they could not go to school. As one of the school girls explained “school is like a ray of light and I want that light”.441 In one town the locals named the central square “bloody square” because of the public beheadings that the Talibans carried out there. The Taliban conducted public beheadings in different towns, and as a father of two school girls said that it was very dangerous because the Taliban killed those who openly defied them.442 He continued explaining that people became psychologically affected by this situation and became deeply depressed, saying “you see a sadness, no one can say anything, our thoughts are chained”. Near the Afghan border on the Pakistani side the Taliban run their own madrassa schools, and they target poor families and give the pupils free food and lodging and sometimes also monthly stipends to their families.443 In these madrassas the boys are taught the justification for suicide attacks and how to kill a spy. A teenage boy interviewed said that schools like these were opening in his area. Parents interviewed said that they would send their children to other schools but could not afford to, and therefore the Taliban madrassas became an alternative to them as they provide both free food and lodging. The way the Taliban get the boys to school is first through calling them to the mosques where they preach to these boys, and then secondly through the madrassas where they are given a month of military training where they learn how to use machine guns and mortars, etc.444 Hassan Ali joined the Taliban when he was 13 years and said that “[t]hey teach us how to carry out suicide attacks”.445 He

440 Shareen Obaid-Chinoy, Film: Pakistan’s Taleban Generation, Film Screening and presentation at SAIS Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 441 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 442 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 443 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 444 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 445 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009

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was asked whether there were enough young men? He responded “[n]ow there are thousands of us”. In areas where the American missiles have been striking, the Taliban in their madrassas manipulate the children and use these missile strikes as a justification for their jihad. There were about 30 US missile strikes in the year 2008– May 2009, and civilians have often been killed including children in these air raids.446 Another example is the US air missile strike on 30 October 2006, when more than 80 people were killed and many of those were children, and the militants make use of these strikes to recruit children. On the other hand, in 2008, 800 people in Pakistan were killed in suicide attacks. A Taliban teacher at a madrassa in Karachi stated in answer to a question of who would win the Taliban or the government that “we will win because it is in our blood” and continuing referring to children that “we have an unending pool of ‘sacrificial lambs’ for the cause because the suicide bombing offered an opportunity to achieve martyrdom”.447 He further explained that the Western countries only focus on this life while the Taliban focus on the afterlife, so that “if you see death as a blessing who can hinder him?”448 It does not matter if that person is a child. In Pakistan, Taliban recruitment fi lms are easily available and they glorify child suicide bombers, and in one such recruitment fi lm a child sings that “you won’t find my whole body, you’ll find me in small pieces”.449 A Taliban recruiter for suicide bombers who was personally involved in child recruitment said that he was himself recruited by the Taliban as a child and went to a madrassa.450 He was asked how the Taliban recruit and invite children to join them. He said on camera being interviewed that “the kids want to join us because they like our weapons” and that “[w]hen the children get recruited they do not at first use the weapons, they only carry them”.451 He continued “if you need to fight, then God provides you with the means”, and that “[c]hildren are tools to achieve God’s will”, “so it is fine” to use children to fight.452 This recruiter 446 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 447 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 448 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 449 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 450 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 451 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009 452 Sharmeen Obaid-Chinoy, Film: Pakistan’s Taliban Generation, Film Screening and presentation at SAIS, Washington D.C., April 23, 2009, and at PBS.org, May 26, 2009

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showed a recruitment fi lm of children of around 11–12 years of age, but said that the group of children that he was responsible for were much younger, only about 5, 6, 7 years old. 4.4.6.2.

The LEAP’s Project in Pakistan

However, as the Learning and Educational Achievements in Punjab Schools Project, the so-called LEAP’s project, has found only about 1 per cent of the children in Pakistan attend madrassa schools, and that a significant transformation in the education sector is taking place with an increase of non-religious and non-ideological private schools which also children from poor families attend.453 While the poor families bear the brunt of the education crisis, this does not mean that the parents from the poor families do not wish that their children receive a good education; what is fundamentally problematic is the lack of quality education provided in the governmental schools. Very few children finish tenth grade, but this needs to be seen within the context of that the ending age of compulsory education in Pakistan is only nine years.454 4.4.6.2.1. Madrassa Schools in Pakistan About 1 per cent of all children enrolled in school in Pakistan attend madrassas, and most of these children live along the region bordering Afghanistan in the Pashtun belt where the Afghan conflict situation has a direct effect.455 The 14 districts that have “extreme” madrassa enrolment are located in Balochistan or the North-West Frontier Province, and that means that a little more than 4 per cent of the children in the districts bordering Afghanistan (not Pishin) are enrolled in madrassa schools.456 The LEAPS project found that apart from the Pashtun belt and Karachi, across the country the enrolment of children in madrassas reflect that “a very small number of children in every district are enrolled in madrassas”.457 There is no difference between Pashtun and non-Pashtun households in terms of enrolment of their children in madrassas; it is rather geopolitical factors and the closeness to Afghanistan that influence the choice of whether 453 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005 454 UCW, Understanding Children’s Work, ucw-project.org, accessed June 14, 2009, and April 17, 2011 455 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 1, 13-15 456 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 15 457 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 15

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a child attends a madrassa school in this region.458 The study found that 23.5 per cent of those households who had at least one child enrolled in a madrassa had all their children enrolled in madrassas, less than 50 per cent of the households with one child in a madrassa also enrol their other children in public schools, and 28 per cent of these households enrol their children in all the different schools, madrassas, public and private schools.459 Nor does religiosity or ideology seem to play any role for enrolling a child in a madrassa school, while it seems that ideology rather plays a role in the choice of a private school.460 In those instances where a madrassa school would give the poor children free food, clothing and stipends, and be the reason for poor families to have their children attend the madrassa school, it was found that this only takes place in those settlements where public and private schools have not been established.461 Furthermore, it was found that less than 1 per cent of all children enrolled in school attend madrassa schools in settlements where there are different school alternatives, and that more children, especially the poor, attend madrassas if there are no other schooling options available.462 However when there are no other options available, the most important distinction is not the increase in madrassa enrolment, but that school enrolment in general significantly decreases.463 While there is an increase in the madrassa enrolment, there is at the same time a very big drop in the total school enrolment. So in those settlements where neither a public or private school have been established, “families are more likely to exit from the educational system altogether than enrol their child in a madrassa”.464 The increase of low-cost private schools in the rural areas reflects that the choice of a private school is the most popular alternative to government schools for an average child and not the madrassa school.465 Private schools are mainly established in those villages where public schools already can be found; however given the increase of the private schools in the recent years this situation might 458 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 20 459 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 17 460 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 17 461 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 20 462 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 22 463 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 22 464 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 18 465 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 22

Providing Education in Armed Conflict

change.466 It does not cost very much to attend these rural private schools, a little less than USD 1 a month in rural Punjab (the annual tuition fee is PKR 650 in rural Punjab) per child which is about 1.7 per cent of the average household expenditure.467 4.4.6.2.2. Education in Punjab, Pakistan In the past decade there have been significant changes in the education system in Pakistan, as between 2001 and 2005 there was a 10 per cent increase in school enrolments which included both boys and girls.468 The establishment of private schools, secular, co-educational and for-profit increased between 2000–2005 from 32,000 to 47,000 schools, where one in every three enrolled children was enrolled in a private school at primary level by the end of 2005. A survey by the Pakistan Integrated Household Survey (PIHS 2001) revealed that in villages with private schools 18 per cent of the poorest third enrolled their children in these schools as they are affordable.469 These private schools are established in both urban and rural areas, and where in a typical village there are between seven to eight different school choices available, it has become what the LEAPS team term “an active educational marketplace”.470 The government schools consist of separate schools for boys and girls, while the private schools are mainly co-educational with both boys and girls going to the same school. The LEAPS project has conducted surveys in 112 villages in the Punjab province in Pakistan starting in 2003.471

466 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 19 467 Andrabi, Tahir, Das, Jishnu, Khwaja, Asim, Ijaz, Zajonc, Tristan, Religious School Enrollment in Pakistan, A Look at the Data, Revised December 2005, p. 19 468 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. i, www.leapsproject.org/ 469 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. iv, www.leapsproject.org/ 470 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. i, vii, www.leapsproject.org/ 471 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. v, www.leapsproject.org/

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The LEAPs project has shown that “private schools are significantly outperforming government schools and that very little of this difference is attributable to differences in household wealth, parental education, the child’s age or the child’s gender”.472 Parental satisfaction with private schools is considerably higher than with governmental schools, with about 45 per cent of the parents participating in the study being satisfied with the skills of the teachers in the governmental school, while 60 per cent were satisfied with the teaching skills in private schools.473 The private schools were shown to outdo public schools in all subjects also within the same villages.474 The parents in the study highly valued teacher skills, which was reflected by a little less than 80 per cent of the parents saying that schools with dedicated teachers but with poor infrastructure and no free school supplies were still “good” or “very good”, while more than 80 per cent viewed schools that had very good infrastructure or free school supplies but that did not have dedicated teachers as “bad” or “very bad”.475 The LEAPs project found that the richest one-third and middle richest households surveyed spend more than or equally much on their children’s education than the government does, and all households including the poorest third paid for “more than half of children’s educational expenditures”.476 The amount that the poorest third of the households paid for their children’s education added up to 75 per cent of the government’s educational spending of this group, and it was shown that poor parents spend a significant amount of money on educating

472 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 68, www.leapsproject.org/ 473 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 68, www.leapsproject.org/ 474 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 109, www.leapsproject.org/ 475 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 117, www.leapsproject.org/ 476 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. v, www.leapsproject.org/

Providing Education in Armed Conflict

their children, including having them attend private schools and pay for other educational related needs and not only the school fees.477 The LEAPs project showed that government teachers are more educated, better trained, more experienced and better paid than teachers in private schools, while most of the teachers in private schools are female, younger, unmarried and from the local area.478 It costs twice as much to educate a child in government schools than in private schools, because of higher teacher salaries.479 The teachers in the private schools work harder to educate their students which is one reason as to why the children in the private schools in all subjects have higher test-scores compared to the government schools.480 Furthermore, the absenteeism rate for teachers in government schools is much higher than it is for teachers in private schools (3.2 days/month in governmental schools and 1.8 days/month in private schools), with the more experienced governmental teachers with at least three years of work experience being absent 3.4 days/month, compared to teachers in private schools with the same amount of experience who are absent 1.9 days/ month.481 Both government and private school teachers with less than one year of experience are absent about 1.9 days/month, and this rate stays the same for private teachers with longer experience as well. One central issue is that while more children enrol in school, the quality of the education is very poor and the children do not learn much in the governmental schools; the average child’s test scores in Class 3 revealed that they could not read simple sentences in Urdu and that they did not know how to add or

477 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. v, www.leapsproject.org/ 478 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 62-66, www. leapsproject.org/ 479 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. ii, www.leapsproject.org/ 480 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. ii, www.leapsproject.org/ 481 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 69, www.leapsproject.org/

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subtract.482 The situation is so dire that “[c]hildren who never attend school or leave after Class III will be functionally illiterate and innumerate”.483 The LEAPS project found that learning outcomes was all a matter of if a child attended a private or a governmental school, that in the same villages the private schools were outperforming public schools, and that it would take from 1.5 to 2.5 years of additional schooling for the governmental school pupils to get to the level that the pupils in Class 3 in the private schools were at.484 The study further showed that the spending on educating a child in the public sector was double the amount that was spent in the private sector.485 Furthermore, the primary age children who did not attend school and worked for a wage worked only for about one hour and a half per day, so the conclusion was that they do not go school because they have to work to provide for their families, and instead in order to get these children to enrol in school would require improving the quality of the education provided.486 Challenges to the educational system apart from the situation of the governmental schools include lack of access to the private schools, as the private schools are mostly established in more wealthy villages and richer settlements within villages which restricts access to the poor households, and parental perceptions of their children’s intellectual abilities which in some cases do have consequences for the choice of the school the children go to, or whether the child can go to school at all.487 In terms of school choice, some children are not treated in an equitable manner by their parents because if parents view their child as being less 482 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. viii, 108, www. leapsproject.org/ 483 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. vii, www.leapsproject.org/ 484 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. viii, 109, www. leapsproject.org/ 485 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. x, 112, www.leapsproject.org/ 486 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 108, www.leapsproject.org/ 487 Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): In-

Providing Education in Armed Conflict

intelligent then that child is 20 per cent less likely to be enrolled in school, and when enrolled in school that child is more likely to be enrolled in government schools and even as the child goes to school the household does not invest as much time and money on these children.488 This is not so much an issue for poor households, as it has been shown that “the gap in spending by child intelligence actually increases with income”.489 Given the limitations with the private schools, despite their successful performance, the government schools still provide equal geographical access to all children, and therefore the priority for the government should be to improve the conditions in the government schools and invest in them, so that like the authors behind the LEAPs project stipulate “[i]f Pakistan is to take seriously the idea of ‘Education for All’ there is really no other option than to improve the performance of government schools”.490 4.4.7.

Political Attitudes and Content of Curriculum

Fair et al. underlines the importance of being aware of the content of what is being taught in school as their study in Pakistan that assessed attitudes with respect to four militant organizations showed that “the impact of education on political attitudes depends critically on the content of that education”.491 They mean that this needs to be seen in the context that many governments accept that schools’ curricula, such as in Pakistan and the Palestinian Authority, include and teach intolerant attitudes which have consequences for how students view militancy. Furthermore, they argue that those organizations and agencies involved in developing aid and development projects regarding education need to pay attention to the content of what will be taught in the schools they are providing funding and support to, since they might actually be unintentionally supporting curricula

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sights to inform the education policy debate, February 20, 2007, p. ii, 114, www. leapsproject.org/ Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 114, www.leapsproject.org/ Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. 114, www.leapsproject.org/ Andrabi, T., Das, J., Khwaja, A. I., Vishwanath, T., Zajonc, T. and the LEAPS Team, Pakistan, Learning and Educational Achievements in Punjab Schools (LEAPS): Insights to inform the education policy debate, February 20, 2007, p. ii, 115, www.leapsproject.org/ Fair C. C., Malhotra, N., Shapiro J. N., The Roots of Militancy: Explaining Support for Political Violence in Pakistan, Version December 28, 2009, p. 27

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teaching intolerance.492 If such aid and development projects lead to more people being given an education and they are being taught from a curriculum that advocates intolerance then more people will be taught intolerance which then will have the detriment effect of being able to increase tolerance and decrease support for violence.493 For instance in Pakistan the curriculum in the government schools praises the fighting since the late-1980s by militants in Kashmir, and the longer a child has gone to government schools in Pakistan the longer that child has been exposed to teachings about “how the Kashmiri tanzeem are defending beleaguered oppressed Muslims”.494 4.5.

Education in Divided Societies in the Post-Conflict Phase

Two studies from two very different societies, Northern Ireland and Burundi, but with similar experiences from either ethnic or religious divisions, reveal the continuous challenges to the education systems in these societies. A study on the state of the rights and welfare of the children in Northern Ireland was conducted by the Commissioner of Children and Young People among children in Northern Ireland of which the absolute majority come from the Catholic and Protestant communities and attend Protestant or Catholic schools, and this study revealed that the children had very similar experiences as well as concerns.495 Most of these children live in separate communities and rarely socialize, and go to religiously separated schools where only about 5 per cent of the school pupil population go to schools termed “integrated” and where most of their teachers get their teacher training at colleges that are separated by religion and mainly work and stay on in their respective schools not teaching across the religious line.496 Also, a considerable number of the members of the schools’ Boards of Governors come from the local clergy or are representing the local 492 Fair C. C., Malhotra, N., Shapiro J. N., The Roots of Militancy: Explaining Support for Political Violence in Pakistan, Version December 28, 2009, p. 28 493 Fair C. C., Malhotra, N., Shapiro J. N., The Roots of Militancy: Explaining Support for Political Violence in Pakistan, Version December 28, 2009, p. 28 494 Fair C. C., Malhotra, N., Shapiro J. N., The Roots of Militancy Explaining Support for Political Violence in Pakistan, Version December 2009, p. 13 495 The Catholic community makes up about one third and the Protestant community about two thirds, however there is an expanding ethnic minority community in Northern Ireland and concerns have been raised by children from this population that only Christianity is being taught in school and no other religions, and that children who are not Christian cannot get free days off from school to celebrate their religious holidays and that exams are being set without concern to their holidays, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 313, 316, 322, 326-327 496 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and

Providing Education in Armed Conflict

clergy in accordance with national law, which has the consequence that in the governance of the schools the churches play a very important “statutory role”.497 Importantly the schools have traditionally visibly represented the different religious groups and communities, and as a result have been viewed as a legitimate target of violence in the context of the long-standing conflict that came to an end in 1994 with the ceasefires entered into by the most important paramilitary groups and subsequently by the Belfast Agreement in 1998.498 However, the targeting of the schools through mainly vandalism and arson have not entirely disappeared, and the students who attend especially those schools which are located in the areas bordering the Protestant and Catholic communities have many times when in school as a means of protection not been able to enter school playgrounds and places for recreation because of fears of being attacked.499 On their way to and from school, children have also repeatedly spoken of their fear of being attacked as many have experienced harassment, and youth from the different communities often throw stones at school buses carrying children from the other religious group.500 One especially cruel incident took place in 2001 at the all-girls Catholic Holy Cross Primary School, where Protestant protestors including adults for more than three months “shouted sectarian insults, blew whistles, and threw missiles at the children (including bricks, bottles, urine-fi lled balloons, excrement …)” and also threw a blast bomb at the school girls and the parents of the girls who already required police protection on their way to school with the police “dressed in full riot gear”.501 The strategy that the police had used was brought before the court by a mother of one of the school children where the European Convention

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Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 312 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 312 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 312 and 322 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 322 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 322 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and

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of Human Rights (ECHR) was applied; however the High Court decided that no violations of the Articles 2 and 3 of the ECHR had taken place, arguing that even as the child could have believed that there was a threat to her life, there was no evidence that it would have been possible for the authorities to know or should have known that the life of the child had been at “a real and immediate risk” on these occasions.502 Since the UK had in 2000 made the ECHR part of national legislation, it was as a result possible for the mother to turn in this case regarding the ECHR to the national court system.503 Furthermore, the High Court decided that the strategy adopted by the police was acceptable according to Article 3 of the ECHR, as well as that “the indignities, threats and naked intimidation” during those three months could not be viewed as inhuman or degrading treatment of the school children which was also according to Article 3 of the ECHR. Finally, considering whether there had been a violation of the children’s right to education as stated in Article 2 of the First Protocol, the judge found that this was not the case “because of the sterling efforts of the parents and dedication of the teachers led by their admirable principal”.504 While the Northern Ireland Court of Appeal subsequently agreed with the High Court’s decision, the decision by the Court of Appeal was still brought before the House of Lords. As Lundy remarks at issue is whether in a future comparable case the police would apply the same strategy, not being able to actually stop the harassment and protect the children from abuse. In terms of upholding the legal protection of the rights of children, the possibility to bring violations of the ECHR before domestic courts in those European countries where this is an alternative is a necessary step towards the protection of children’s rights; however this also requires that the domestic courts are willing to seriously consider what is required to protect the rights of children. To uphold the rights of children particularly in the area of education is yet to be achieved, and not being able to actually protect children from, such as in this case, “religiously motivated violence on their journey to school stands as a further indictWorthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 322 502 The High Court judgment “In the Matter of an Application by ‘E’ for Judicial Review (2004), in Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 323 503 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 323 504 “Application by ‘E’, 2004, para. 51” in, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 323

Providing Education in Armed Conflict

ment of the ECHR”.505 However as Lundy importantly remarks with regards to the CRC which has not been incorporated into national law in all countries and therefore cannot be challenged before national courts (“or international courts”) and thus “reducing its utility”, in this case most notably Article 19 of the CRC, periodic reporting while useful “as an enforcement mechanism … is a poor substitute for litigation when individuals are subject to harm. The Committee on the Rights of the Child cannot resolve these issues for children at the most crucial moments, that is, when such incidents occur. A minimum indicator of respect for children’s rights in any civilized society is that children of all religious denominations, or of none, should be safe from harassment, abuse, and threat, not just at, but also on the way to, school.”506 With the new Optional Protocol to the CRC on a Communications Procedure with its individual complaints mechanism, the CRC Committee is able to strengthen the protection of the rights of children, but the Committee is still not a court.507 Furthermore to know from which community in Northern Ireland a child comes is not difficult because of the children’s school uniforms that clearly show which school they attend. Several children in the study told of how “their school uniform made them vulnerable to verbal abuse and attack”, saying that because of this “we can’t wear our uniform up town”.508 One school child explained:509 I was crossing the bridge and they were all shouting at me and I was in my uniform as well. It didn’t really register until afterwards to me. You are scared to go into some places like [name of a place] because you would be beat up because of your religion. 505 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 323 506 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 323 507 General Assembly, A/RES/66/138, 19 December 2011, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, OHCHR, Children empowered to complain about rights violations under the new UN protocol, www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11732&La..., 2011-12-22, See Chapter 10 508 Kilkelly et al., 2005a, p. 194 in Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 322 509 Kilkelly et al., 2005a, p. 194 in Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 322

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Parents are scared to let you out because there have been people killed not so long ago in that place.

The study by the Northern Ireland Commissioner for Children and Young People specifically examined “family life; health, welfare, and material deprivation; education; play and leisure; criminal justice and policing; and implementation of the CRC”.510 One of the study’s main findings was that the children from these two communities had many comparable experiences, and that they brought up the same concerns which included wanting to have much more of a say in decisionmaking at home in the family, and for instance “disputes with parents, lack of privacy in the home, and issues surrounding parents’ divorce and separation”.511 Further all the children expressed concerns regarding “lack of access to safe and appropriate facilities” in their neighbourhoods when they wanted to play. It was solely with regards to “crime and policing” that the children displayed a diverging view based on religion which needs to be seen in the context of that Protestants made up about 90 per cent of the police force in Northern Ireland until the signing of the Belfast Agreement in 1998 which included reforms of the police.512 Also of significance was the finding that of the children aged 12 to 16 years of both communities 74 per cent wanted peace as they expressed their desire that Catholics and Protestants were “to get along” and “to stop fighting one another”.513 These findings show not only the value and importance of letting children and young people be heard, but also the necessity to listen to the children so assumptions about how one believes children and youth think accurately corresponds to reality. These findings also show that it would be wise to fi nd ways to reinforce the similarities of the children’s experiences and not assume and falsely focus on and magnify differences where there are none, as it was found that “they

510 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 314 511 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 326-327 512 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 326 513 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 327

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have much more in common with each other than their highly segregated daily lives suggest”.514 4.5.1.

Ethnicity, Education and Peace-Building in Burundi Education has been a part of the problem in the Hutu-Tutsi discord instead of providing a framework for collaboration, reconciliation, and peace.515

One aspect of Burundi’s past Hutu-Tutsi divisions was the wide-ranging existing discriminatory attitudes, policies and practices in the education system where few Hutus had access to education, and where these attitudes, policies and practices both “alienated and disenfranchised” the Hutus that were able to go to school.516 In this context Ndura explains that the “most damaging to the shaping of the Burundian ethnic landscape is that these discriminatory policies and practices have not been consistently exposed or questioned”.517 Ndura further argues that even as the Burundi government introduced free and universal primary education in 2005, there is a great need to change the educational system that was in place to also deal with ethnic diversity and peaceful interethnic coexistence.518 She means that if issues such as ethnic diversity and peaceful interethnic coexistence are not included in educational programming

514 Lundy, L., Children, education, and rights in a society divided by religion: the perspectives of children and young people, Chapter 16, in Albertson Fineman, M., and Worthington, K., Eds., What is Right for Children? The competing paradigms of religion and human rights, 2009, p. 327 515 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 28 516 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 28 517 Ndura, 2006a in Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Conflict: Comparative Perspectives (p. 27-41), p. 28 518 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 28; UNICEF, Li, Kun, Burundi: Free primary education for all children, 7 September, 2005, http://www.unicef.org/infobycountry/burundi_28197.html

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and strategies, then the new post-civil war education policy risks not be useful in bringing about a more equitable and in the end peaceful society.519 One way to change the educational system is by Ndura termed “transformative education” which is a concept found between multicultural education which needs to generate agents of peace and peace education, which needs to be multicultural, and it “empowers educators and students to become reflective agents of change who advocate for and labor to achieve equity, social justice, and peaceful coexistence in their interethnic communities and in the multicultural global community”.520 Thus transformative education needs to be both multicultural and generate agents for peace, in that educators and students as agents for peace will be able to recognize other people’s stories and experiences of suffering, acknowledge responsibility for the actions taken by their own group towards other groups, be capable of showing empathy and trust toward others, and be nonviolent in their demeanour and behaviour.521 Promoting peace education, Ndura explains the role of teachers in peace education to be as follows: “Educators must become transformative intellectuals who possess the dispositions, knowledge, and skills necessary to develop a discourse that unites the language of critique with the language of possibility.”522 The educators importantly “must also become ethnic border-crossers who understand the impact of their ethnic identities on their classroom practices and interactions. In addition, they must become critical pedagogues who can transform classrooms into critical spaces that question the obviousness of taken-forgranted assumptions.”523 519

Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 43 Ndura-Ouedraogo, Elavie, The role of education in peace-buidling in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 39 520 Ndura, 2003, 2004a, 2004b, in Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Conflict: Comparative Perspectives (p. 27-41), p. 28-29 521 Ndura in press and Salomon (2002), in Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in PostConflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Conflict: Comparative Perspectives (p. 27-41), p. 29 522 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 29 523 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire,

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Furthermore, as youth have been participating in the many cycles of interethnic violence that have taken place in Burundi over the years, it is imperative that the students must be heard and listened to as an integral part of transformative education.524 A study was conducted in Burundi in 2006 with the purpose of examining how educators viewed their roles and the role that educational programs and practices could play in the peace-building process in the African Lakes Region, and the study involved 36 participants (33 professional educators and 3 high school students who came from 3 different provinces in Burundi).525 As part of this study a smaller qualitative study was carried out that focused specifically on Burundi and the issue of: “What do educators and students perceive to be the role of educational programs and practices in the peace-building process in Burundi?”, and the participants were asked to respond to the following questions:526 1. 2. 3.

How have ethnic conflict and violence impacted educators’ and students’ lives in Burundi? How do educators and students characterize the role of education in the quest for sustainable peace? To what extent does educators’ and students’ involvement in a discourse surrounding peace reflect a promising step toward societal transformation?

Five themes emerged from the study: “(1) ethnic polarization, (2) youth involvement in interethnic violence, (3) suffering and trauma, (4) group-hopping for survival and (5) education as a cradle of hope”.527 Under the theme “ethnic polarization” it was shown that many who had been children during the civil war had not known about their ethnicity until the

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Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 29 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 29-30 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 30 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 30 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 32

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war began, and that it was at that point when they learned about ethnicity and that ethnicity could be differentiated. As Kijaba, a Hutu student, who had been in second grade in 1993 when the civil war erupted, explained, “[m]y first experience is that I was able to understand what ethnicity is in Burundi”.528 The participant Langalanga, Hutu student (19 years), had been in elementary school in 1993, his parents had been educators and in 2003 his father had been killed, recounted his experiences during the civil war: 529 Children with whom we usually played and their parents rejected us …The military came to gather the Tutsis from school, the community, everywhere … and then I heard gun shots … [T]hey began shooting at the fearless Hutus who wanted to go find those soldiers … It was difficult for us to go to the commune because that is where the Tutsis were gathered … prior to the war, I did not know if there was a Hutu, Tutsi, or a Twa.

The participant Fédor, Tutsi student (20 years), had been in second grade in 1993, and had gone to private schools all his life, both his parents had survived the civil war, explained:530 When the crisis erupted, they started to say these are Hutus and those are Tutsis. So, I asked “What side am I on?” Then they tell you … I am Tutsi … they told me, since I did not even know the criteria … In any case, I learned to differentiate ethnicity during the crisis … [P]eople were killed because of their ethnicity.”

A man Pamphile, Tutsi Roman Catholic priest (42 years), and working as a teacher in secondary school since 2003, had experienced the genocide in 1972 of Hutus by the Tutsi-dominated government and military, as well as the civil war from 1993 to 2005, explained:531 528 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 32-33 529 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 32-33 530 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 32-33 531 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Conflict: Comparative Perspectives (p. 27-41), p. 31-32 and 34

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I lived an unhappy experience in 72 … I was eight years old … We had to hide in the swamps every night …We would see a Jeep with soldiers … They would take the Hutus, all Hutus … our teachers … and they would not come back … There were killings in 1995 … So the displaced [Tutsis] came to take revenge, assisted by the military… The next day every Hutu person residing in the town center had been killed … Hutus could not come to [the] church [located in the town center] and I could not go to the [Church] branches, because I was Tutsi.

With regards to the theme “youth involvement in violence”, young people were often involved in the inter-ethnic violence that took place during the civil war and youth in schools and the communities were responsible for intimidating, killing people and looting, as was explained by Pontien, an elementary Tutsi school teacher (31 years) who had himself begun secondary school as a student in 1993:532 Sometimes they caught students with grenades, sometimes with daggers … but then the most bizarre thing happened … It was a Sunday … every Tutsi student had purchased a sword or a dagger … [T]hey brought them to school and hid them in their bags … When we Hutus saw that … we had to warn the [school] authorities … We couldn’t sleep for several days and nights … One time we actually caught a student who was about to stab his classmate … He [the victim] was going to the restroom and the other [the perpetrator] followed him with a dagger … During a subsequent search, it was discovered that there were daggers and grenades in bags belonging to the Tutsis.

Youth’s involvement in the conflict was all-compassing, which was explained by Liz, a Hutu school administrator, who during the civil war had despite risking her life continued to teach secondary school, and had lost her home already in 1993:533 During the years 1995 and 1996 … we often heard of secondary school children watching people burn in tires … At the height of the crisis, young people would gather in hidden corners unknown to their parents in order to smoke marijuana. They would smoke drugs in order to be brave enough to ambush and murder people … They looted, smoked drugs, drank a lot of alcohol … They were stealing and stealing … [A]fter smoking drugs and mixing with alcohol, they would rape anybody that they saw.

532 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Conflict: Comparative Perspectives (p. 27-41), p. 31, 34-35 533 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 32- 35

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4.5.1.1.

Education as the Cradle of Hope

Education was seen as a “cradle of hope” for several of the participants as they viewed education as having a central role to play in creating lasting peace in the society, and that the teachers also needed to become the role models for peace by actively working for peace by modelling their own behavior in school and everyday life, and not shy away from by bringing up difficult issues such as ethnicity and reconciliation in school.534 Pamphile, the Tutsi priest and teacher, believed that535 [i]ntellectual culture reduces barbarism and [tempers] emotions … Education plays a critical role in human development … [A] society where everyone is educated has a better chance to live in peace … because education broadens people’s frames of reference … Ignorance is really dangerous.

Langalanga, a Hutu student, meant that536 [i]f the youth are not taught to develop peaceful dispositions or to work towards peace when they are still in school and if they are not taught to uncover the wrong ideas which are in their hearts when still in school, I don’t think they will change in their adult life when they start working.

Kijaba, a Hutu student, explained:537 Civic education which teaches patriotism among other things should foster selfexposure and facilitate the sharing and comparing of lived experiences among students from different clans or tribes … Education should help [people] liberate themselves from ethnism. 534 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36-37 535 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36 536 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36 537 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36

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Liz, a Hutu school administrator, argued:538 Educators [must] guide the youth, teach them the value of peace … show them that without peace we cannot progress we only march backwards … because without peace, we destroy … Without peace, no one thinks about anybody else … We must insist on patriotism, human rights, [and] respect for the other.

Pamphile continued:539 Educators’ primary role is to become role models and guides … true peace agents who are committed to the reconstruction of their nation … Their role is really vital to the development of the children’s humane conscience.

Kijaba, a Hutu student, meant that the teachers had an important role to play in the reconciliation process by bringing up issues of ethnicity and teaching what reconciliation is about:540 Educators should teach the reconciliation process … They should not be afraid of discussing ethnicity and ethnic membership … You should not be afraid of discussing your ethnic background even if there are some schools where you are expelled whenever you talk about ethnicity.

4.5.1.2.

Educators and Educational Programmes and Practices in the PeaceBuilding Process in Burundi

This part of the study focused on the educators and posed one main question: “What do educators perceive to be the role that educational programs and practices must play in the peace-building process in the African Great Lakes Region?”, and the participants were asked four questions: “(1) How do educators characterize their experiences with ethnic conflicts and violence? (2) How do educators characterize the role of education in the pursuit for peace? (3) How 538 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36 539 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 36 540 Ndura-Ouedraogo, Elavie, Grassroots Voices of Hope, Educators’ and Students’ Perspective on Educating for Peace in Post-Conflict Burundi, in Mc Glynn, Claire, Zembylas, Michalinos, Bekerman, Zvi and Gallagher, Tomy (Eds) (2009), Peace Education in Conflict and Post-Confl ict: Comparative Perspectives (p. 27-41), p. 37

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do educators characterize the role of education in the process of societal change and reconstruction? (4) How do educators characterize their roles in the quest for sustainable peace?541 In this part of the study six themes surfaced: (1) suffering and trauma from the conflict; (2) material losses; (3) rebuilding education from infrastructure to the courage to participate; (4) the critical role of education; (5) educators as agents of peace and societal transformation; and (6) challenges to the educators’ task”.542 The study found that all of the participants had been deeply affected by the civil war, and that several participants pointed out that the civil war had severely affected the education system, not only by the destruction of school buildings and resources, but also by how the civil war had affected teacher-students relationships, educators’ work, and student academic progress and performance.543 The participant Steve, a secondary school Tutsi teacher, explained that544 [t]he conflict affected education. Sometimes teachers were intimidated and threatened. Some students were like out of control … [T]hey would say “Give us points … if you don’t give us points, you’ll see …” As a result, scores of students graduated who did not deserve to do so during the war. There was a time when students had to repeat an academic year up to three times because of strikes or war-related insecurity.

The participant Immaculée, a Hutu educator since 1995, and currently a secondary school principle with more than 600 students (in 1995 she was forced into hiding for two years as she was attacked by soldiers when she was six months pregnant), explained:545 I began teaching here in 1995, but I couldn’t work because the entire classroom, the entire school, had been destroyed. Doors had been stolen, windows had been stolen,

541 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 40 542 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 41 543 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 41, 43 544 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 41, 43 545 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 41, 43

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the school was empty. The principal had been killed. I was asked to replace him. I said, ”How can I replace him … there is nothing here? It’s a building occupied by soldiers. It’s a military camp. How am I supposed to enter the building?” So, I tried to reach out to the parents. I started with 11 students in the 7th grade. I tried to recruit students who had been run off from their schools. So I got 22 students signed up for the 8th grade. The student population increased to 40 and then to 80, and I continued like that. I have 602 students right now. We have already graduated four classes. Our students are brilliant. We have been ranked first in the province more than five times. Some of our graduates are attending the university, but many live in very difficult conditions. Some have to walk 18 km each way every day to attend school.

Immaculée explained about the post-civil war school environment and the change of the student body :546 You have seen that students are older than usual. There are some who are even older than me. There are some who were police officers who had joined the army while in tenth grade. There are some who were illegally married because they could not marry legally due to the war. We have students who have spouses and children, for example, there is a man who is 41 years old. He was a junior in high school when the crisis erupted. He came with his tenth-grade transcripts. I made him start over in the tenth grade, to make sure. Last year, he failed to meet the graduation requirements. Right now, he has good grades and he will graduate.

Furthermore with regards to the role of education in the post-conflict environment, everybody agreed that education had a vital role to play to foster interethnic tolerance and co-existence, and in reconstructing the society, and as Immaculée said:547 Students trust education. If they are taught that killing is a good thing, they believe it. If they are taught that killing is a bad thing, they believe it. Since students believe what they are taught in school even probably more than they believe what they are taught at home, education plays a critical role … because today’s youth are the ones who will build and lead the country in the future. We must therefore educate them to become peace agents.

The participant Trésor, a Hutu elementary school principal in 1994, and who was imprisoned in 1994 for 11.5 years with no access to a trial or legal representation, 546 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 43 547 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 44

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and is working now as an administrative secretary “in the local office in charge of school inspection”, explained:548 Education for sustainable peace must be inspired by a clear vision. We must educate children for peace. We must help them understand what peace means. In order to live in peace, they must know the values of respect for their fellow human beings. Peace education must be integrated in all subjects (math, French, social studies, Kirundi).

Trésor continued:549 Educators, i.e. teachers, principals, inspectors and all of us who work in education constitute the educational elite. We must have peace. We must understand what peace means. We must give what we have. Therefore, educators must first inform the students and teach them to work toward sustainable peace. We must live in peace. We, the older generation, sometimes don’t have a clear vision. But our children do not have to continue living with these problems. We must erase what has confused our generation from the minds of children. We should not keep the children confined in this conflict; we must find ways to teach them to work towards peace.

Immaculée explained how she teaches openly about ethnicity and ethnic relations:550 I like discussing ethnic issues when I teach the lesson on ‘ethnic stereotypes’. I ask the students, “Am I Hutu?” “Yes.” I call on a Tutsi student. “Are you Tutsi?” “Yes.” “Do you know your grandfather?” “I know him.” “Your father’s grandfather?” “I don’t know him.” “How do you know that you are Tutsi?” He can’t answer. Or I ask them, “You are a student?” “Yes.” “Will you be happy when you pass?” “Yes.” “I am the principal and a Hutu. If I were to give you 10 extra points, will you accept them?” “Yes.” “Why would you accept that I give you 10 extra points since I am Hutu?” This makes them think. Then I conclude that the problem is not ethnicity, but poverty and ignorance.

548 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 41, 44 549 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 44 550 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 45

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Many of the participants expressed concern about the challenges the educational system experiences in Burundi which includes lack of teaching resources, lack of books and reference material such as dictionaries, the need for copy machines and computers, low teacher salaries, the poor living conditions for the educators as well as for the students, overcrowding in the classrooms (with about 85 students per classroom) and student poverty.551 Immaculée gave the following description:552 There are many students who are orphans here. Even when they are not completely orphans, they lack the necessary means. Because of this war, I have problems. There are many students who are smart and want to get an education, but who lack the means. The policy says that every student must pay [school tuition and fees]. So, at the end of the year, I admit them without knowing their situation. During the year, I realize that they are destitute.

As Ndura argues, in order to transform the educational system it is also necessary to change the professional schooling, training and practices for the teachers so that they are properly assisted in their work as teachers and educators in the post-conflict society.553 As she noted: The devastating impact on individual educators’ lives was so great that a key question that must soon be addressed relates to the extent to which educators have the capacity to use their own experiences of pain and suffering to inspire peaceful dispositions through their classroom relationships and practices.554 4.6.

Peace Agreements, Issues of Exclusion and Discrimination, and Education

With greater recognition of the role of education as a tool to build a peaceful and tolerant society but also as a tool to create division and foster intolerance, to include the issue of education in peace agreements in a more conscious way than making reference to human rights and then mindlessly listing several rights 551

Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 45 552 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 45 553 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 47 554 Ndura-Ouedraogo, Elavie, The role of education in peace-building in the African Great Lakes region: educators’ perspectives, Journal of Peace Education, Vol. 6, No. 1, March 2009, 37-49, p. 46

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including education without really understanding the importance of education should become a priority. This also needs to be seen in the context of exclusion, discrimination, lack of access to education, poor quality education and lack of work opportunities in conflict countries and that many young people are the combatants in today’s conflicts. As Dupuy has stated “peace agreements are critical elements in mapping how peace will be built and the social contract renegotiated in the aftermath of an armed conflict. Addressing education in a peace agreement is a step towards addressing how to mitigate the impact of armed conflict on society in general and on education in particular, as well as how to transform the roots of conflict through the education sector. Incorporating education in peace agreements can be critical to bringing the physical, direct violence of an armed conflict to an end, as well as in creating a window of opportunity to build positive, sustainable peace through education.”555 She continues “incorporating educational issues into peace agreements can help to ensure and acknowledge that education can play a central and active role in building peace in the aftermath of an armed conflict by providing a catalyst for post-conflict changes and mapping the way forward. Detailing how the education system will be reconstructed to overcome the generally negative impact that armed conflict has on the education sector is one element of this, but so too are provisions for how an education system will be reformed, given the contributory role that education can play in the outbreak of armed conflict.”556 A study of whether the issue of education was included in peace agreements was conducted by Kendra Dupuy of the International Peace Research Institute (PRIO), who went through the 43 full peace agreements that had been signed between 1989 and 2005.557 Dupuy explained that 144 peace accords had been signed between 1989 and 2005, however of these 43 were full peace agreements, and of these 43 agreements, 37 (86 per cent) had been made available to the public.558 It was found that in 11 (30 per cent) of the 37 agreements no reference to education was made in any way, but that in 26 agreements (70 per cent) some reference to education was made.

555

Dupuy, Kendra, Appendix Education in Peace Agreements, 1998 to 2005, p. 26, in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 556 Dupuy, Kendra, Appendix Education in Peace Agreements, 1998 to 2005, p. 26, in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 557 Dupuy, Kendra, Appendix Education in Peace Agreements, 1998 to 2005, p. 26, in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 558 Dupuy, Kendra, Appendix Education in Peace Agreements 1998 to 2005, p. 26 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008

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In the Lomé Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front (RUF) of Sierra Leone of 1999 it was stipulated that “[t]he Government shall provide free compulsory education for the first nine years of schooling (Basic Education) and shall endeavour to provide free schooling for a further three years” (Part Five, Article XXXI).559 The Agreement also provided that the public education system would be funded by income from the country’s gold and diamond industry (Part Two, Article VII). In the Northern Ireland Peace Agreement, the Good Friday Agreement, of 1998 it is stipulated that “an essential aspect of the reconciliation process is the promotion of a culture of tolerance at every level of society, including initiatives to facilitate and encourage integrated education and mixed housing.”560 Furthermore it was stipulated in the Agreement in its section on economic, social and cultural issues that the British Government was to “place a statutory duty on the Department of Education to encourage and facilitate Irish medium education in line with current provision for integrated education”.561 In an annex to the Agreement it says that “[a]reas for North-South co-operation and implementation may include the following: 2. Education-teacher qualifications and exchanges.”562 In Bosnia and Herzegovina, the Dayton Agreement of 1995 made some provisions for education in that in its Annex 4, Article 2 (the Constitution of Bosnia and Herzegovina) it the following is stipulated: “Enumeration of Rights. All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include: … The right to education.”563 Furthermore in the Agreement’s Annex 6 another reference to human rights is made: “The Parties shall secure to all persons within 559 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 32, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 560 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 37, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 561 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 37, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 562 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 37, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 563 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 33, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008

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their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex. These include: … the right to education.”564 Smith and Vaux have explained about the school system in Bosnia that by 2003 it was:565 Despite the intentions of the international community, Bosnia’s schools are now segregated and nationalist agendas are pursued through them. The decision of the international community to push forward rapidly with reconstruction, hoping that this would create stability, meant that there was not enough time (or leverage) to negotiate access to schools by minorities, issues of curriculum, teacher selection and language of instruction. As a result, control of education was decentralized from the central authority – where the pledge of multi-ethnicity could be enforced by the international community – to the three entities created under the Dayton Peace Agreement. The original intention that the three entities would evolve common policies has been overtaken by the fact that they have reconstructed without having to make concessions beforehand. Now there is little chance of harmonising the educational systems. On the contrary they are moving further apart with the development of separate national histories, language and religious instruction.

For Burundi the Arusha Peace and Reconciliation Agreement of 2000 acknowledged that lack of educational opportunities was one of the causes of armed conflict in the country and Protocol III, Chapter I, Article 2 stipulated the existence of “a discriminatory system which did not offer equal educational access to all Burundian youths from all ethnic groups”.566 The acknowledgement that many groups of children and youth had been excluded from the educational system before the armed conflict in the country was addressed in Protocol I of the Arusha 564 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, Appendix Education in Peace Agreements, 1998 to 2005, Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 33 565 Smith, A., and Vaux, T. 2003:47, Education, Conflict and International Development, DFID, UK in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 10 566 Arusha Peace and Reconciliation Agreement of 2000, Protocol III, Chapter 1, Article 2, Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 27, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Confl ict Prevention and Peacebuilding, 2008

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agreement, as was the fact that many children had had their education disrupted by the conflict, and to remedy this situation Protocol I, Chapter II, Article 7 provides for:567 –

– – –

–

Equitable regional distribution of school buildings, equipment and textbooks throughout the national territory, in such a way as to benefit girls and boys equally; Deliberate promotion of compulsory primary education that ensures gender parity through joint financial support from the State and the communes; Transparency and fairness in non-competitive and competitive examinations; Restoration of the rights of girls and boys whose education has been interrupted as a result of the Burundi conflict or of exclusion, by effectively reintegration them into the school system and late into working life; Education of the population, particularly of youth, in positive traditional cultural values such as solidarity, social cooperation, forgiveness and mutual tolerance, Ibanga (discretion and sense of responsibility), Ubupfasoni (respect for others and for oneself) and Ubuntu (humanism and character).

The Arusha Agreement also addressed the educational needs of the refugees and IDPs in its Protocol IV, Chapter I, Article 4, where the Burundi government was obliged “to assist and support returning refugees and IDPs with education” as well as to acknowledge diplomas that students had been given when living abroad. The peace agreement “Inter-Congolese Negotiations: The Final Act” (The Sun City Agreement) of 2003 for the DRC states in its Section 21 “the alarming situation in the national education sector characterised by ever-decreasing school attendance rates, the non-attendance of between three to five million children, the recruitment of thousands of children of school-going age by belligerents and armed groups, the destruction of many school buildings and equipment and the plundering of teaching material, the increasing wastage at all levels, the marked depreciation of teaching outcomes, the pronounced degradation of living and working conditions of teachers and learners as well as moral values which have also resulted in the brain drain”.568 The Final Act of 2003 stipulated that as a matter of urgency the government should “as part of an emergency program”:569 567 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 27, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 568 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 29, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 569 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 29, Appendix Education in Peace Agreements, 1998 to 2005 in

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i.

Rehabilitate and re-equip at least 60% of the destroyed or damaged school or university infrastructures; ii. Build new schools, according to a balanced plan which takes account of zoning; iii. Allocate at least 10% to 15% of the national budget to education; iv. Adopt policies and measures to achieve the so-called “millennium” objective according to which every girl and boy from now until the year 2015 will have equal access to primary education as well as to all the other levels of teaching; v. Significantly increase the salaries of teachers at all levels of the system, offer them decent working conditions and rigorously manage the teaching career in order to improve the profi le of the profession; vi. Supply school and university establishments with books, resources and audiovisual equipment etc; vii. Introduce training in new technologies (eg information technology) into the teaching programme; viii. Re-launch the policy relating to special training as well as to the reintegration of children and young people including child mothers who fail and drop out of the education system; ix. Reactivate and implement resolutions taken by the Etats-Généraux of Education held in Kinshasa from 20 to 29 January 1996 and revise the National Education framework law.

For the short and medium term the Final Act reinforced the need to:570 i.

ii. iii. iv. v. vi.

Rationally manage the fi nancial resources of the education sector in order to ensure free primary education as an objective to be achieved urgently, by progressively raising the percentage of children in full-time schooling, particularly in the case of vulnerable populations, girls and underprivileged groups; Create an Educational Promotion Fund; Put in place regulations and provisions for the effective management of education structures and facilities at all levels and in all the provinces; Step up professionalism at the secondary school level; Redefine the role and raise the status of the teacher at the Primary, Secondary, Higher and University levels; and of Scientific Research; Draw up a policy to speed up the training of University teachers and researchers, and create a special fund to support doctoral studies and research within the country;

Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 570 Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 29, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008

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vii. Reinforce programmes and courses focused on civics and human values; viii. Apply the texts regulating the transposition of ranks at the primary and secondary levels; ix. Define and establish collaboration based on the principle of partnership in national education.”

The Final Act also acknowledges that corruption reaches into the education system, where in Section 27 it is stipulated that “at the heart of this crisis corruption in many forms appears as the manifestation of the anti-values and non-transparent practices on the part of men and women seeking to advance their careers in executive spheres, e.g. the army, the police, information services, public administration, health, education …”.571 Furthermore the Final Act of 2003 for DRC also promotes the “promotion, through the national educational system, of values of good citizenship, as well as a culture of dialogue and peaceful resolution of confl icts”.572 4.7.

Why Is Education Important?

Save the Children has identified five reasons why the international community needs to step up funding for education in conflict-affected countries, and they are:573 – – – – –

education is what children want; education saves lives; education promotes economic growth; there are clear links between education and peace and stability; and an investment in education is an investment in future good governance.

The Women’s Commission for Refugee Women and Children conducted a study of the most important concerns that young people in conflicts had regarding their situation.574 The study was conducted in Kosovo, Northern Uganda and 571

Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 29, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 572 Section 35 of the Final Act of 2003, Dupuy, Kendra, Table Full Peace Agreements 1989-2005 from Harbom, Högbladh, Wallensten (2006), p. 29, Appendix Education in Peace Agreements, 1998 to 2005 in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008 573 Save the Children, Last in Line, Last in School, How donors are failing children in conflict-affected fragile states, 2007, p. 5 574 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005

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Sierra Leone, where more than 2,300 young people aged between 10 and 24 were questioned by 150 adolescents. One of the top concerns for all the young people surveyed was lack of quality education.575 The young people from Sierra Leone meant that education was an integral part of building a peaceful society. All the young people surveyed made clear that insecurity and the destruction of the educational systems were preventing them from receiving “any kind” of education.576 The NGO Christian Children’s Fund (CCF) sensitization programs for girls formerly associated with armed groups in Sierra Leone also showed that education was of a high priority for the girls because it provided hope for the future.577 In fact, education held such value that the young people surveyed by the Women’s Commission experienced “feelings of hopelessness, uncertainty and abandonment by their society” as a result of not having an education.578 Education was viewed as critical to their survival, protection and full recovery from war exposure, and provided them with “self-respect, economic opportunity and having productive roles and voices in society”.579 All saw education as a crucial precondition to peace and security. However, as the youth pointed out schools in conflict areas are also frequently targeted by soldiers and different armed groups in different ways.580 School children in Northern Uganda were abducted by LRA from schools, or when they walked to or from school. In Kosovo, during the years before the war, there were two parallel school systems in place and they did not teach the content of history in the same way to the Albanian and Serbian students.581 In Afghanistan the UN stated in 2006 that every single day a girl’s school was burned down or 575 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 8-11 576 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 9 577 Shereef, C. A., Jonah, D., Hayes, M., Kostelny, K and Wessells, M., The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Acing the Future, 2006/2007, p. 3 578 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 9 579 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 9 580 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 11 581 Women’s Commission for Refugee Women and Children, Youth Speak Out: New Voices on the protection and participation of young people affected by armed conflict, January 2005, p. 11

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a female teacher killed by the Taliban.582 These attacks have had the effect that parents stopped sending their children to school because of fear of attacks, and as a result the children were being prevented from receiving an education. In the Palestinian Occupied Territories, almost 100 schools had been shot at during 2001 by Israeli soldiers, and 71 additional schools were attacked by Israeli tank shelling and rockets shot from helicopters.583 Following the violence of September 1999, 80–90 per cent of all the school buildings and related infrastructure had been destroyed in East Timor.584 Schools are also many times used as a recruitment ground for military groups because schools provide easy access to children.585 In DRC, Rwandanbacked rebel groups have used schools to recruit children into their ranks. In Nepal tens of thousands of school children were abducted with their teachers from their schools by the Maoist Communist party of Nepal, the CPN, during the internal conflict which erupted in 1996.586 The school children were abducted for “political education” sessions, and while most returned after a few days, many were abducted with the aim of having them participate in the conflict. Between January and August 2005 alone, more than 11,800 students were abducted from rural schools by the militia for indoctrination or forced recruitment.587 As a result, parents chose to take their children out of school and/or send them away to other districts to avoid recruitment. In Sri Lanka, many children were abducted by the LTTE on their way to and from school.588 Tamil schools became militarized by the LTTE, and they used schools for recruitment, and teachers needed to go out of the class room if they did not comply with the LTTE or they risked being harassed.589 In Colombia, armed groups have used schools both for military activities and for recruitment of children.590 582 Rashid, A., How to help Afghanistan, A global response to the crisis, Washington Post, July 3, 2006, A21 583 Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 2 584 Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 2 585 Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 3 586 Amnesty International, Nepal: Children caught in the conflict, 2005, p. 4 587 Save the Children, Rewrite the Future, Education for children in conflict-affected countries, 2006, p. 6 588 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 10 589 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, 2006, p. 9 590 Watchlist on Children and Armed Conflict, Colombia’s War on Children, February 2004, p. 3

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One reason why attacks on schools take place during conflict is as Iain Levine, Chief of Humanitarian Policy, UNICEF, has explained that schools “represent state authority”.591 For instance, in rural areas there are many times no other public buildings than schools and health centres which was the situation in Southern Sudan. That the school environment might not be safe is reflected in other ways than attacks, abductions and recruitment. Another issue is that during conflict the pressure felt by a community can also affect the school environment. In times of war, corporal punishment appears to increase, because teachers as members of the community also experiencing war may choose to vent their distress onto their students.592 Also, in refugee camps many times in order to get good grades the female students are requested by their teachers to in turn provide sexual favours as has happened in West African refugee camps.593 UNICEF has identified situations showing how the political manipulation of education in conflict situations can manifest:594 – – – – – – –

the uneven distribution of education as a means of creating or preserving positions of economic, social and political privilege; education as a weapon in cultural repression; the denial of education as a weapon of war; education as a means of manipulating history for political purposes; education as a means of diminishing self-worth and encouraging hate; segregation in education as a means of ensuring inequality and inferiority; using textbooks to inhibit children from dealing with confl ict constructively.

Conflict-affected children and parents all over the world view education as a priority and ask that the educational needs of the children be met.595 There is a consistent recognition by national and international actors that providing education and having a safe area such as a school can provide a refuge, safety, stability and a sense of normalcy for children during conflict. In DRC it was estimated in 2006 that about 5.3 million children between 6 and11 years old did not attend school, and that more than 6 million children between the ages of 12 and 17 year old had

591 592 593 594

595

Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 2 Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 5 Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 5 Bush, K. and Saltarelli D. (eds), The two faces of education in ethnic conflict, (2000) see in Nicolai S. And Triplehorn, C., The role of education in protecting children in conflict, March 2003, p. 6 Save the Children, Rewrite the Future, 2006, p. 12

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not ever attended school.596 This has been one of the highest numbers of out-ofschool children in the world. In addition, in some cases in DRC teachers have not been paid for more than ten years. For children that have been associated with the armed forces or groups many cannot read or write, and to provide for their education needs is crucial, a group who many times are older than the average children when they begin school. In DRC, Save the Children has worked with schools in order to make it possible for the most vulnerable children whose parents cannot afford the school fees to be able to go to school.597 The vulnerable children include older children and former child soldiers. Save the Children supports teacher training, donates learning materials and assists in rehabilitating schools.598 Also, many of these children are the first to go to school in their families. In 2009, of the 7 to 14 year olds in DRC, 59.4 per cent are enrolled in school, and out of these 63.4 per cent are boys and 55.4 per cent are girls.599 The compulsory ending age limit for school in DRC is 13 years. Save the Children has stated that “quality education and protection converge during emergencies to prevent harm to children”.600 To give an example, Save the Children raised landmines awareness through schools in Northern Sudan. Theatre training is being offered to children’s groups and their teachers and thereafter the children make up little plays about the dangers of landmines which they then show their community and other children.601 This has led to the number of children being injured or killed by landmines having significantly gone down in these areas that are most affected, and in their families and communities children have become “messengers of social change”.602 To have childfriendly spaces and temporary learning centres established makes it possible to have a place to talk about different dangers to the safety and well-being of the child. The identification of children who have become separated from their families, and the reunification of them with their families, is facilitated by such spaces and centres, as well as that these are places where the most vulnerable children can be helped to be identified and known about.603 596 597 598 599 600 601 602 603

Save the Children, Rewrite the Future, 2006, p. 5 Save the Children, Rewrite the Future, 2006, p. 8 Save the Children, Rewrite the Future, 2006, p. 8 IPEC, International Programme on the elimination of child labour, ilo.org/ipec, accessed June 15, 2009 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 3 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4

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The UN Security Council issued a statement in July 2008 acknowledging the role of education in armed conflict in terms of halting and preventing recruitment and re-recruitment of children into armed forces and groups and the importance of providing it:604 The Security Council recognizes the important role of education in armed conflict areas as a means to achieve the goal of halting and preventing recruitment and rerecruitment of children and calls upon all parties concerned to continue to ensure that all children associated with armed forces and groups, as well as issues related to children, are systematically included in every disarmament, demobilization and reintegration process with a particular emphasis on education.

To provide education to children from the beginning of a conflict or an emergency makes it possible to provide the child with a continuous learning process as well as guaranteeing the child’s cognitive training and development.605 By offering a secure place where the child can safely be together with other children and adults lessens the risk that the child’s continuous emotional and social development is disrupted.606 As Save the Children explains a school is a place where a child is supposed to be a child and where psychological support and a sense of normality can be offered to lessen the burdens of the child. In order to be able to provide peace, prosperity and stability, the curriculum in conflict situations needs to geared to that context and topics on for instance security, health, psychosocial support and conflict resolution should be included in the education programs.607 Also the necessity to have a transparent and accountable education system in place is highlighted by Save the Children, suggesting that international aid organizations could serve as “an unbiased channel of communication between all actors in the education sector”.608 Also, in conflict situations, temporary schooling and psychosocial assistance to prepare for children’s learning might need to be offered before children go back to school and schools have been repaired or rebuilt after damage or destruction to the buildings.609

604 UN Security Council, Presidential Statement, S/PRST/2008 of 17 July 2008 605 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 606 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 607 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 608 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 4 609 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 5

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4.7.1.

The Role of Education/Quality of Education We have a stark choice: to teach children in ways that will continue the conflicts and violence we see around the world, or to give our children a safe, positive environment where they can learn a better way.610

As is widely acknowledged today education can play both a very positive role in conflict prevention and peacebuilding, and a very negative and destructive role if it is promoting and/or supporting division, exclusion, intolerance and discrimination. Save the Children has identified four aspects that need to be included in any analyses if education is to play a positive role in the support of peacebuilding and conflict prevention in a country affected by armed conflict, and they are:611 Inclusion/access: Primary schools must be free and close to home, and must do all they can to attract all children in a community; Safety/protection: Schools must be safe from attack and must be perceived as places where intellectual curiosity and respect for universal human rights is fostered; Relevance: Schools must use a non-biased curriculum, and educational materials that are relevant to the children and their context; Accountability: School management must be authorized to make necessary decisions for the pupils’ welfare. To achieve this, the opinions of children, parents and community members must be taken into consideration.

The quality of education is an important challenge to address, and for instance Save the Children has reported that only 42 per cent of the teachers in Afghanistan, Angola, Nepal and Southern Sudan were found to have attended secondary school or been given any teacher training at all, and that an assessment of Grade 3 students in the abovementioned countries found that a fi ft h and a half of these students could not read even one word from a text given to them.612 The children had simply copied what was written on the board without knowing what they were doing. It was found that it was mainly the vocal students that the teachers focused on, neglecting the silent children, and therefore the teachers did not know whether these students could either read or write.613

610 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 3 611 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 17, Emphasis by Save the Children 612 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. viii, 18 613 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20

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There are many ways to define the term “quality of education”, such as the amount of material resources in schools or pass rates and other outcomes of the educational process; however Save the Children defines “quality of education” as meaning:614 Children’s right to fulfi ll their potential through an on-going learning process. Common elements are relevance and children’s active engagement or participation.

Furthermore, Save the Children’s definition of a “good-quality education” is that it needs to be:615 – – – – – –

relevant to children’s needs and country contexts, now and for the future; appropriate to their developmental level, abilities, language and potential developmental opportunities; participatory-involving children, their families and communities in the process of learning and the organisation of the school; flexible enough to meet different and changing conditions such as environmental and social developments, technological advances and crises; inclusive of all children – seeing diversity and differences between children as resources to support learning and play, rather than problems to overcome; protective – safeguarding children from exploitation, abuse, violence and conflict.

Furthermore, Save the Children has listed the learning outcomes for children that should be the result of a good-quality education:616 – – – – – – –

language development; literacy and numeracy; new knowledge and skills; emotional and social development; critical thinking; attitudes and values that reflect human rights; development of their personalities, talents and creativity to their fullest potential.

It has been shown that schools with high levels of repetition, low achievement and overage enrolment, poor teaching, degraded facilities and very large class 614 Footnote 5 in Save the Children, Where Peace Begins, Education’s Role in Confl ict Prevention and Peacebuilding, 2008, p. 24 615 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 18, emphasis by Save the Children 616 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 18

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rooms have higher levels of early drop-out rates.617 These are typical attributes of CAFS countries. In Afghanistan and DRC studies by Save the Children have shown that initially the parents were hoping when the children began school that they as a result from going to school would apart from learning how to read and write get better work opportunities.618 However if the parents’ expectations were not fulfilled, such as that the children did not learn very much, remained illiterate, or did not graduate or receive exam certificates, then the parents took their children out of school more often so that they for instance could work instead.619 However, research by Save the Children has also shown that children are more likely to drop-out of school when they themselves do not think that they learn enough or if they think that their education is of poor quality and irrelevant, and further it was shown that if they drop out coming back to school will be harder.620 Children in Afghanistan who do not go to school have said that they want the schools to teach them topics that would enable them to get an income, and children in Afghanistan and DRC have discussed “the importance of how they learn, emphasising the importance of teachers asking them questions”, these children defining a good teacher as someone “who did not beat them”.621 Also, in CAFS especially there is a need for the teachers to make children feel safe as well as being able to positively support their learning.622 Many times in CAFS there has been a lack of formal schooling, security and much violence has been witnessed by the children and these are reasons as to why their classroom experience is so important.623 Attitudes and what is considered acceptable behavior need to be addressed and many times challenged, and if they are positive change can take place very quickly, which teacher training by Save the Children, in for instance Afghanistan, has shown where a teacher having attended such a training explained: “When I was at school we would all say ‘yes’ whether we had

617 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 618 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 619 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 620 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 621 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 622 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 17 623 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 18

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understood or not because we were afraid we would be beaten ...We have learned not to beat the students or get angry.” 624 Giving teachers in CAFS relevant teacher training that supports critical thinking often also includes challenging the teachers’ own traditional views and ways of teaching, which is of real importance in CAFS where children need to be taught problem solving through other means than violence such as discussions and compromises.625 As Save the Children notes “[t]eachers and students who have lived through violence and conflict have a shared experience that can be used-with mutual trust and respect-to transform lives and build peace”.626 Furthermore, so called child-friendly teaching is of particular relevance in CAFS where many children also experience poverty, hunger and/or poor health in addition to violence, and Save the Children has provided training specific to this need, that is pre-and in-service training.627 This training was given to teachers in Afghanistan, Angola, Nepal and Southern Sudan, and afterwards it was shown that these teachers “were more likely to address students by name, praise them, ask individuals questions and help them to solve problems, … to speak in a friendly tone, bend down to children’s level and make eye contact”.628 Furthermore, teacher codes of conduct were created in Côte d’Ivoire by teachers, students, regional education officers and the Ministry of Education with the support of Save the Children in 1,800 schools, in which the teachers’ roles and what was to be considered acceptable behavior in classrooms, the schools and the local community were determined, and as one child explained “[s]ince Save the Children has been working with our school, teachers don’t hit the students”.629 It also needs to be acknowledged that teachers in CAFS face considerable challenges, affecting their abilities to work as teachers and providing an adequate education such as that many times they can only teach for a short period of time, taking on two or three shifts a day sometimes with two hours teaching time at the most, and with short school days also in schools with only one shift.630 In Angola it was found that the teachers only had time to teach one lesson per day even as 624 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 18 625 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 626 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 627 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 628 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 629 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 630 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20

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five lessons were noted in the timetable, and in 2006 in Sri Lanka a study showed that the children who lived in the conflict affected areas in the country’s northern and eastern parts went to school about 80 days a year, while the other children in the country went to school on average 210 days a year.631 To develop the curriculum after conflict, sometimes decades of conflict, gives rise to several challenges as many times the curricula of schools have contributed to violence and armed conflict by exclusion and promoting division and hatred. Topics including language and history have many times prior to the conflict been used in discriminatory or divisive ways, like in Kosovo and Thailand. History and science are often very sensitive subjects to not only teach but to develop into the overall school curricula, where for instance in Rwanda over ten years after the genocide history was not taught and was not part of the school curriculum.632 More specifically, Scott Weber, Director General of Interpeace, argued that “[i]n Rwanda they stopped teaching history in the schools in 1994 – because they didn’t know which version of history to teach. All the textbooks they had available were written by regime after regime, and only reinforced differences, divisions and ethnic hatred. So they just stopped teaching it.”633 Save the Children has pointed out the need to give perhaps better training to for instance teachers ‘in analysis and explanation’ of sensitive subjects prior to talking about the latest conflict(s) to children and students.634 The transparency and accountability of education systems during armed conflict should be a priority especially in those cases where education systems have been demolished or damaged, and during instability and conflict one of the roles of Save the Children “is to act as an unbiased channel of communication and trust between all actors in the education sector”, which it has done in Nepal and Sri Lanka.635 In order to improve access to schooling as well as a quality education, it is necessary that parents and children are able to get involved in school management councils (SMCs) or parent-teacher associations (PTAs). From these relationships are being developed, and trust, cooperation and reciprocity are also able to be created, and Save the Children underlines the importance in this context to get the children engaged in the education process as a way to cultivate

631 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 20 632 For Rwanda see Obura (2003) in Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 20 633 Scott Weber in Save the Children, The Future Is Now, Education for children in countries affected by conflict, Rewrite the Future, 2010, p. 26 634 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 20 635 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 20

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attitudes and values that encompass peaceful behavior and mentalities.636 As a Nepalese teachers’ group has stated:637 When there is democracy inside the school, inside the classroom, when children are grown up, the democratic values and culture they have learned in school will be reflected in the society and community, and that in the long run will help peace and democracy.

To take into account the views of the children and youth as well as to ensure their participation in the development of education policy after armed conflict is necessary which the following example from Nepal shows:638 During the conflict in Nepal, there was Maoist pressure on schools to form child clubs aligned with their interests. But some child club members refused. They could do this because of the leadership skills and expressive capacities that they had acquired through the child club. They could think about right and wrong, about what their duty was, and about what they wanted. They could express their views. (Local NGO activist, Nepal)

However the participation of children and youth and taking their views into account are also controversial in environments that are autocratic, centralized, top-down, and where information often is “closely guarded”.639 Save the Children means that children taking part in determining “how education is delivered” is a right, and that “[t]his means that information should be shared with pupils in an age-appropriate fashion, and that their opinions are elicited”.640 This can be done through children’s clubs where the rights of children can be taught, and these clubs can also serve as “new avenues for peacebuilding”, as “[p]eriods of crisis provide new opportunities for dialogue and social change”.641 In the experience of Save the Children, such children’s clubs have together with adults “advocated for respect of minority groups, negotiated with parents about allowing children

636 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21 637 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21 638 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 13 639 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21 640 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21 641 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21

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to attend school, and even negotiated with commanders about their use of child soldiers”.642 4.7.2.

Early Childhood Care and Development

Early Childhood Care and Development (ECCD) programmes are multi-sectoral encompassing health, nutrition, education and care, and work to assist in “children’s survival, growth, development and learning, covering cognitive, social, physical and emotional development from a child’s birth up to their entry into primary school”.643 The ECCD programmes are beginning to be implemented in situations of conflict and emergency, and are seen as being important components of development programmes. These programmes provide protection for children, and can play great roles in advancing the cognitive development and readiness to learn in children.644 As Save the Children states: “The earlier children –particularly the poorest and those who have lived through conflict – start on their education journey, the more successful they will be in their fi rst year of school, and the more likely they are to continue and complete school successfully.”645 Furthermore, when ECCD is being provided that means that someone is taking care of the younger children in a family, which leads to that girls in particular can go to school as they do not have to stay at home and take care of them.646 It has been shown that to offer preschool care is a successful way to get children into primary school, and going to preschool is also a way that will assist children in taking advantage of primary school.647 In Nepal as a result of children attending early childhood care and development (ECCD) centres in Siraha, enrolment into primary school increased from 57 per cent to 75 per cent, an 18 per cent increase for all children; however enrolment for girls increased from having been 39 per cent of all students to almost 50 per cent, and increased attendance and retention rates and improved test results for all improved.648 Furthermore, these centres had also been partly managed by many mothers, and as a result they 642 Save the Children, Where Peace Begins, Education’s Role in Conflict Prevention and Peacebuilding, 2008, p. 21 643 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 644 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 645 Footnote omitted, Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 646 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 647 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 648 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12

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visited the primary school more often and became engaged in the schooling of their children and began to talk more to the teachers.649 4.8.

Education for Refugees and Internally Displaced Children

For refugee children there are several challenges, legal, linguistic, social and cultural, in being able to attend school in the new host country of residence. In some countries there is a lack of schools, such as in Chad, in others there is overcrowding in the local schools such as has been the case in Côte d’Ivoire, and/or the instruction is in another language, and in some places the laws in the host-country do not allow for refugees to be enrolled in their schools such as in Kenya, Ethiopia and Thailand.650 Other challenges are high school fees and other costs related to going to school that prevent especially refugee children in urban areas from being able to attend school. In addition, often secondary schooling is not offered. Another important issue is that when refugee children have been given an education in another country, when the child returns to his/her own country, this education might not always be accepted.651 When it comes to developing education programs for refugee children, this must usually be done together with the host governments so that access for the refugee children into schools can be gained, and to get the education in the host country certified and later recognized in the country of origin.652 When putting together a curriculum for refugee children who have been regionally displaced a “cross-border approach” is necessary, as there is an increased risk for refugees to drop-out of school if access to school is limited or blocked and/or if their studies risk not being recognized in their home country because the certification of their studies is different.653 Not to be able to go to school puts refugee children and youth at a great disadvantage because if an individual cannot continue his/her education, this individual’s work opportunities in the future risk being very limited and many choose not to go back home to their countries of origin because of this problem.654

649 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 12 650 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 5 651 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 5 652 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 5 653 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 6 654 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 6

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Furthermore, in conflict-affected countries where children have been displaced and speak different languages because they come for different ethnic and linguistic groups, Save the Children argues that it is important that governments and teachers need “be encouraged and supported to increase the amount of local language teaching in primary school and gradually introduce other languages to children in a structured way. Education authorities should allocate teachers who speak a local language to an area where that language is used, and should encourage the production of materials in local languages.”655 Furthermore, “[w] hen teachers’ own level of education is low, and the language of instruction is not their language, teaching well becomes a great challenge. Teacher training should therefore also be delivered in the language that is most familiar to teachers, who can then be supported to learn and teach in other languages.”656 To provide internally displaced children with schooling is a very difficult task because governments, who bear the main responsibility to guarantee all the children within their border education, do not prioritize education for this group of children, nor does the international donor community.657 In this situation the government who is dealing with an internal conflict focuses on how to win the conflict, and as has been said earlier, the international community focuses on providing water, food and shelter. Further, in those situations where people become internally displaced in urban areas, concerns such as higher costs for education and how to provide security for the children and their teachers need to be addressed.658 In refugee camps in Guinea in West Africa for people who fled from the conflicts in Sierra Leone and Liberia, Save the Children developed an education program where the governments of Sierra Leone and Liberia were to get involved in the education of these children.659 Save the Children developed a curriculum that took into account the needs of the education standards of Sierra Leone and Liberia alike, and these governments approved of this curriculum. As a result, all the refugee children could take part in a West African exam that was regionally accredited. The Liberian Ministry of Education visited the camps, and the training the teachers had received in these camps was thus certified by the Ministry. This meant that those teachers that returned back to Liberia could with this teacher training certification continue to work right away in Liberia, and as a 655 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 21 656 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 21, emphasis Save the Children 657 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 6 658 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 6 659 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 6

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result this facilitated for both the children and the teachers to return home and continue to study or for the teachers to work. For Iraqi refugee children in Jordan, Lebanon and Syria, Save the Children has adopted a “system-strengthening approach” which means that the services that are being provided are to benefit all children living in these countries, the host governments’ and Iraqi children alike.660 About two million Iraqis have become refugees in Jordan, Lebanon or Syria since the US invasion of Iraq in 2003.661 The Iraqi refugees in these different host countries live in urban areas together with the population from the host government. It has been very difficult for the Iraqi refugees to find access to services such as education and health, and where at the same time the host governments have been extremely challenged to find a way to provide these services to them. It was in order to find a way to help the host governments provide for the needs of the Iraqi refugees that Save the Children developed the “system-strengthening approach”, which has worked especially well for the advocacy on access to education services. Save the Children together with donors and various implementing agencies coordinated their investments with regards to the different host government’s education systems, which led to a situation where these governments made their services available to all children within their borders. Save the Children emphasizes how important it is that the international relief organizations work with and through the government and the existing state structures with regards to capacity building and the developing of school curriculum and not to begin from the beginning.662 In those situations where school buildings and structures have been destroyed because of the armed conflict, it is very common that the local communities themselves initiate the rebuilding of the school system. Here Save the Children means that the international relief organizations should get the government’s approval, and at the same time work with local communities in offering school supplies, teacher training and developing the curriculum.663 In this context there is a need for the international relief organizations to provide “consumable supplies” to schools when education authorities at the local level cannot pay themselves, because otherwise there is a risk of high drop-out rates and children will not go to school if these costs are not covered.664 660 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 661 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 662 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 9 663 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 9 664 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 9

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In Jordan at kindergarten level Save the Children using the “system strengthening approach” has through renovation and the furnishing of and the provision of supplies to over 100 kindergarten classrooms made the physical environment for about 3,000 children much better.665 The children are Jordanian and Iraqi alike. These improvements led to the number of classrooms for kindergarten children rising by 20 per cent.666 Furthermore, learning about child protection and how to work with children from different backgrounds, also the Iraqi children, is part of the capacity-building approach developed by Save the Children for the teachers at the kindergartens.667 This has led to Save the Children together with the Jordan Ministry of Education having developed protection methodologies into all the kindergarten teacher training programs. Another successful approach which has led to a much higher acceptance of the Iraqi children in school by parents and the Ministry of Education is the distribution of school kits to all children in need, Iraqi and Jordanian children alike.668 In Jordan there have been growing fears about violence in schools and Save the Children is developing methodologies on education to this regard that are child-friendly and applicable to all children. Further, the result in Jordan of the system-strengthening approach has been that the importance of offering safe education of high quality has been increasingly accepted. The programs that had been created first to help the Iraqi children are helping all children and this has resulted in improvement in the whole education system.669 The Jordan Ministry of Education has been looking into in what way the methods introduced can be used within its whole education system. As Save the Children states “[w]hat started out as emergency response is now evolving into more integrated, sustainable development work”.670 4.9.

Funding for Education in Conflict-Affected Countries

“The world is not on track to achieve the UPE goals by 2015”, and while there has been much progress in the enrolment of children at the primary level around the world, still the GMR 2011 stipulates that by 2015 about 72 million children risk not being able to go to school, which is a higher number than in 2008 when 67 million 665 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 666 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 667 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 668 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 669 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7 670 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 7

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children were out of school.671 Sub-Saharan Africa has 43 per cent of the out of school children at the primary level in the world, and South and West Asia have 27 per cent out of school children. The progress to achieve the UPE goals has been slow because of persisting challenges such as inequality and high drop-out rates, and the inability to reach the most marginalized groups within the population which is one reason why countries that have made much progress still have not been able to reach the UPE goals.672 There are very high drop-out rates in some countries where children that have enrolled in primary school drop out before they have completed all levels of primary school, which hinders a country from achieving the UPE goals. Children drop out of school because of reasons such as poverty and poor education quality, and late entry into the school system at the primary level by over-age children. Every year around ten million children in sub-Saharan Africa drop out of primary school, which is a staggering number.673 This underlines that it is not enough to just enrol children in primary school in order for them to receive an education; they need to finish primary school as well in order to have had an education. High levels of gender disparity in many poor countries’ educational systems persist to such levels that the UPE will not be met by 2015 if these countries do not significantly change and re-focus their planning for education.674 The Arab states, South and West Asia and sub-Saharan Africa had the highest levels of gender disparity in 2000, and while they have made much progress, many problems still persist. For instance at primary school level, in Afghanistan 66 girls enrol for every 100 boys in Afghanistan, and 55 girls enrol for every 100 boys in Somalia. At the secondary school level, gender parity has developed unevenly, where in Chad twice as many boys than girls enrol in secondary school and three girls for every four boys enrol at the secondary level in Pakistan, while in the Arab states the enrolment of girls in secondary school is lower than it is for primary grade.675 It is the girls that are more likely to drop out from the secondary level than boys, and the GMR 2011 suggests that one way to encourage parents to let their children, especially girls, continue going to school is to offer cash transfers or school feeding programs.676 About 74 million adolescents in the world were out of school 671 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 5-6: UPE stands for Universal Primary Education. 672 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 6 673 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 6 674 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 8 675 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 8 676 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 8

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in 2008, where issues such as inequality regarding wealth, gender, ethnicity and location are factors that account for the lower attendance and completion rates in secondary education.677 The average time of schooling for young women aged 17–22 in Pakistan is five years, while it is only one year for poor rural women and nine years for wealthy urban women.678 With regards to specifically conflict-affected countries, more than 28 million children are out of school at the primary school level, which amounts to 42 per cent of all the children that are out of school worldwide.679 This group of children makes up about 24 per cent of the primary school age population in the low and lower middle income countries, and about 47 per cent of their out of school population. More children in conflict-affected countries drop out from primary school, with about 65 per cent completing primary school in the poorer conflict affected countries and 86 per cent in non-conflict affected poor countries. Furthermore, the enrolment rate for secondary school is 48 per cent in conflict-affected countries and 67 per cent in other poor countries, an almost 30 per cent difference, with girls falling far behind. In conflict-affected countries the literacy rate for youth is 79 per cent and for adults 69 per cent, while in subSaharan Africa 66 per cent of the youth are literate and 55 per cent of the adults. Armed conflict reinforces education inequality and hinders the development of education which UNESCO et al.’s Deprivation and Marginalization in Education [DME] data set has clearly shown.680 The DME data set showed for instance that in DRC the poorest 20 per cent females aged 17–22 years in the conflict affected region North Kivu, in terms of education are the most disadvantaged with 47 per cent having had fewer than two years of education, while for the most disadvantaged boys, the poorest 20 per cent of males, about 34 per cent had had fewer than two years education.681 This is in relation to the national average where about 36 per cent of the poorest 20 per cent of the females have had less than two years education, and of the poorest 20 per cent males only about 11 per cent have had less than two years education. For the richest 20 per cent of males in the conflict affected region, about 14 per cent had less than two years education, while for the richest 20 per cent of males about 2 per cent had had less than two years 677 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 6 678 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 8 679 All information in this section comes from EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 132 and .Figure 3.1 Conflict-affected countries are lagging behind in education, p. 133 680 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 134 681 All information in this section is taken from Figure 3.2: Violent conflicts increase inequalities in education, EFA, Global Monitoring Report, 2011, The hidden crisis: Armed conflict and education, UNESCO, p. 135

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education. In North Kivu about 32 per cent of all the 17–22 years old have had less than two years education, compared to the national average of about 15 per cent. 4.9.1.

Humanitarian Aid Delivery For Education in Conflict-Affected Countries Education is a forgotten sector within an under-resourced humanitarian aid system. It is the least visible and most neglected feature of the humanitarian aid landscape.682

The delivery of humanitarian aid to conflict-affected countries has been “highly unequal, volatile and poorly coordinated”, and in the context of the desire for efficient aid delivery donors prioritize issues like country ownership, macroeconomic stability and good governance of a given aid recipient country, capacities that not many conflict-affected countries can live up to.683 Conflict-affected countries received three-quarters of all humanitarian aid in 2007–2008, of which two-fift hs went to five countries, with Sudan receiving the most, then Ethiopia, Afghanistan, Iraq and Somalia.684 Humanitarian aid is not just short-term but is provided to many conflict-affected countries during a period of several years: “more than half of humanitarian aid goes to countries where it has represented at least 10 per cent of total aid for at least nine years”.685 Furthermore the aid response significantly differs from situation to situation with not the real needs guiding the response, but where generally emergencies causing large numbers of loss of life like the earthquake in January 2010 in Haiti receive much higher amounts of aid for a shorter period of time, in contrast to long-term conflicts such as in DRC. The team of EFA GMR has found that Iraq receives 30 times more aid for education through UNHCR to displaced children than Pakistan and that Sudan receives 10 times more than Pakistan.686 As the GMR 2011 reports “education is chronically underfunded in conflict situations,” which is reflected in that education only receives 2 per cent of the total humanitarian aid.687 One issue is that education receives low priority in 682 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 201 683 EFA, Global Monitoring Report, 2010, Reaching the Marginalized, UNESCO, p. 240 684 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 201 685 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 202 686 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 202 and Figure 4.3 Education spending on displaced populations varies significantly between countries, p. 203 687 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 202, Figure 4.4: Education’s double disadvantage in humanitarian

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humanitarian assistance assessments, and aid agencies not requesting enough money for this area leads to a situation where the funding received does not meet the actual needs.688 For instance in the consolidated appeals requests, funding for education in 2009 resulted in the Occupied Palestinian Territory receiving 3 per cent for education of all funding, Pakistan 2 per cent, DRC 1 per cent and Chad 1 per cent.689 Of all aid allocated to education in the period of 2006–2007, conflict-affected poor countries received a little less than one-fift h of all the aid allocated to education and one-quarter of the aid allocated to basic education.690 For the conflictaffected countries the financing gap for basic education is about USD 7 billion which accounts for 41 per cent of the total gap for low-income countries which needs to be seen in the context that for 2006–2007 only USD 1.2 billion was allocated for these countries for basic education.691 For instance in 2007 aid to education in DRC accounted for just 1 per cent, USD 5 million, of the total humanitarian aid allocated, while the minimum requirement for education as established in the 2007 humanitarian action plan was set at USD 27 million.692 Instead the focus has been on short-term food and emergency nutrition programs. 4.9.1.1.

Funding Channels of Humanitarian Assistance to Education

There are several avenues to raise and distribute funding for humanitarian aid and education including flash appeals, consolidated appeals, pooled funds and fundraising by UN agencies such as UNHCR and UNICEF.693 Directly following a disaster a flash appeal is launched intended most of the time for a period of three to six months, and consolidated appeals are “the single largest tools for raising humanitarian aid” mostly involving longer-term complex emergencies like DRC and Somalia.694 In general about 71 per cent of the funding requests are met by humanitarian appeals, but “education accounts for one of the lowest request

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690 691 692 693 694

aid: a small share of requests and the smallest share of requests that get funded, p. 204 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 202, Box 4.5: Country-level humanitarian appeals for education account for a small share of funding, p. 205 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, Box 4.5: Country-level humanitarian appeals for education account for a small share of funding, p. 205 EFA, Global Monitoring Report, 2010, Reaching the Marginalized, UNESCO, p. 240 EFA, Global Monitoring Report, 2010, Reaching the Marginalized, UNESCO, p. 240 EFA, Global Monitoring Report, 2010, Reaching the Marginalized, UNESCO, p. 242 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 203, Box 4.4: Tracking aid through the humanitarian maze. EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 203, Box 4.4: Tracking aid through the humanitarian maze.

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levels, and the sector faces the biggest shortfall in terms of the share of requests that are funded”.695All the flash appeals for 2009 included education; however of all the funds received, education got 4 per cent, and while 13 out of 15 consolidated appeals for 2009 included education, funding was only forthcoming in 38 per cent of the appeals for education.696 CERF is the main UN humanitarian pooled fund; however in 2009 only 13 of 51 countries that received CERF funding included funding for education in 2009, and since 2006 just 1.3 per cent of all its allocated resources has gone to education.697 Eighteen per cent of UNICEF’s humanitarian aid requests in 2010 of about USD 1.2 billion went to education.698 It is 23 OECD countries that account for about 70 per cent of the funding for the global humanitarian aid funds, and while most do not prioritize education, a few countries make provisions for education in their humanitarian aid policy documents including Canada, Denmark, Japan, Norway and Sweden.699 In 2008–2009 education amounted to more than 3 per cent of the humanitarian aid allocated by Denmark, Japan and Spain. Instead of focusing on the real needs of the conflict-affected population, the humanitarian financial requests by the various actors are mainly concerned with the respective actor’s own capacity to carry out a project or program, as well as what they expect to receive from donors, and as a result their requests for funding are mainly to cover “narrowly defined, small-scale projects” such as school feeding.700 Another issue is when donors change their priorities as in DRC where the government and several donors mean that the country and the conflict-affected areas are in a “post-conflict reconstruction phase”, which is influencing the level of funding for projects as they are decreasing and this includes potentially fund-

695 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 204, Figure 4.4: Education’s double disadvantage in humanitarian aid: a small share of requests and the smallest share of requests that get funded, p. 204 696 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 204-205 697 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 205 698 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 205 699 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 204: The Swedish International Development Cooperation Agency, SIDA, has created “A Policy for Development Cooperation in the Education Sector (April 2001)“ which the Reference Paper “Education in Situations of Emergency, Conflict, and Post-Conflict” (April 2002) is supplementing, and “The Guidelines for Humanitarian Assistance in the Education Sector” November 2002. 700 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 206

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ing for schools financed through Save the Children in North Kivu.701 This is a result of donors not having a long-term perspective and only thinking in the context of humanitarian aid, as the donors have not provided for long-term financing of these schools. The UNHCR has to operate within an annual cycle of funding in the context that the average duration of refugee displacement is ten years, which has prevented long-term planning for the organization.702 The GMR 2011 states that “[i]n many cases education requests vastly understate the financing required because the underlying planning process is supply driven”, and gives DRC as an example which the GMR believes demonstrates the rule for how the different actors conduct their needs assessments.703 The financial request for education in the 2010 Humanitarian Action Plan for DRC was USD 25 million, of which about 50 per cent was for North and South Kivu in the context that together they host an IDP population of 1.3 million people. OCHA explained that the situation was “catastrophically bad and nothing seems to indicate that this is likely to improve in 2010”; however the Humanitarian Action Plan did not provide specific time-bound targets or a realistic needs assessment.704 GMR means that the request for USD 13 million for education in both North and South Kivu is “a drop in the ocean”, as only one-third of all children have access to primary school in North Kivu, while many IDP parents cannot pay the school fees to enrol their children in school or the classrooms are extremely overcrowded. With regards to the Global Education Cluster, since education has not been considered to be lifesaving and thus not a humanitarian priority, the cluster has raised the visibility of education in conflict affected countries and given this sector a voice at the table, but “there is little evidence that the education cluster is significantly increasing humanitarian aid for the sector”.705 There is a need to transform several of the practices involved in the way the international aid community delivers assistance to conflict-affected countries, which the OECD’s Principles for Good International Engagement in Fragile States and Situations (OECD-DAC of 2007) provide guidance for.706 The issue for 701 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 209, Box 4.6: The perils of humanitarian aid in the Democratic Republic of the Congo 702 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 209 703 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 206 704 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 206 705 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 204 706 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 238

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several donors is how to create new practices from these principles. While, each country requires its own arrangements, the Global Monitoring Report 2011 suggested reform of five priority areas concerning the deliverance of international aid to education that apply to all conflict-affected countries which includes focusing on the role of education in peace building and state-building, operating across the humanitarian-development divide, making the FTI an effective global fund for conflict-affected states, increasing FTI funding and building on national pooled funding arrangements.707 Importantly not enough attention has been given to the role that education can play in the phases of early recovery and state-building, as several donors focus on issues like constitutional reform, elections and security, and as GMR 2011 states, “[t]oo often, old patterns of social exclusion rapidly resurface in new state-building programmes. Donors themselves often contribute to the problem, with uneven provision of aid reinforcing disparities between regions and social groups.”708 This is the weakest area for donors in their observance of the Principles framework, as recognized by the OECD. The GMR 2011 goes as far as to state that “[c]urrent aid practices weaken recovery prospects in education and other areas”, meaning that funding for early recovery needs to include education and that donors must begin to acknowledge that education has a part in contributing to early peace dividends.709 4.9.1.2.

The United Nations Central Emergency Response Fund (CERF) CERF was created by all nations, for all potential victims of disasters. It represents a real chance to provide predictable and equitable funding to those affected by natural disasters and other humanitarian emergencies.710

The United Nations Central Emergency Response Fund (CERF) was established in 2005 by the UN General Assembly as a humanitarian fund to respond to the immediate aftermath of emergencies (including armed conflict), with special consideration to the situation of women, children and minority groups.711 The purpose of CERF is “to promote early action and response to reduce loss of life, 707 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 238-239 708 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 238-239 709 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 239 710 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx 711 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx, and Principle 5 of the Central Emergency Response Fund Guidelines, CERF Principles

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enhance response to time-critical requirements and strengthen core elements of humanitarian response in underfunded crises”.712 The CERF is set up with one grant facility which is expected to have up to USD 450 million at its disposal and one loan facility which has USD 50 million available, where the grant component is funded by voluntary contributions from governments, private sectors organizations, corporations, private businesses, foundations, NGOs, and individuals.713 The grant component of CERF is set up in two parts, for rapid response and for under-funded emergencies. The loan facility was established in 1991 ”as the Central Emergency Revolving Fund”, and CERF was created in order to improve the Central Emergency Revolving Fund enabling also the inclusion of the grant component with voluntary contributions, while the Revolving Fund with the loan facility is part of CERF but managed separately.714 It is the UN Emergency Relief Coordinator (ERC), who is also the Head of the Office for the Coordination of Humanitarian Affairs (OCHA), that manages CERF, and the Fund is aimed at providing a complement to the humanitarian funding mechanisms available, and is a mechanism for an immediate UN response to natural disasters and armed conflicts ”by making funding available for live-saving activities to eligible agencies such as UN and its funds, programmes, and specialized agencies and the international Organization for Migration (IOM)”.715 All projects that are funded by CERF need to follow the CERF Principles that form part of the CERF Guidelines, and Principle 1 especially identifies children and women as disproportionately affected by emergencies, stipulating that with regards to women and girls special concern should be paid.716 Principle 1 states that the basis of the implementation of CERF-funded projects is the principles included in the Convention on the Elimination of All Forms of Discrimination against Women of 1979, the Convention of the Rights of the Child, the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography of 2000, the Optional Protocol on the Involvement of Children in Armed Conflict of 2000 and relevant resolutions such as Resolution 1325 on Women, Peace and Security of 2000.717 Principle 1 also specifically stipulates that “CERF-funded projects should ensure the application of gender equity principles and give due consideration to the different needs of women, girls, boys and men”. 712 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx 713 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx 714 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx 715 CERF, What is CERF?, p. 1 of 2, http//ochaline.un.org/cerf/WhatistheCERF/ tabid/3534/language/en-US/Default.aspx 716 CERF, Central Emergency Response Fund Guidelines, CERF Principles 717 CERF, Central Emergency Response Fund Guidelines, CERF Principles

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CERF’s guidelines were revised in 2008 to include education as a sector, and this entailed that funding through CERF for education in emergencies has increased with provisions for such funding for ten countries in 2008 compared with two countries in 2006.718 From March 2006 to February 2011, 79 countries had received emergency funding from CERF, with DRC having received the most funding of all with about USD 191,168,195 which made up 10.23 per cent of CERF’s total funding.719 Many of these countries are either in a post-conflict situation or in a continuous conflict situation and/or have or are experiencing in addition a natural disaster. Sudan (2), Somalia (3), Kenya (4), Ethiopia (5) and Pakistan (6) were the following countries in that order that had received the most funding from CERF by that date and other countries that had received funding included Sri Lanka (7), Haiti (8), Afghanistan (9), Chad (12), Myanmar (13), Yemen (15), Côte d’Ivoire (16), the occupied territory Palestine (18), Central African Republic (19), Burundi (21), Iraq (22), Nepal (23), Colombia (24), Philippines (28), Mozambique (29), Uganda (30), Lebanon (36), Angola (37), Guatemala (40), Peru (41), Liberia (42), Timor-Leste (52), Georgia (57), El Salvador (67), Algeria (70) and Rwanda (78).720 Here is given the case of Yemen that had received funding form CERF and which illustrates the combination of political turmoil, poverty, extremism, armed conflict and natural disasters, and the huge needs of the population that follow emergencies as well as the fact that many people have not been able to get any assistance as neither the government or the different humanitarian actors have been able to reach everybody because of lack of access and insecurity. The information in this example shows the situation before the current political turmoil in Yemen and the Middle East as of May 2011. 4.9.1.2.1. CERF Grants to Yemen As a response to the continuously challenging humanitarian situation in Yemen which is due to underdevelopment, economic shocks, political strife, repeated armed conflict, natural disasters and an influx of refugees, the 2010 Yemen Humanitarian Response Plan (YHRP) was established on 30 November 2009 with the aim to provide assistance to 1.4 million beneficiaries.721 As the Resident/ 718 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 13 719 CERF Figures, Countries receiving CERF Funds since its launch on 9 March 2006, Total CERF Funding by Country-Summary (02-03-2006 to 02/02/2011) 720 CERF Figures, Countries receiving CERF Funds since its launch on 9 March 2006, Total CERF Funding by Country-Summary (02-03-2006 to 02/02/2011): The countries are listed in the order that they have received the most funding from number 1 with the most funding down to number 79 (Armenia) with the least funding. 721 CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for

Providing Education in Armed Conflict

Humanitarian Coordinator for Yemen reported the main humanitarian needs in the country are the consequences from: “(i) the armed conflict, which has generated population displacement and disrupted livelihoods and social services in the north; (ii) continuous arrivals of refugees, many of whom are temporarily resettled along the southern coast; (iii) last years’ inadequate rainfall and global food and financial crises, which have led to high levels of food insecurity in various parts of the country; and (iv) natural disasters, such as the floods, which affected Wadi Hadramout in October 2008”.722 In 2009, two applications for CERF funds were made to provide humanitarian assistance to the conflict-affected populations in the northern part of Yemen in Sa’ada where by August 2009 six rounds of fighting had broken out.723 One application was made according to the Underfunded Emergencies (UFE) component and the other according to the Rapid Response (RR) component.724 The first application was made in April 2009 under the Underfunded Emergencies (UFE) component, with funds becoming available in May 2009, and the funds went to help the internally displaced population that was still displaced and to people who had been able to return home but whose homes had been destroyed. In this round CERF funds went to the provision of basic medication to under-fives, procurement of education supplies, effective child protection activities and distribution of non-food items.725 In July 2009 the second CERF application was handed in as a response to that there was not enough additional funding to the IDPs and that there were signs of renewed conflict, and this application was made under the Rapid Response component.726 The funding was made available in August 2009, which was right after the sixth round of fighting had begun and the funds

the reporting period 1 January 2009 - 31 December 2009, p. 2 722 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2 723 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2 724 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2 725 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2 726 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2

the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for

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were distributed to ”agencies in Yemen to respond to an increase in internally displaced people and a deteriorating security situation”.727 In April 2009 a CERF application to help flood-affected populations in the South-Eastern part of Yemen was made, to help the population in especially the Hadramout valley where the floods and rains affected about 650,000 of the population (which was 50 per cent of the total population in the Hadramout valley), and as a result of that merely 40 per cent of a Flash Appeal initiated in November 2008 had been funded.728 Furthermore, UNDP in Yemen received funds from the CERF in November 2009 in order to strengthen security measures as humanitarian workers had been threatened and in the conflict-affected areas in the northern parts of the country vehicles belonging to the UN and NGOs had been shot at and hijacked.729 A cluster approach was used as a response in both the conflict-affected areas and the flood-affected areas, and the funding from CERF was successfully used for among other things to support civil society (university students, graduates and members of societies for women), to survey and counsel female IDPs in four conflict-affected governorates, and direct assistance for repairing schools and community buildings hosting IDPs and community oriented reconstruction projects.730 The sector/clusters were on health, nutrition, WASH, protection-human rights-rule of law, education, shelter and food. The humanitarian assistance that was used in 2009 for the northern conflict-affected areas of the country was given only to the IDP population (in secure and reachable areas) and was mainly used for emergency education, food, health, shelter, NFIs, protection, water, sanitation and hygiene.731 It is important to note that the humanitarian funding available before the sixth round of fighting began in August 2009 came mainly from CERF. However many people affected by the conflict did not receive any assistance at all from either the government or the different humanitarian actors because of lack of access and insecurity. Among other things difficulties in 727 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2 728 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 2-3 729 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 3 730 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 4 731 CERF, Annual Report of the Resident/Humanitarian Coordinator on CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha the reporting period 1 January 2009 - 31 December 2009, p. 4

the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for the Use of Mehta, for

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registration of IDPs and management of camps, as well as difficulties for the government to identify sites where camps for the IDPs would be located, resulted in hampered efforts by the humanitarian actors and the government.732 Specifically regarding children, the CERF funds used for instance for the sector/cluster “Protection, Human Rights, Rule of Law” were titled “Child Protection & HIV Prevention in Emergency”, and this project was targeted to cover 40,000 children.733 Among other things the cluster was able to implement a 12-day training-of-trainers on community-based PSS and child protection for 35 social workers and school counsellors coming from the Sa’ada, Haradh and Amran governorates, establish 10 child-friendly functioning schools/youth centres in all affected governorates (benefiting 27.000 children and youth), have 3,000 children participate in storytelling sessions in the camps, have 10,000 children receive individual recreational kits and have 270 officers (Central Security, Haradh Security, coast guards and female police) complete three workshops on child protection and the combating of child trafficking in the context of the armed conflict.734 In this context “the CERF contribution enabled UNICEF to initiate essential child protection interventions within a short period of time (in an effective and efficient way), putting child protection at the top of the humanitarian agenda”.735 In terms of gender equity (in accordance with Principle 1 of the CERF Principles), the staff making up the Protection Cluster in Yemen are mostly female (more than 50 per cent) and they come from the affected communities. Furthermore, in all child protection interventions, a gender perspective has been implemented in particular concerning culturally sensitive issues like gender-based violence and child marriages.736 In the Education Sector/Cluster, the target population was 4,000 schoolaged IDP children in order for them to have access to quality basic education in local schools or temporary learning spaces. The results were that it was possible to have 75 tents procured of which 41 were used as temporary learning spaces 732 CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 5 733 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 734 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 735 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 736 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8

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and for the ECD programme.737 Furthermore, about 4,000 school-aged children registered in the Mazrak camps, and about 50 additional teachers were assigned to teach in the temporary learning spaces in the IDP camps and in IDP integrated schools in host communities in Haradh.738 Also it was possible to reach more than 100 pre-school aged children with the ECD Programme in Mazrak Camp, about 120 women and girls in Sa’ada completed a literacy training course and school and recreation supplies have been procured and either pre-positioned or distributed to children and teachers.739 As was reported, “CERF funds were primarily invested in procurement of emergency education supplies, which enabled activities to begin promptly, allowing affected children to have access to education opportunities as the school year began”.740 Furthermore with regards to gender parity, “the ‘back-to-school initiative in IDP camps improved gender parity in the school enrolment’, ‘latrines and hygiene facilities at target schools have been improved with a focus on girls,’ and in Sa’ada, literacy classes and awareness raising activities on the rights of children and women have contributed to the empowerment of women”.741 4.9.1.2.2. Evaluation of UNICEF’s Response to the Sa’ada Conflict in Northern Yemen Interaction in Development and GPPI conducted an evaluation between July and August 2010 of how UNICEF had acted and addressed the emergency in Northern Yemen of the outbreak of the sixth rounds of fighting in 2009 in Sa’ada.742

737 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 738 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 739 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 740 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 741 See Results Table in CERF, Annual Report of the Resident/Humanitarian Coordinator on the Use of CERF Grants, Yemen, Resident /Humanitarian Coordinator Pratibha Mehta, for the reporting period 1 January 2009 - 31 December 2009, p. 8 742 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, p. 6

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The results of the evaluation showed that UNICEF had made several positive contributions during the emergency response including:743 –

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–

UNICEF was one of the first organizations active in implementing relief activities on the ground and several of its staff members demonstrated an impressive level of commitment, initially including the direct implementation of relief activities in the absence of experienced implementing partners. The country team showed a good capacity to identify problems and address them in the two main IDP camps in Haradh. This capacity to learn was supported by the existence of several effective institutional processes for identifying lessons. UNICEF and its implementing partners achieved good coverage of services in most of its areas of responsibility in Al-Mazrak camps 1 and 3 in Haradh and beneficiaries in these camps described interventions as largely appropriate (if not always sufficient) to their needs. Several of UNICEF’s interventions had a good link to recovery and development, including for example the piped water system serving IDPs as well as host communities, the newly introduced system of water quality control and interventions educating and building the capacity of IDPs and local partner organizations.

The evaluation found that UNICEF had several unresolved challenges that needed to be addressed:744 –

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UNICEF was ill-prepared for the emergency in Northern Yemen, currently has no active contingency plans and, like other organizations in Yemen, lacks the necessary data and analysis for improving preparedness and longer-term planning. The current response focuses mainly on two camps in Haradh, while services for IDPs outside those camps, for host communities and in other governorates remain sketchy. According to UNHCR estimates, however, less than 17% of IDPs currently live in camps. Moreover, there are gaps in humanitarian response relating to landmines, child soldiers, education (above grade six) and the special needs of some groups. Despite an initially timely response, UNICEF’s later activities were often delayed and some of the materials used, especially large tents used for educational activities, are not appropriate for the climatic conditions in Northern Yemen.

743 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, p. 6 744 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, p. 7

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UNICEF’s country office largely operates in “development mode”, leading to the overburdening of regular staff as well as processes, structures and competencies that are not adapted to the needs of an emergency situation. Coordination gaps persist despite progress in this area and UNICEF’s work through local implementing partners faces quality problems.

Taking into consideration that there is a high risk for the recurrence of conflict another finding was that the “current contingency planning for accelerating return of IDP populations or, alternatively, a 7th war in Sa’ada is insufficient”.745 Also, in terms of timeliness, the evaluation found that while UNICEF was one of the first organizations on the ground, the frequent delays undermined its credibility.746 Furthermore, it was confirmed that the IDP population in the main camps in Haradh received “excellent coverage for water and relatively good coverage for other services”; those IDPs and host communities that were not part of a IDP camp were only provided very limited support or none at all.747 Furthermore it was found that “[t]hematic gaps related to UNICEF’s mandate include interventions relating to child soldiers, education beyond grade six, energy sources, WASH facilities in learning environments and child-friendly spaces, and genderbased violence”.748 The “general thematic gaps include IDP registration, landmines, early recovery, Qat consumption and smuggling, polygamy, early marriage and family planning, vector control, skin diseases, follow-up for psychiatric cases and some IDP camp design issues”.749 Especially not enough consideration was given to groups with special needs, like the IDPs that did not have any identification cards, large households, female-headed households, people with disabilities and marginalized groups.750 As it was shown in the CERF evaluation,

745 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 4., p. 8 746 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 5., p. 8 747 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 6-7., p. 9 748 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 8., p. 9 749 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 9., p. 9 750 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 10., p. 9

Providing Education in Armed Conflict

the situation has been very insecure for humanitarian personnel requiring more protection for them, and the evaluation of UNICEF’s response found that the “risks associated with humanitarian interventions are not systematically assessed and mitigated”.751 One of the priority recommendations that the evaluation made was that in order to reduce social conflicts, also projects like the creation of water systems and the rehabilitation and/or expansion of schools that included the host communities should be increased.752 Some other priority recommendations concerned that large school tents would be replaced by simple and pre-fabricated semi-permanent structures, and that it would be possible to deconstruct these structures if the return process increased, and could be used for the expansion of existing school structures among other things.753 Furthermore it was recommended that for instance latrines that were located next to child friendly spaces were working, had water and hand-washing facilities. In terms of the emergency response the UNICEF has a strong development programme focus in Yemen, but its structures and processes were not adequately adapted to the emergency situation, and therefore some of the priority recommendations included that the UNICEF at the country level would recruit a permanent emergency officer that would “coordinate the response as well as needs assessments and preparedness, support proposal writing, follow-up supplies etc”, decentralising the emergency decision-making “to enable rapid response and effective coordination at field-level”, as well as that its emergency officers need to be able to speak Arabic (one finding was that it became a burden for the country team to have non-Arabic short-term personnel recruited).754 With regard to donors one of the main findings was that the “donors demand more joint UN proposals, an overall lower level of requests, a clearer distinction between development and humanitarian programmes and a higher quality of proposals and reporting.”755 One priority recommendation addressing this concern was that 751

752

753

754

755

Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Main finding 11., p. 9 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Priority recommendations, p. 9 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Priority recommendations, p. 9 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Connectedness, Priority recommendations, p. 11: and Main fi nding 2, Preparedness, Surge Capacity and Learning, p. 8 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommen-

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between clusters and donors the UNICEF would set up strategic links, and that joint funding proposals in all areas be put together. Furthermore, representatives of the UNICEF had “brushed things up” in communications with the media and public relations, even as UNICEF also had provided important information, and one priority recommendation addressing this issue was for UNICEF to “present visitors with a real, not an embellished picture of the situation and the response effort. Minimize the administrative effort of organizing visits by simplifying the related administrative procedures.”756 The needs of the children in Yemen have only grown due to the political upheaval from the spring of 2011, which will not be addressed here as these events have taken place after the writing of this book. 4.9.1.3.

The United Nations Inter-Agency Standing Committee (IASC)

The Inter-Agency Standing Committee (IASC), established in 1992, is the primary mechanism for inter-agency coordination of humanitarian assistance among UN and non UN humanitarian actors, and is a forum for coordination, policy development and decision-making among these actors.757 Responding to growing demands and an awareness that the huge humanitarian undertakings involving multiple UN agencies, international organizations, and international and national NGOs needed a coordinated response in order to be able to address emergencies and conflict related or natural disasters in an effective manner, the UN General Assembly in its resolution 46/182 on “Strengthening of the coordination of humanitarian emergency assistance of the United Nations” of 1991 stipulated that the UN Secretary-General appoint for the first time an Emergency Relief Coordinator, and that an Inter-Agency Standing Committee would be established.758 The General Assembly in resolution 46/182 stipulated that a Central Emergency Revolving Fund be established by the Secretary-General “as a cashflow mechanism” to provide a system-wide response to all the organizations within the system to ensure that adequate resources in the initial stage of an

dations, Relations to Partners, Donors and the Media, Main fi nding 20 and Priority recommendations, p. 12 756 Steets, J., and Dubai, K., Real-Time Evaluation of UNICEF’s Response to the Sa’ada Conflict in Yemen, 11 October 2010, Table 1: Main findings and priority recommendations, Relations to Partners, Donors and the Media, Main fi nding 21, and Priority recommendations p. 12-13 757 IASC-Inter-Agency Standing Committee, About the Inter-Agency Standing Committee, p. 1 of 3, accessed February 4, 2011 758 United Nations, General Assembly, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, A/RES/46/182, 78th plenary meeting, 19 December 1991

Providing Education in Armed Conflict

emergency be provided in a rapid and coordinated manner.759 Furthermore, also according to the resolution, the Secretary-General was to make sure that a Consolidated Appeal be launched no longer than a week from the outbreak of those emergencies for which a coordinated response was needed. Finally, a central register of stand-by capacities including expert personnel, relief supplies, equipment and services which governments, international organizations, and NGOs were to make available at a short notice to the UN when needed was to be established. In addition the link between emergency and long-term development was underlined, in that the resolution stipulated that emergency assistance was to support recovery and long-term development, and that in this context the various UN development organizations were to be “involved at an early stage and should collaborate closely with those responsible for emergency relief and recovery”. Furthermore, one of the guiding principles in this resolution confirmed that it is a given government that has the primary responsibility to address emergencies, stipulating that “each state has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence, the affected State has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory.”760 Subsequently, General Assembly resolution 48/57 ”Strengthening of the coordination of humanitarian emergency assistance of the United Nations” of 1993 reaffirmed resolution 46/182.761 The IASC is to “[u]nder the leadership of the Emergency Relief Coordinator, the IASC develops humanitarian policies, agrees on a clear division of responsibility for the various aspects of humanitarian assistance, identifies and addresses gaps in response, and advocates for effective application of humanitarian principles. Together with Executive Committee for Humanitarian Affairs (ECHA), the IASC forms the key strategic coordination mechanism among major humanitarian actors.”762 The primary objectives of the IASC are:763

759 United Nations, General Assembly, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, A/RES/46/182, 78th plenary meeting, 19 December 1991 760 United Nations, General Assembly, Strengthening of the coordination of humanitarian emergency assistance of the United Nations, A/RES/46/182, 78th plenary meeting, 19 December 1991 761 General Assembly resolution 48/57 ‘Strengthening of the coordination of humanitarian emergency assistance of the United Nations’, A/RES/48/57, 78th plenary meeting 14 December 1993 762 IASC-Inter-Agency Standing Committee, About the Inter-Agency Standing Committee, p. 1 of 3, accessed February 4, 2011 763 IASC-Inter-Agency Standing Committee, About the Inter-Agency Standing Committee, p. 2 of 3, accessed February 4, 2011

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to develop and agree on system-wide humanitarian policies; to allocate responsibilities among agencies in humanitarian programmes; to develop and agree on a common ethical framework for all humanitarian activities; to advocate for common humanitarian principles to parties outside the IASC; to identify areas where gaps in mandates or lack of operational capacity exist; to resolve disputes or disagreements about and between humanitarian agencies on system-wide humanitarian issues.

The key principles of the IASC are:764 –

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4.9.1.3.1.

Overall Objective: The ultimate objective of any decision should be that of improved delivery of humanitarian assistance to affected populations; Respect for Mandates: The decisions of the IASC will not compromise members with respect to their own mandates; Ownership: All members have an equal ownership of the Committee and its subsidiary bodies; Subsidiarity: Decisions will be taken at the lowest appropriate level; Impartiality of the Secretariat: The IASC is serviced by a Secretariat, which does not represent the interests of any member. The IASC’s Cluster Approach to Strengthen Humanitarian Response

The IASC developed a cluster approach in 2005 in order to strengthen humanitarian response at the international and national levels to more efficiently be able to respond to emergencies in a coordinated manner.765 The IASC’s “Operational Guidance on Designating Sector/Cluster Leads in Major New Emergencies” stipulates that “[t]he aim of the cluster approach is to strengthen humanitarian response by ensuring high standards of predictability, accountability and partnership in all sectors or areas of activity”, and that for all major new emergencies a cluster approach is to be used as agreed to by the IASC.766 The IASC’s “Operational Guidance” defines “a major new emergency” “as any situation where humanitarian needs are of a sufficiently large scale and complexity that significant exter-

764 IASC-Inter-Agency Standing Committee, About the Inter-Agency Standing Committee, p. 2 of 3, accessed February 4, 2011 765 Inter-Agency Standing Committee (IASC), Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response, 24 November 2006, p. 1 766 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011

Providing Education in Armed Conflict

nal assistance and resources are required, and where a multi-sectoral response is needed with the engagement of a wide range of international actors”.767 There are 11 global clusters assigned by IASC and these areas are agriculture, camp coordination/management, early recovery, education, emergency shelter, emergency telecommunications, health, logistics, nutrition, protection and water/sanitation/hygiene.768 For each cluster a “cluster lead” is to be appointed, many times co-chaired by two different humanitarian organizations, and a “cluster lead” is defined as “an agency/organization that formally commits to take on a leadership role within the international humanitarian community in a particular sector/area of activity, to ensure adequate response and high standards of predictability, accountability and partnership. A ‘cluster lead’ takes on the commitment to act as the ‘provider of last resort’ in that particular sector/area of activity, where this is necessary.”769 The cluster/sector lead is always an agency and never a person, and can be any IASC member and not necessarily a UN agency, and that is why the agency’s/organization’s Country Director or Representative appointed as the lead of a cluster or sector at the country level is to bear the ultimate responsibility for the efficient implementation of the activities.770 The cluster/sector leads have the responsibility to make sure that the agreed priority cross-cutting issues like age, diversity, environment, gender, HIV/AIDS and human rights into all clusters/sectors are taken into account and integrated. Within each cluster/sector a focal point is to be designated by the leads for Early Recovery and for the priority cross-cutting issues that have been agreed upon to guarantee the inclusion of these issues into cluster/sector work plans and appeals.771 The different humanitarian actors that join a cluster/sector and “who participate in the development of common humanitarian action plans are expected to be proactive partners in assessing needs, developing strategies and plans for the sector, and implementing agreed priority activities. Provisions should also be made in sectoral groups for those humani-

767 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011 768 OneResponse, Global Clusters, http://oneresponse.info/GLOBALCLUSTERS/Pages/default.aspx, accessed March 10, 2011 769 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, p.1, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011 770 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, p. 1, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011 771 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, p. 1, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011

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tarian actors who may wish to participate as observers, mainly for informationsharing purposes.”772 The cluster approach’s “key concept” is “leadership with accountability among humanitarian actors. Cluster leads at the global level have been designated by the IASC for sectors or area of activity which lacked predictable leadership in emergencies, where there was a considered need to strengthen leadership and partnership with other humanitarian actors, or where there were clearly identified capacity gaps.”773 Referring to the guiding principle that it is the government that has the primary responsibility to address emergencies, the IASC “Operational Guidance” also established that it is the cluster/sector leads that are responsible “that humanitarian actors build on local capabilities and maintain appropriate links with Government and local authorities, State institutions, civil society and other stakeholders”.774 4.9.1.3.2. The Global Education Cluster The IASC’s Global Education Cluster was established in 2006 to ensure that in an emergency situation the humanitarian response would include assistance to education from the very beginning, and to improve such a response by seeking to establish clear leadership, predictability, accountability and partnership.775 It is UNICEF and Save the Children that co-led the Global Education Cluster, and they signed a Memorandum of Understanding in November 2007 to formalize their working relationship, and this is the only cluster that the UN and an NGO is co-leading globally.776 Year 2008 was the first year that the Global Education Cluster (GEC) began to work properly, and one objective is to be able to raise more funding for education in emergencies through this cluster approach and its

772 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, p. 2, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011 773 Annex I to the Memorandum of Understanding between UNICEF and the International Save the Children Alliance, Leadership of the Global Education Cluster, Final 30.10.7, p. 2 774 Inter-Agency Standing Committee (IASC), Operational guidance on designating sector/cluster leads in major new emergencies, p. 1, www.ineesite.org/uploads/documents/store/doc_I_IASCclusterNew.pdf, accessed February 4, 2011 775 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 36: and Annex I to the Memorandum of Understanding between UNICEF and the International Save the Children Alliance, Leadership of the Global Education Cluster, Final 30.10.7, p. 1 776 One Response, Education Cluster, http://oneresponse.info/GlobalClusters/Education/Pages/default.aspx, accessed 2/26/2011

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subsequent application in emergencies.777 But by 2008 the Education Cluster had only received 27 per cent funding from four donors, Denmark, Ireland, Norway and Sweden.778 This lack of funding has impeded the Education Cluster’s preparedness, coordination and surge-capacity plans. By February 2011 an Education Cluster had been established in 42 countries (out of 45 countries that had implemented the Cluster approach) of which 38 were active clusters and 4 inactive.779 Furthermore there were six countries that had established active or inactive working groups on education in emergencies. Out of the 42 Education Clusters, UNICEF had led or co-led 41, Save the Children had co-led 26, Ministries of Education had co-led 7 and other NGOs had coled such country Education Clusters in two countries.780 There are Education Clusters established and active for complex emergencies and/or natural disaster in for instance Burundi, Ethiopia, Kenya, Somalia, CAR, Chad, DRC, Côte d’Ivoire, Afghanistan, Nepal, Pakistan, Sri Lanka, Myanmar, Timor Leste, Iraq, OPT, North Sudan, South Sudan, Yemen, Colombia and Kyrgyztan.781 For Liberia the Clusters are dormant; however there is no Education Cluster established. The main purposes of the Global Education Cluster are to:782 a.

b.

Promote increased levels of understanding of the key role of education as part of a first phase humanitarian response to all major new emergencies, subsequent phases of response and early recovery; Promote and improve on internationally recognized standards of good practice in education responses to emergencies and early recovery (including attention to priority cross-cutting issues for the education sector), and coordinate and disseminate lessons learned within and between emergency responses;

777 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 13 778 Save the Children, Delivering education for children in emergencies: a key to building block for the future, 2008, p. 14 779 At the time 45 countries had implemented the Cluster approach, OneResponse, Global Education Cluster, Country Implementation: 1 February 2011, http://oneresponse.info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011 780 OneResponse, Global Education Cluster, Country Implementation: 1 February 2011, http://oneresponse.info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011 781 OneResponse, Global Education Cluster, Country Implementation: 1 February 2011, http://oneresponse.info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011 782 Annex 1 to the Memorandum of Understanding between UNICEF and the International Save the Children Alliance Leadership of the Global Education Cluster, Final 30.10.7, 3.1, p. 3

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c.

d. e. f.

g. h.

Coordinate participating humanitarian agencies in providing a rapid and effective holistic response to education-related needs of children and young people resulting from major emergencies as they arise, in collaboration with the relevant national and local authorities; Strengthen response capacity through the global pool of specialists skilled and experienced in restoring education services in emergencies; Strengthen intervention resources through the global availability of key supplies to support rapid education responses in emergencies; Improve capacity of partner agencies to help countries build back education systems better after an emergency, in line with the progression from humanitarian response through reconstruction and on to development; Strengthen education in disaster risk reduction efforts and emergency preparedness planning of host governments; Maximise funding opportunities for emergency education work, including through coordinating and collecting proposals from all relevant agencies in the UN CAP or Flash Appeals.

The Global Education Cluster has also organized its work to include several thematic issues such as on gender, disaster risk reduction, early childhood, adolescents and youth and protection, prevention and peacebuilding.783 For instance the Education Cluster Thematic Group on Early Childhood works to find ways to mainstream at field level early childhood care and education into the country Education Clusters.784 In order to achieve this, the Thematic Group engages in advocacy to have investments increased and policies and commitments strengthened with regards to early childhood care and education.785 In addition, the Education Cluster Thematic Group works together with the INEE Early Childhood Development Task Team “to ensure that the needs of young children are systematically addressed in the work of Education Clusters” at field level.786 On behalf of the Global Education Cluster, UNESCO/IIEP and UNICEF/ CARO is to develop the “Guidance Notes for educational planners in crisis situations”, which will have the purpose of helping education planners and managers to integrate into national education strategies, policies, plans and programs, 783 OneResponse, Global Clusters, Education, http://oneresponse.info/GlobalClusters/ Education/Thematicissues/Pages/Thematic%20Issues.aspx) 784 OneResponse, Global Clusters, Education, Early Childhood, http://oneresponse. info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011 785 OneResponse, Global Clusters, Education, Early Childhood, http://oneresponse. info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011 786 OneResponse, Global Clusters, Education, Early Childhood, http://oneresponse. info/GlobalClusters/Education/Thematicissues/Pages/Thematic%20Childho..., accessed 2/26/2011

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strategies for education in emergency as well as preventive and risk reducing measures.787 Save the Children has listed the benefits of having Education Clusters established and they are:788 The overall cluster system seeks to ensure a well-coordinated and effective humanitarian response through ensuring: – high standards of predictability, accountability and partnership – a more strategic response and better prioritisation of available resources by clarifying the division of labour among agencies – a better division of the roles and responsibilities of humanitarian organisations – that each sector has a first point of call and a last-resort provider (for the government and the humanitarian coordinator/resident coordinator). The benefits of having an Education Cluster include: – improved engagement and coordination with education ministries – a clear identification of gaps in provision and therefore better geographical and sub-sectoral coverage by partners – a better-coordinated use of technical expertise and less duplication of effort – joint advocacy and mobilisation of resources – an effective monitoring system linked to the planning process – a forum for joint contingency planning, disaster risk reduction (DRR) and emergency preparedness planning – a forum to share best practices and lessons learned, to undertake joint capacity building and to harmonise approaches. Having an Education Cluster has attracted resources for education in emergency programming through being included in Common Humanitarian Action Plans (CHAP) and associated funding appeals.

4.9.1.3.2.1. The Education Cluster for Haiti After the January 2010 Earthquake As a result of the January 2010 earthquake in Haiti about 700,000 school-aged children were “directly affected”, and the Minister of Education, Joel Jean-Pierre, stated that Haiti’s education system had “totally collapsed”.789 There are estimates that about 5,000 schools were destroyed, as the Ministry of Education stated that 787 Global Education Cluster, Global Education Cluster Update, August 2010, p. 6 www. ineesite.org/uploads/documents/store/Education_Cluster_Update_August2010. pdf, Accessed February 4, 2011 788 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, Table The Benefits of a Cluster, p. 37 789 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 41; The population

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in the western part of the country about 80 per cent of the schools and in the south-eastern part of the country about 40 per cent of the schools had been “severely damaged or destroyed”.790 The education system was in disarray long before the January 2010 earthquake because of conflict, violence, natural disasters, corruption, and for instance several severe hurricanes during 2008 damaged and/or destroyed hundreds of schools, and as a whole no more than about 50 per cent of all the primary-aged children in the country actually went to school.791 The Haitian Ministry of Education had licensed about 11 per cent of the schools in total in Haiti before the January 2010 earthquake, and about 90 per cent of all schools had been private schools and over 80 per cent of all the students paid fees to go to school.792 Furthermore, about 50 per cent of the families did not have enough money to pay for the fees for school, which needs to be seen in the context that the school fees were about one quarter of an average income for a family. An Education Cluster was established for Haiti which is led by Save the Children and UNICEF together and they coordinate “the response to the earthquake”.793After the earthquake “a rapid joint needs assessment” was conducted by the Education Cluster and the Haiti Ministry of Education, and it was found that “parents are ready to send their children to school and the children are eager to return; Haitian people are seeking assurance that their buildings are structurally sound; there is an urgent need for psychosocial support to help children and teachers to cope with the trauma caused by the earthquake.”794 Furthermore, a strategy to deal with the main pressing educational needs has been worked out by the Education Cluster and the Ministry of Education, as well as for other issues when these first priority areas have been dealt with, and the priority actions encompassed:795 1.

790 791 792 793 794 795

distributing tents and learning/teaching kits for temporary learning spaces in the most affected areas and in areas with a high influx of displaced people;

in Haiti is about 9 million people, and about 200.000 people lost their lives in the earthquake and about 1 million people became homeless. Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 41 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 41 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 41 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 42 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 42 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 42

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2. 3. 4.

recruiting and training teachers; inspecting and evaluating school buildings in affected areas; implementing a nationwide psychosocial support programme in schools.

The other areas to be worked on that the Education Cluster is to assist the government with consisted of:796 1. 2. 3.

4.9.1.4.

developing the ‘Welcome to School’ strategy for enrolment of out-of-school children; identifying long-term needs of the Ministry of Education for technical assistance (infrastructure, inclusion, quality, financing); school reconstruction that ‘builds back better.’

Finding New Ways to Fund Education in CAFS

The government of the Netherlands together with UNICEF has established the Education in Emergencies and Post-Crisis Transition initiative which started in 2006 with the Netherland government providing USD 201 million for the five year global initiative which has attracted interest from other donors.797 This initiative has initiated several projects including Liberia’s Education Pooled Fund in 2008 when the UNICEF-Netherlands program gave USD 12 million and the Open Society Institute gave USD 4 million to this Fund, and the Fund “supports the Liberian government’s plan to rebuild education”.798 It is the UNICEF that manages the bank account into which the money is being put, and it is the Liberian Ministries of Education and Finance that head a management committee which makes decisions about disbursements as well as monitors expenditures.799 The Liberia Education Pooled Fund was initiated as a way to be able to directly funnel money to develop education in the country, and the Liberian Ministry of Education would then have time to build capacity for its financial management 796 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, “Total Collapse” of Haiti’s Education System, p. 42 797 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 19 798 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 19 799 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 19

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which would enable it to receive significant sums of money for the development of its education system which otherwise could take up to some years to develop.800 Through this Fund the capacity of the government has quickly improved, and after one year three projects were identified for which USD 12 million had been assigned: “the printing and distribution of the first new texts books in more than a decade reduced the textbook-to student ratio from one book for every 27 children to one book per children; 40 new schools were under construction across the country and three teacher training institutes in rural areas had been re-established”.801 Other donors have shown interest to invest in the education sector in Liberia as a result of the success of this Fund. 4.9.2.

The Inter-Agency Network for Education in Emergencies (INEE)802

The INEE is a network that was established during the 2000 Dakar Conference on Education for All; it was clear to a small group of participants that the Millennium Development Goals would not be met if the half of the 75 million out of school children living in crisis situations including armed conflicts did not receive focused attention. During the past ten years, INEE has grown to a network of over 5,000 individuals in over 135 countries. However, the INEE is not focused solely on the MDG2, since there already exists for the MDG2 a basic education coalition and a Fast Track Initiative which includes Save the Children and NGOs that focus on the MDG2. INEE focuses on education for all: safe spaces for very young children, and primary, post-primary, informal and non-formal education for everyone else. INEE is also critically concerned with the quality of education; access is the first step, however, once children and youth are in school, education must be high-quality, safe and relevant. The INEE responds to the needs of its individual members regarding education in emergencies, and has worked to develop tools on teaching, gender, inclusion, school construction (such as in the aftermath of an earthquake) and disaster risk-reduction so that actual work can be done. The INEE has looked at education and fragility, and how education impacts a state in terms of whether education makes a state more or less stable. A group of people from Ministries of Education from several African countries met in 2010 to look at different strategies as to 800 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 19 801 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 19-20 802 All information in this section on INEE comes from Lori Heninger, Director of INEE, Interview, Washington D.C., November 30, 2010 and Email, March 9, 2011

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whether education in a country has helped to reduce or exacerbate fragility. As of 2009, there has been significant interest from donor countries such as the US and the UK regarding education and security. The INEE has established two Working Groups, one on the INEE Minimum Standards, and the other on Education and Fragility. INEE’s work on the 2010 edition of the INEE Minimum Standards for Education: Preparedness, Response, Recovery included input from over 1,000 people in 52 countries. The INEE Minimum Standards Handbook is the only global tool that articulates the minimum level of educational quality and access in emergencies through to recovery. The aim of the handbook is 1) to enhance the quality of educational preparedness, response and recovery; 2) to increase access to safe and relevant learning opportunities for all learners, regardless of their age, gender or abilities; and 3) to ensure accountability and strong coordination in the provision of education in emergencies through to recovery. The INEE Minimum Standards are voluntary and serve as a best-practice guide for the members of the INEE, and among other things as a framework into which a national school curriculum can be integrated. The Working Group on Education and Fragility, as well as other mechanisms within INEE, looks at increasing donor funding to education in emergencies, and ways of distributing funding in a failed/fragile state. Here INEE suggests that one examines countries such as Rwanda during the time period after the genocide in 1994, 1994–1995, or Liberia and look at what has been put in place education wise to help mitigate the return to conflict. A very important issue now is that one also needs to look at the policy level financing, and understand that education is a continuum in whatever form education takes, formal or informal education. If we are only looking at the immediate response in terms of delivery, we are missing out on the continuum, we need to take a development approach to education in crisis and look at such situations in order to be able to respond in terms of prevention, to prepare for and respond to a crisis, and how to recover from such a crisis. If education is on a continuum, then funding needs to cover all these phases. The government of the Netherlands, through their funding of UNICEF and the IASC Education Cluster, played a major role in getting education in emergencies onto the international agenda; they provided the opportunity for education to be provided in emergencies in many crisis situations. The government of Norway has also contributed significantly in moving the education in emergencies agenda forward. In 2010, a coalition of governments came together to move education forward in the UN system, with Qatar taking the lead. This work resulted in the UN General Assembly’s adoption of Resolution 64/290 in 2010, declaring the right to education in emergencies. The government of Qatar arranged a meeting post-resolution in the fall of 2010 in order to map out the next steps. The resolution requests that the new UN Special Rapporteur on the Right to Education, Mr. Kishore Singh, includes in his regular next interim report in 2011 to the UN General Assembly “an update to his report on the right to educa-

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tion in emergencies, in order to identify gaps and remaining challenges in ensuring the right to education in emergency situations”.803 UNESCO has played a major role with its reports of 2007 and 2010 on “Education under Attack”, which moved this agenda further forward. In Doha the concept of “Education Above All” was established, and it was the government of Qatar that was promoting this. The Global Coalition on protecting education from attack was formed in late 2009 and one of the co-chairs is Zama CoursenNeff from HRW. The 1612 MRM mechanism is not part of the work of this coalition but some people would like it to be. (This was before SC Resolution 1998 of 2011, author’s note.) The INEE conducted a survey among its members to find out what the gaps in its work were and what thematic areas needed to be focused on, and the survey revealed that protection, early childhood education, youth and adolescents, education fragility and disaster risk reduction are the most pressing issues that the members are dealing with. It is the responsibility of the INEE to figure out with the members how to lift up these issues so that the members get what they need. The services the INEE secretariat can provide include disseminating information, tools, organizing conferences on a particular topic and engaging in advocacy. It is primarily the members that initiate the activities to be focused on, for instance the education fragility work came from the donors such as DFID and USAID, and they asked the INEE to host a working group on this issue. It can also be the case that a donor says to INEE that we want the NGO community to build a case for funding a specific educational issue, and then it is up to the INEE to draw upon its membership so that this case can be built. The perspective from the INEE is that the secretariat thinks in terms of “what do our members want to know about for instance youth and how can we use the network to get the members’ needs met regarding this particular issue?” The INEE works to provide the added value to the network, and the foundation has been laid with regards to education in emergency as it has become an established field and the tools exist with the adoption of the INEE Minimum Standards. Now the issue for the INEE is to look at what has been left behind, to ensure that the tools are being used and how to make policy makers think of education in emergencies. A very pressing issue is how to provide education when donors do not want to deal with a government, or if there is no government in place. The INEE has set up several task-teams such as on gender, adolescents and youth, HIV/AIDS and early childhood. The challenges for the INEE include continued funding, to ensure that INEE is responsible to its members, and to look at if INEE is missing any group of members that are not members now that the INEE really needs to hear from and could really benefit other members. The INEE has a steering group made up of individual members from ten different organizations. Also, the INEE is very 803 United Nations, General Assembly, Resolution 64/290, The Right to Education in Emergency Situations, A/RES/64/290, 27 July 2010

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technology oriented but in the Global South for instance many do not have access to technology which poses a problem. Also, there are now a number of groups that focus on education in emergencies so another challenge is to find ways on how to work together. Another challenge is that the INEE secretariat only has five staff members for the network of more than 5,000 members. To build an evidence based knowledge base regarding education in emergencies is a priority for the field. The INEE does not do primary research, but lifts up issues that need research, to coordinate within the network with donors and researchers that can do the research to meet the information needs of the INEE in the gap areas. The INEE promotes the research that is being done in different settings and members of INEE sit on different research committees. For instance Lori Heninger sits on a Committee chaired by the UNICEF on education and peace building and in a working group at the University of York that conducted a study on tertiary education in the Dadaab refugee camps in Kenya. For the next three years the priorities for the INEE will be on establishing cross-sectoral approaches such as identifying linkages between for instance education and health, ministries of education and other governmental ministries, education and the environment, national disasters and climate change. INEE is not static, it is evolving all the time, and the goal of the secretariat is to be able to provide the right information, to the right person, at the right time. 4.9.2.1.

The INEE Reference Guide on External Educational Financing

The members of the INEE Working Group on Education and Fragility include a broad range of agencies and organizations such as the Academy for Educational Development (AED), Australian Agency for International Development (AusAID), CARE, Canadian International Development Agency (CIDA), the Center for International Education at the University of Massachusetts, Center for Universal Education at the Brookings Institution, CfBT Education Trust, the Netherlands Ministry of Foreign Affairs, Education Development Center (EDC), European Commission (EC), Education For All Fast Track Initiative (EFA FTI) Secretariat, Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), Reach out to Asia (ROTA), Qatar Foundation, Save the Children, UK Department for International Development (DFID), UNESCO Center at the University of Ulster, UNESCO, UNICEF, US Agency for International Development (USAID) and the World Bank.804 This Working Group on Education and Fragility issued in June 2010 the INEE Reference Guide on External Educational Financing in order to “enable national decision-makers in low-income countries, including those in fragile situations, to better understand the ways in which donors provide education assistance, how various funding mechanisms work and why donors choose

804 INEE, INEE Reference Guide on External Educational Financing, June 2010, Box 1, p. 5

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one funding mechanism over another to support education”.805 The INEE defines fragile situations as “situations of crisis, post-crisis or the risk of crisis caused by conflict, natural disaster or challenges to a government’s legitimacy”, and that in such situations “a government usually has limited resources and lacks either the capacity or will to act or both. As a result, the government is unable to deliver such core public services as security, health services and education to the majority of its population or to substantial areas of national territory.”806 The INEE’s definition of fragile situations is very broad and also encompasses countries that lack institutional and personnel capacity for education policy development and education service provision, countries where no respect for norms or institutions and/or non-acceptance of their authority exist, and/or with widespread poverty, as well as “pre-conflict” situations where there is a risk that a “rapid deterioration of social, economic and political conditions” would result in a conflict breaking out.807 In this respect the INEE Reference Guide refers to the OECD-DAC definition of fragility of 2008, which in addition to poor services encompasses “conflict, state collapse, loss of territorial control, extreme political instability, clientelist policies and repression or denial of resources to subgroups of the population”.808 External funding for education is usually needed for a range of issues including: formal primary and secondary education; recreational activities for children to protect their well-being; supplemental curricula to promote psychosocial support and protection, or provide life-skills training to learners; early childhood development (ECD) services including health and nutrition; school feeding programmes providing in-school meals; youth activities designed to help students make the transition between primary and secondary school and employment opportunities; alternative education programmes such as accelerated learning programmes and bridging programmes; adult literacy programmes; school management committees and parent-teacher associations; and disaster risk reduction activities.809 When a donor is going to decide on how to choose a funding mechanism several factors have to be included such as: “1) what it is going to support (e.g. a project, programme, sectoral or national budget); 2) in what form it will extend support (i.e., funding or in-kind goods and services); 3) the specific funding mechanism that will be used (e.g. project support, programme support, budget support); and 4) how it will coordinate its support with other donors (e.g. via additional mechanisms, such as pooled funding arrangements, 805 806 807 808

INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 4 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 5 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 5 The Organisation for Economic Co-operation and Development’s Development Assistance Committee (OECD-DAC), 2008, “Service Delivery in Fragile Situations Key Concepts, Findings and Lessons”, in INEE Reference Guide on External Educational Financing, June 2010, Footnote, 2, p. 6 809 This list is taken from INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 12-13

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including multi-donor trust funds (MDTFs)”.810 In this respect the donor needs to take into account education needs, government capacity, community capacity, targeting and aid effectiveness. When a donor makes decisions on funding education in a low-income country there are mainly two goals that the donor needs to take into account such as “1. ensuring the continuity of education services, and 2. building the government’s capacity to deliver these services,” and a third goal which is to “3. support the development of education policy” which could take a long time to develop as it involves improving the knowledge base and capacity building skills of education ministries.811 Therefore it is also usually necessary for the donors to provide funding for teacher salaries; teacher recruitment and assistance; building capacity in the governmental education sector; and to support non-state providers (NPSs) that in a country or region have set up school networks.812 The concerns of the donor to provide funding to a fragile government include the actual political will of the government, whether staff skilled enough and administrative systems exist that are able “to develop an education policy; set standards; deliver funds to ministries, provincial governments, and schools; and manage and track both government and donor funds; NSPs – that is, INGOs and local NGOs, private enterprises and foundations – have the personnel and systems in place to deliver education services on the ground; and/or there is a risk of instability i.e., that the political situation may descend into conflict.”813 Furthermore, the donors use the following main funding mechanisms to fund education: humanitarian pooled funds, humanitarian appeals, project support, programme support/pooled funds, multi-donor trust funds (MDTFs), sector budget support, general budget support and debt relief.814 The INEE has produced the “Minimum Standards for Education: Preparedness, Response, Recovery” (INEE Minimum Standards Handbook) which is a global tool encompassing 19 standards on how to provide access to a minimum level of a quality education in times of emergencies in five areas, foundational standards, access and learning environment, teaching and learning, teachers and other educational personnel, and education policy.815 About 2,200 people from 50 countries contributed to the first version and about 1,200 people contributed to the update of the handbook in 2010 in which the UN Education

810 811 812 813 814 815

INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 14 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 15 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 15 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 15 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 16 INEE, INEE Reference Guide on External Educational Financing, Box. 5, June 2010, p. 21; and INEE, Minimum Standards for Education: Preparedness, Response, 2010, p. 4

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Cluster was included.816 The rationale behind the Handbook is that “quality education contributes to the prevention, mitigation and response to future crisis as well as builds a foundation for peace and human security”, as well as that quality education contributes to “greater social cohesion and a decrease in tendencies for violence and conflict”.817 Complementing the minimum standards is the INEE Pocket Guide to Gender that has been produced by the INEE Gender Task Force as women and girls have different experiences than men and boys in a conflict and emergency situation, and key principles for gender-responsive programming are highlighted, and it includes concrete strategies and actions “to put gender equality into practice”, as well as case studies, and it gives “a framework for quality education across genders”.818 With regards to the five areas of the INEE Minimum Standards, first concerning the foundational standards “participation and resources, coordination, and analysis”, community participation is a requirement which means that the members of the communities should be part of the “analysis, planning, design, implementation, monitoring and evaluation of the education responses”.819 Furthermore coordination of the different stakeholders, the continuous analysis of the emergency situation in a timely manner, a responsive strategy (including “a clear description of the context, barriers to the right to education and strategies to overcome those barriers”), monitoring and the evaluation of the education response activities should all be included in education policies and plans. Secondly, regarding the access and learning environment standards (equal access, protection and well-being, and facilities and services), equal access for all to quality and relevant education opportunities are included, as are the protection and wellbeing standards (the learning environments need to be safe and secure), and the facilities and service requirements (these are connected to health, nutrition, psychosocial and protection services). Thirdly, the teaching and learning standards include curricula, training, professional development and support, instruction and learning processes, and assessment of learning outcomes. The fourth area of standards, teachers and other education personnel, includes the standards on re816 Center for Universal Education, Brookings, Washington D.C., Delivering Quality education in emergencies: INEE tools launch and panel discussion, July 1, 2010, www.brookings.edu 817 Center for Universal Education, Brookings, Washington D.C., Delivering Quality education in emergencies: INEE tools launch and panel discussion, July 1, 2010, www.brookings.edu 818 Center for Universal Education, Brookings, Washington D.C., Delivering Quality education in emergencies: INEE tools launch and panel discussion, July 1, 2010, www.brookings.edu 819 All the information in this paragraph on the five areas of the Minimum Standards comes from Box 5. Good Donor Practice in Education, in INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 21; and the INEE Minimum Standards for Education: Preparedness, Response, Recover, 2010

Providing Education in Armed Conflict

cruitment and selection of teachers and education personnel, conditions of work, and support and supervision. Finally the fift h minimum standards area, education policy, includes the standards regarding law and policy formulation (that the “[e]ducation authorities prioritise continuity and recovery of quality education, including free and inclusive access to schooling”), and planning and implementation (that the “[e]ducation activities respect relevant human rights and take into account international and national education policies, laws, standards and plans and the learning needs of affected populations”).820 The 2005 Paris Declaration on Aid Effectiveness established five principles to be integrated into “donor-funded development interventions” by development partners and countries who are the recipients of the assistance, and they include country ownership, alignment with government priorities and systems, harmonization of donor efforts, management for results and mutual accountability.821 In the 2008 Accra Agenda for Action, the participants of the Third High Level Forum on Aid Effectiveness which was held in Accra, “reaffirmed the Paris Declaration and pledged to deepen donor engagement”, and in the Agenda the donors agreed with regards to the deliverance of development assistance that four goals be reached which include predictability, use of country systems, conditionality based on a country’s development objectives and untying assistance.822 The Accra Agenda for Action refers to the OECD-DAC “Principles for Good International Engagement in Fragile States and Situations” and these principles include that donors: “take context as the starting point for interventions in fragile situations; ensure that donor activities ‘do no harm’; focus on state-building as the central objective; prioritise prevention; recognize the links between political, security and development objectives; promote non-discrimination as the basis for inclusive and stable societies; align with local priorities in different ways in different contexts; agree on practical coordination mechanisms between international actors; act fast … but stay engaged long enough to give success a chance; and to avoid creating pockets of exclusion”.823 While there are many challenges to good donor practices, there are also several partner government challenges such as capacity issues of a given government including that the ministries do not work properly and there is not enough skilled staff, the damage to or non-existence of infrastructure and state institu-

820 INEE, INEE Reference Guide on External Educational Financing, June 2010, Box 5, p. 21; and the INEE Minimum Standards for Education: Preparedness, Response, Recovery, 2010 821 INEE, INEE Reference Guide on External Educational Financing, June 2010, Box 6, p. 22 822 INEE, INEE Reference Guide on External Educational Financing, June 2010, Box 6, p. 22 823 INEE, INEE Reference Guide on External Educational Financing, June 2010, Box 6, p. 23

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tions.824 These situations entail that many times the donors need to deliver funding through non-state entities such as that funding is provided to a non-state school that is not within the structures of a government. The concern with this strategy is that some donors do not take into account the need for a government to build the capacity to deliver education by building up its institutions, skills and education policies.825 Instead the NSPs (non-state providers) should apply the “shadow alignment” policy which means that the donors need to adhere to the existing standards and practices of the education system, because by doing so the transition from non-state schools to having the government gain control over them by the setting of appropriate education policy and standards and the delivering of funding will become less problematic over time.826 The donors face a multitude of challenges including the limitations on available funding mechanisms, political factors, accountability for the use of funds, multiple donor reporting requirements, and difficulties in providing transition funding.827 Furthermore the challenges continue in the transition period from when a country is going from the post-crisis period to the period when “the government has recovered sufficient resources and systems to assume responsibility for the education system” and some of the challenges facing donors in this period include: “rigid compartments for ‘humanitarian’ and ‘development’ aid …; lack of clear responsibility and accountability for funding in transition situations; inability to provide the kind of assistance that corresponds to the reality on the ground during transition …; the tendency of humanitarian assistance to bypass government structures, while development aid is usually predicted on working with and through governments; and the tendency of donors to fund identical activities using both types of funding for political reasons, for example, supplying ‘neutral’ humanitarian relief instead of development assistance to avoid endorsing an ‘unacceptable’ regime”.828 As has been seen there are many efforts involved today in finding ways to help all children including children affected by armed conflict and/or natural disasters to at least get access to a primary education which is a fundamental human right, as well as the multitude of the challenges involved. As has been seen, in order to be able to provide at least a primary education to children affected by conflict and/or natural disasters, in the end for the different international donors it is not possible to substitute for a viable government education policy and strong governmental institutions such as a functional education ministry, if an appropriate and non-discriminatory primary education is to develop.

824 825 826 827 828

INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 26 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 26 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 26 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 27 INEE, INEE Reference Guide on External Educational Financing, June 2010, p. 28

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4.9.3.

The Education for All Fast Track Initiative (EFA FTI) The Education for All Fast Track Initiative (EFA FTI) is a global partnership focused on helping low-income countries to achieve the six EFA Goals including access for all children to a complete cycle of basic education. It does so by helping countries develop and implement a national Education Sector Plan or an Interim Education Plan.829

The Education for All Fast-Track Initiative (FTI) was established in 2002 following the Monterrey Consensus on development funding and was designed to be a global partnership between developing country partners and donors to accelerate the accomplishment of the Education for All primary goal and Millennium Development Goal 2 of “universal primary school completion (UPC), for boys and girls alike, by 2015”, as well as the Millennium Development Goal 3 of “promoting gender equality and empower women” with the targets of “the ratios of girls to boys in primary, secondary and tertiary education”.830 As a result of the FTI reforms the new scope of the FTI is to focus on all the six EFA Goals. The acceleration of the UPC is to be done by the promotion of more efficient aid for primary education, sustained increases in aid for primary education, sound sector policies in education, adequate and sustainable domestic fi nancing for education (“within the framework of a country’s national poverty reduction strategy”), and increased accountability for sector results.831 At the global level, mutual learning on what works is also one of the aims that the FTI is promoting. All low-income countries and relevant funding agencies are invited to apply for FTI endorsement “of their plans to achieve the MDG and EFA goals of a complete primary education of good quality for all children by 2015”, and the requirements for endorsement include that a country has an approved national poverty reduction strategy (PRS) in place, a sector-wide programme for education that in-country donors have agreed to (this encompasses a strategy for HIV/AIDS, gender equality, capacity building, monitoring and evaluation) and an agreement to monitor benchmark indicators.832 That a country has a Poverty Reduction Strategy Plan (PRSP) shows that the FTI supported process of providing education is to be country-owned, directed 829 Education for All Fast Track Initiative, ESP Preparation & Endorsement, EFA FTI Country Level Process Guide, Draft, September 30, 2010, p. 4 830 The FTI was established by 22 bilateral donors, development banks and international agencies ‘active in supporting education in low-income countries’: Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 3 831 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 3 832 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4-5

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towards the poor people who are often excluded, and integrated into the general development strategy of a country.833 The education benchmark indicators include resource mobilization, student flows and service delivery, education share of recurrent budget ( per cent), public education expenditure as a per cent of GDP, share of primary education in recurrent education budget (per cent), primary net enrolment rate, primary pupil teacher ratio, percentage of repeaters in primary (female), percentage of repeaters in primary (male), primary dropout rate (female), primary dropout rate (male), transition rate from primary to secondary (male) and transition rate from primary to secondary (female).834 It was the Scandinavian countries that first approached the World Bank on how to establish a fund for the implementation of the MDG education goals a process which ended with the establishment of the FTI.835 In 2003 there were two options forwarded concerning the establishment of the FTI, either to have a full separate structure or to have a small structure within the World Bank, and it was decided that the FTI would be established as a full separate structure from the World Bank with only three to four people working at the FTI between 2003–2006.836 Members of the FTI include donors (over 30 bilateral, regional and international agencies and development banks are partners of FTI), the World Bank, the European Commission and the private sector.837 At first there was a Steering Committee of the FTI, but since 2009 there is a Board of Directors and the World Bank is one of the 19 members of the Board. The Board of Directors is currently chaired by Carol Bellamy and it is constituency based representing (i) donors, (ii) developing country partners, (iii) civil society organizations and the private sector/ foundations, and (iv) multilateral agencies.838 The World Bank is the Trustee of the FTI and acts as a banker, and as the banker the World Bank allocates the funds, but needs to follow the mandate of the FTI Board of Directors’ decision about the allocation of funds.839 The FTI Secretariat was before inside the World Bank Education Department and it was the World Bank that managed the now defunct Education Program Development Fund (EPDF); however since 2009 the

833 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 5 834 Fast Track Initiative, FTI Country Information Form, Country; and Education for All Fast Track Initiative, Country profi les see e.g. Yemen and Sierra Leone, 2009 Annual Report 835 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 836 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 837 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011, and FTI, About FTI, www.educationfasttrackorg/about-ft i/, accessed 2/15/2011 838 Next FTI Board meeting in Rwanda and Board update, www.educationfasttrack. org/newsroom/newsflash-newsletter/january-2011/new-boar..., accessed 2/15/2011 839 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011

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World Bank is an important partner just like the rest, and the FTI moved to a new building in 2010 away from the World Bank to re-establish its independence. Since its establishment the FTI has implemented a reform agenda in order to more effectively be able to accomplish the 2015 Education for All goals, a reform where the FTI and all its partners are working to:840 – – –

Decrease the ratio of children out of school in low-income countries from 21.5% in 2007 to under 5% in 2015; Double external funding to basic education in low-income countries, along with increased domestic funding; Increase the ratio of children able to read after two years of schooling from under 10% in 2009 to 50% by 2015.

For the implementation of the FTI goals five guiding principles have been established: country ownership, benchmarking, support linked to performance, lower transactions costs and transparency.841 The performance of a country and its accountability for results are linked to whether increased funding will be provided, and the FTI “is the first global initiative to operationalize the Monterrey Consensus as a partnership between developing countries and the donor community, at the international and country level”.842 The Monterrey Consensus was adopted at the International Conference on Financing for Development in Monterrey in Mexico in March 2002, in which donor countries and developing countries established a partnership to attain the internationally agreed development goals including the Millennium goals, in the context of a general realization that a severe shortage of funding to achieve these goals existed.843 With mutual accountability as a core principle, the intention behind the FTI is that it will be possible to offer (by all the education partners) financial support in a flexible, sustained and predictable manner to those countries “that have demonstrated commitment to the goal of UPC, adopted policies in full consideration of a locally adapted FTI Indicative Framework, and which have a need for, and the capacity to use effectively, incremental external resources”.844 Furthermore, regarding the 840 FTI Reform Agenda, www.educationfasttrack.org/about-ft i/reform/, Accessed 2/15/2011 841 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4 842 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4 843 United Nations, 2003, Financing for Development, Monterrey Consensus of the International Conference on Financing for Development, The final text of agreements and commitments adopted at the International Conference on Financing for Development Monterrey, Mexico, 18-22 March 2002 844 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4

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principle of transparency, countries and donors as members of the Partnership are encouraged by the FTI to share information about policies and practices.845 This sharing is to be done by “indicative benchmarking, systematic cross-country monitoring, strengthened donor collaboration and harmonization, and best efforts to provide resources in a predictable and sustained manner”.846 The EFA FTI gives different types of assistance to the countries that would wish to join the FTI Partnership as partners, such as:847 – – – – –

Technical support as needed on plan development and implementation; Financial support for activities to develop an education plan and to support its implementation; Support to strengthen sector coordination and dialogue among the Government, donor partners and the civil society; Strategic information on global good practice, including cross-cutting issues such as HIV/AIDS, Gender, Disability or Out-of-school children; and Opportunities to exchange with other countries on education policy and practice.

In order to ensure that countries that are fragile because of an armed conflict and/or natural disasters are able to join the FTI Partnership and benefit from the assistance that the FTI has to offer, there is a single process with two entry points for a country to join the FTI either through a comprehensive Education Sector Plan (ESP) or an Interim Education Plan (IEP):848 1. The comprehensive Education Sector Plan (ESP) “should cover the whole education sector and span at least 3–5 years. It will include a results framework, monitoring and evaluation strategy, a comprehensive financing framework, and an implementation plan for at least the first year.”849 The Education Sector Plan is a full plan which needs to include early childhood development (ECD), primary, secondary, tertiary education up to university level education.850 2. The Interim Education Plan (IEP) “usually addresses targeted parts of the education system and is likely to be short to medium-term (12 to 36 months). 845 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4 846 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 4 847 Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 4 848 Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 4 849 Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 4 850 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011

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It should clearly state expected results and include a monitoring and evaluation strategy and financing framework, although these may be less comprehensive than for sector-wide plans. Importantly, it should indicate how capacity will be built to enable more comprehensive education strategies in the future.”851 For the interim plan the focus is narrowed down to two to three actions, such as primary and secondary schooling, or girls’ education.852 The idea is for the country to be able to start with sub-sectors preparing for the full plan in the future. All the decisions about whether to apply for an Education Sector Plan (ESP) or an Interim Education Plan are taken by the Local Education Group (LEG) at the country level with the help of the FTI Secretariat, while decisions on technical support and on allocation of money are taken by the FTI’s Board of Directors.853 In its analysis on which plan to apply for, the LEG needs to take into account among other issues the implementation capacity, financial management capacities and the security situation of a country.854 The key actors at the country level include the government which has the main responsibility to develop and implement an education plan, the Local Education Group, the Local Donor Group (LDG), civil society organizations (CSOs), the Coordinating Agency, and if FTI provides funding to a government then two other actors, a Supervising Entity (SE) and an implementer, are in addition to be engaged.855 The Local Education Group comprises the government, different partners, such as the Local Donor Group and CSOs, and they are to jointly “develop, appraise, endorse, implement, monitor, and evaluate” an education plan at the country level.856 Each country has a different LEG composition depending on the local situation, and in those countries where there is an international humanitarian coordination in place, like an education cluster, it is important that the activities of such a cluster be coordinated with the LEG when relevant.857 Members of the Local Donor Group include representatives from bilateral donors and multilateral agencies, and they work to assist in developing, endorsing and implementing an education plan, actively prepare Joint Sector 851 852 853 854 855 856 857

Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 4 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 3 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6

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Reviews, provide the FTI Secretariat with reports, and make sure that the respective donor’s headquarters has been part of a funding decision.858 The Local Donor Group together with the partner government sets up the Coordinating Agency which functions “as the communications link between the government of the partner country, the Local Donor Group and the FTI Secretariat”, and has the lead responsibility for “all FTI-related activities from the development partner side”.859 The Supervising Entity (SE) “is designated by the Local Education Group and is responsible for supervising the activities financed by the EFA FTI Fund as agreed between the Local Education Group and the SE. Any bilateral or multilateral agency can act as SE, provided it can fulfi l this role satisfactorily and the Local Education Group can justify having chosen that agency. It is important that the SE and the Coordinating Agency work closely together on EFA FTI processes but that the Coordinating Agency remains the overall lead. The program that a SE develops in consultation with the Local Education Group to deliver EFA FTI funds will comply with the SE own norms and procedures.”860 The Implementer “carries out part or all of the program supported by the FTI at the country level. It is typically the Government but any organization (e.g. U.N. agency, donor, the World Bank, civil society organization) can fulfi l this role. The Implementer reports to the Supervising Entity.”861 The first step is for an interested government to decide what that country needs to do in order to be able to join the EFA FTI, and to establish a LEG, and the next step is for the government together with the LEG and the FTI Secretariat to develop or strengthen an education plan, either an ESP or an IEP.862 The third step is the appraisal (with preferably external technical support) and endorsement stage of an education plan at the country level, and with the support of the FTI Secretariat it is the LEG that makes these decisions. The fourth step is for the government to request support from the EFA FTI, a request which is optional, and then it is the FTI Board of Directors that makes the final decision on whether to formally endorse an education plan and whether and how much funding to allocate. The fift h step is the monitoring of the FTI resources once allocated and a reapplication process for additional FTI resources if needed. 858 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 859 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 860 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 861 Box 1: Key Players, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 6 862 The information on the step by step process comes from: EFA FTI Process Step by Step Overview, Education For All-Fast Track Initiative, EFA FTI Country Level Process Guide, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 8-13

Providing Education in Armed Conflict

Until 2010 it was only the donors that decided on the allocation of funds, but from 2011 it is the full Board of Directors that makes the decisions on the allocation of the funds, and from January 2011 the two former funding mechanisms the Catalytic Fund (CF) and the Education Program Development Fund (EPDF) were merged into one single Education for All Fund.863 In terms of for the countries that are producing an Education Sector Plan for the long-term, the FTI functions as a club with two conditions.864 The country needs to have both a Poverty Reduction Strategy Plan and an Education Sector Plan in place. The Poverty Reduction Strategy Plan (PRS) “signals that countries participating in the FTI are committed to poverty reduction. It helps ensure that the education strategies supported by the FTI are country-owned, focus on improving education outcomes for poor people (which are essential for achieving UPC) and are nested in a coherent overall development strategy. The PRS criterion helps ensure that the education strategy emanates from a national consultative process, inclusive of civil society. It also helps ensure government-wide commitment to education financing.”865 It is the government and the Ministry of Education that together with the Local Education Group develops the ESP and then if the plan is deemed as satisfactory the ESP is endorsed by the donors at the country level. As an example a Local Education Group was established in Juba in Southern Sudan before the referendum for independence in January 2011 and its members include the Ministry of Education, bilateral donors, civil society, UNESCO, UNICEF and the World Bank.866 This LEG is currently working to develop an education sector plan for Southern Sudan, and the INEE Working Group for Education and Fragility being part of this process had a workshop in February 2011 in Juba where FTI participated with the purpose of providing targeted support for the education programmes that are under development in the country, and harmonizing the different aid activities for the education sector and utilizing the particular assets of the partners.867 For these countries with low institutional capacities, the FTI gives them the alternative to apply for the Interim Education Plan, but even with the IEP endorsed they are still supposed to carry on developing a full Education Sector

863 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 864 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 865 Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 5 866 Southern Sudan Activities, FTI partners helping Southern Sudan’s education planning, www.educationfasttrack.org/newroom/newsflash-newsletter/january-2011/ southern-..., accessed 2/15/2011 867 Southern Sudan Activities, FTI partners helping Southern Sudan’s education planning, www.educationfasttrack.org/newroom/newsflash-newsletter/january-2011/ southern-..., accessed 2/15/2011

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Plan preparing the way for the whole education sector to be developed.868 When a country has an IEP endorsed, it will be possible for the country to focus on the main priorities facing the education sector and the FTI is able to provide funding for activities such as “priority studies, capacity building, national outreach and stakeholder consultation”.869 The idea is to have a process adapted to the country itself and to have a flexible process, a process where the country needs to fulfil some conditions, such as having an Interim Education Plan.870 As an example in order to have an ESP endorsed it must be possible for a government to provide statistical data and to account for how many pupils, teachers and schools the country has. For instance the DRC does not have this data and as a result the DRC has to wait maybe five years to have an ESP endorsed, and the DRC needs to produce something shorter.871 However, while the DRC does not know how many teachers there are in the country or how many teachers that are needed in the country to ensure full primary education, the DRC knows for sure that the country needs at least 20,000 teachers to be hired and trained, and the FTI is ready to support such a plan. Regarding fragile states the development of an interim strategy must be based on a mutual understanding between the government, the LEG, the donor, and take into account the reasons why a state experiences fragility (such as largescale natural disasters, warfare, civil conflict and economic collapse), and how it would be possible to mitigate these factors and identify what is needed to be included in an education strategy to this end.872 In states that are experiencing tension and conflict, it is necessary for the FTI to evaluate the education system that is in place as that system itself might have been a factor in the ensuing tensions and conflict. Therefore an IEP needs to include a description of the general context of a country and how the educational system is being affected by that context, the current situation of the education sector together with an analysis of the fragility situation (which needs to include a detailed list of the difficulties and constraints that the education sector faces), and how education in the country is linked to fragility, such as if inequity in access to education by a specific group has been one of the causes of the conflict (other factors could include

868 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 2010, p. 3 869 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 2010, p. 3, and Education for All-Fast Track Initiative, Accelerating progress towards quality universal primary education, Framework, 2004, p. 5 870 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 871 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 872 Fast Track Initiative (FTI) Support to fragile situations, Progressive Framework, Discussion Document & Guidelines, 8 May, 2008, p. 3

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infrastructure, curriculum).873 Even as the development of an IEP is an inclusive process, the main responsibility for providing leadership and coordination for such a process lies on the Ministry of Education of a given country.874 The FTI has identified some factors that could if included in an IEP help reduce fragility and tensions and these include: exclusion and equity, the promotion of values of tolerance of diversity, curricula revisions and human rights education and/or other similar approaches, engaging youth in educational processes which divert them from gangs, the recruitment into armed militia or antisocial behavior, and support to education authorities at all levels, for effective management of public resources in an equitable and transparent manner.875 With regards to fragile states one of the rationales for the development of an IEP is for a country to find a way to balance short-term service delivery with longer-term reconstruction and institution building so that those factors that play a role in state fragility can be mitigated.876 The FTI does not only examine the needs of a certain country, but the FTI also must evaluate the capacity of the country to be able to effectively use the aid that will be allocated, which can be a challenge. Regarding the issue of implementing capacity, for instance the Haitian government has after the earthquake set up an education plan with the cost of USD 4 billion for three years, but even if Haiti would get the money, Haiti does not currently have the implementing capacity to use this large amount of funding, instead Haiti needs to produce an ESP.877 This example shows that for the FTI one challenge is how to manage expectations, and the FTI many times says to a country that there is a need to be “ambitious but realistic”.878 With regards to the education plans there are two stages with the IEP and the ESP plans which remain after the FTI reform, and the FTI expects a country developing an IEP now to be able to develop a full ESP in the future.879 The difference is that in the past a country endorsing an IEP was supposed to have only an interim status in the FTI Partnership, while now FTI offers two entry points, obtaining full membership in both cases. 873 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 30, 2010, p. 4 874 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 2010, p. 3 875 Fast Track Initiative (FTI) Support to fragile situations, Progressive Framework, Discussion Document & Guidelines, 8 May, 2008, p. 4 876 Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 2010, p. 4 877 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 878 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 879 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011, and Fast Track Initiative, How to Develop an Interim Education Plan, ESP Preparation & Endorsement, Draft, September 2010, p. 3

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Some of the most pressing challenges confronting the FTI is how the FTI can work with weak governments, or if in a given country/territory there is no government in place or even present, or if the FTI and the international donor community do not want to deal with a government. One of the new changes that has taken place at the FTI to facilitate the work with for instance conflict-affected countries is that in the beginning the World Bank was the only supervising entity for the FTI, but this has now changed where as an example in Zambia it is the Netherlands that is the supervising entity, while the UK is the supervising entity in Rwanda, and UNICEF is the supervising entity in Madagascar and Guinea.880 In Madagascar and Guinea the UNICEF is not only the supervising entity, but one of the implementers as well, where UNICEF and some NGOs among other activities are building schools in Madagascar and in Guinea. The government of Guinea in 2008 signed an agreement with FTI; however shortly afterwards there was a coup and the FTI suspended the agreement.881 Two years later the option was to have the UNICEF as the supervising entity. Earlier the World Bank was selected as the supervising entity, but the World Bank could not work with a de-facto government. In this situation the UNICEF came on, which was 18 months before, and it was UNICEF that proposed this option for Guinea and it is a very good solution as it is working very well.882 For Guinea USD 118 million had been allocated through the World Bank before the coup, however the World Bank blocked the money as the agreement from 2008 was not valid anymore since the old government was gone because of the coup.883 For the FTI there was a need to have a signed agreement, which it had with the old government, but again this agreement was not valid anymore, and in this situation the FTI made a new agreement with UNICEF to act as a supervising entity. In terms of capacity if you send money to the government, and the government will not be able to spend the money in time, the position of the FTI is that a government needs to be able to spend the money as soon as the money has been allocated as there is a need for instance to build schools right away.884 After the Haiti earthquake there was the launch of the Global Education Cluster for Haiti in 2010 and FTI is a member of the Global Education Cluster Working Group, and there is a planned meeting for this Working Group in London 2012.885 The FTI is a member of the INEE working group on education and fragility, and for instance this working group had a workshop in Juba to meet

880 881 882 883 884 885

Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011 Alberto Begué, then at the FTI, Interview, Washington D.C., February 10, 2011

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with the representatives of the new government of Southern Sudan on how to provide education since the referendum for independence in January 2011. 4.9.3.1.

Reforming the FTI If FTI is to make a significant difference for conflict-affected countries, it has to operate with different rules and on a different scale.886

The Global Monitoring Report from 2010 argued that the FTI in the form it was in was “indefensible”, and the report brought up several challenges to the effective implementation of the FTI goals, such as that the FTI had failed to mobilize and deliver financing on the required scale, had left intact a failed approach to the assessment of financing gaps, had in some cases weakened efforts to improve aid effectiveness and implement the Paris agenda, had the rhetoric of an aid partnership with the governance arrangements of a “donor club”, and that conflictaffected countries had not been well served by the FTI.887 As the Global Monitoring Report from 2011 stipulated the “conflict-affected countries have fared badly under the FTI”, some of the reasons being that the “gold standard” mechanism which FTI created has proved too challenging for these countries, as it has been problematic for them to develop solid education plans and get these endorsed before they have been able to request funding.888 For instance it took one year for Sierra Leone’s application for USD 13.9 million to be approved, after which it took about another 16 months to have the grant agreement signed, with just 22 per cent of the grant having been disbursed by September 2010.889 Holding on to the gold standard planning requirements and at the same time finding a way to account for the conflict-affected countries’ need for flexibility has posed a dilemma for donors and the FTI, as some donors have feared that some attempts (such as the Progressive Framework) by the FTI to make it easier for conflict-affected governments to access funding would dilute the standards.890 EFA GMR 2010 and an external evaluation found that some of the main issues for the FTI were the slow disbursement of funds, donor-dominated govern-

886 EFA Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 887 EFA Global Monitoring Report, 2010, Reaching the marginalized, UNESCO, p. 248249 888 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 889 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 890 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236

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ance and limited support to conflict-affected countries.891 Since its establishment the FTI has not received much funding and some of the reasons as to why donors have been unwilling to provide funding to FTI have been because of issues regarding governance and long-time lags in the disbursement of funds that have been connected to the eligibility requirements for the Catalytic Fund.892 Responding to the concerns held by not only the EFA Global Monitoring Report and the external evaluation but also from others, FTI is implementing changes including creating a new management structure, providing equal representation of developing countries on the FTI board, giving developing countries a stronger voice in governance, having other supervising entities than the World Bank and improving the pace of the disbursement of funds.893 In November 2010, FTI’s Catalytic Fund and the Education Programme Development Fund (EPDF) were merged into one single fund, the Education for All Fund “which is intended to help streamline FTI support and create more flexible financing arrangements”.894 The GMR 2011 stated that the goal for the FTI for 2011–2013 should be to raise the funding to the level of about USD 6 billion per year to accommodate the new Education for All Fund, and to reform FTI governance and find ways for the rapid disbursement of additional funds to the countries with the greatest needs.895 The issue of how to accommodate the needs of the conflict-affected countries remains problematic for FTI, and while the FTI has adopted new guidelines for the option of interim plans, the concern is “how compliance with the guidelines might be translated into concrete financing”.896 The FTI must find a way to increase the scale of its funding to meet the real needs of the conflictaffected countries, for instance the collective EFA financing gap for Afghanistan, Burundi, Chad, Côte d’Ivoire, DRC and Southern Sudan is about USD 2.5 billion.897 There are diverging views as to what role FTI is to play in the fi nancing of aid, with some seeing it “as a tool to leverage additional resources from bilateral donors and a facility to strengthen national capacity”, and others as a mecha891 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 892 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 235-236 893 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 894 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 895 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 239 896 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 897 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237

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nism “to mobilize and deliver new and additional finance to close the Education For All financing gap”.898 However if, as GMR 2011 states, FTI’s main goal is to financially support the Education for All goals, then its financial base needs to be strengthened, in the context that the EFA external financing gap amounts to about USD 16 billion annually to 2015, while only USD 222 million had been disbursed by FTI in 2009.899 The Global Monitoring Report of 2011 identified the remaining challenges for the FTI with regards to the provision of assistance to conflict affected states, and they include: “sharpening the focus of its mandate to close the Education for All financing gap, mobilizing finance on the scale required, developing rules and procedures that facilitate rapid disbursement, and –critically-ensuring that its operational procedures can accommodate the needs of conflict-affected countries”.900 The authors of the Global Monitoring Report are not in favour of replacing FTI and establishing a new funding mechanism for fragile or conflictaffected states, arguing that “the FTI is well placed to serve as a multilateral pooled fund for supporting education in conflict-affected countries”, but means that “the mechanisms for applying the principle of a single process and framework have to be clarified and adapted to the special circumstances and diverse needs of countries in or emerging from armed conflict”.901 Donors are open to new innovative ways to provide financial assistance to conflict-affected countries, when the FTI system has not worked. Liberia’s application for FTI funding in 2007 was denied, but FTI approved Liberia’s request for USD 40 million in 2010. As a result of FTI’s decision in 2007, a pooled fund, the Primary Education Recovery Programme, supported by the Netherlands and spearheaded by UNICEF, was established to fund Liberia’s interim education plan and within a year USD 12 million had been disbursed by bilateral donors and the Soros Foundation.902 This pooled funding arrangement for Liberia needed to be seen in the context of donors trying to improve assistance to conflict-affected states, and having understood the challenges involved with FTI’s aid governance arrangements, the Netherlands gave USD 201 million in 2007 to establish the Education in Emergencies and Post-Crisis Transition Programme.903 The 898 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 899 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 237 900 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 238 901 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 238 902 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 903 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236

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UNICEF put this programme into practice, and the EFA agenda has benefited much from the programme where funding for various projects has been made available, such as for rekindling learning and improving the education systems in 38 countries reaching six million children, and the distribution of textbooks and other learning materials to more than three million children.904 The GMR argues that multilateral initiatives in public health should provide lessons for FTI reform, pointing to that the Global Fund to Fight AIDS, Tuberculosis and Malaria and the FTI were both established in 2002, during a time when the FTI has disbursed USD 883 million, the Global Fund USD 10 billion, and since 2000 the GAVI Alliance over USD 2 billion.905 For 2011–2013 the donors pledged USD 11.7 billion to the Global Fund, while the FTI was working to get donors to pledge USD 1.2 billion in 2010.906 The FTI has a “limited support base” where for 2004–2007 the FTI received pledges from 14 countries, of which the Netherlands provided over 50 per cent, and the UK and Spain more than onequarter.907 While the public health area is different from education, still in terms of scale the disbursements of funds to health funds are reflective of a much more effective capability to raise money. The United Kingdom Department for International Development (DFID) has increased its support of providing children affected by armed conflict with education also in the midst of war.908 This is being done within its support of reaching the Millennium Development Goals in time and to have developed a new way of being able to provide children in the most difficult situations such conflicts with an education. The DFID gives not only financial assistance to key partners and programmes but also expertise, such as giving the UNICEF a grant in the amount of GBP 20 million to deliver education in emergency, conflict and post-crisis countries and to support the UN humanitarian cluster for education, and developing a “rapid response capability to deploy skilled education professionals in humanitarian emergencies”.909

904 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 905 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 235 906 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 907 EFA, Global Monitoring Report, 2011, The hidden crisis: Armed confl ict and education, UNESCO, p. 236 908 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 41 909 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 41

Providing Education in Armed Conflict

4.10.

Mental Health and Psychosocial Support as Part of Education in Emergencies

As a result that the aid community is now beginning to acknowledge the importance of providing education in emergencies, the need for the inclusion of psychosocial strategies in the delivery of education under such circumstances also needs to be both recognized and examined.910 Education in emergencies is acknowledged as “a key psychosocial intervention”.911 As an example the Inter-Agency Standing Committee, IASC, Guidelines on Mental Health and Psychosocial Support in Emergency Settings have been used in coordinated workshops in Africa in order to find a way to integrate psychosocial support to students in war affected areas into their school environment and/or the education system.912 The Guidelines make clear that education is a “core mental health and psychosocial support domain”.913 Issues of concern regarding providing psychosocial support as part of education to war affected populations include finding ways “to strengthen the education system by promoting safe learning environments, making formal and non-formal education more supportive for distressed children and increasing access to education”.914 Caregivers, teachers and other child protection workers should all be part of any strategies to strengthen and improve the education system. The participants in these workshops worked to find ways on “how education can restore a sense of normalcy, dignity and hope by offering structured, appropriate and supportive activities to help rehabilitate children who have experienced violence, war, displacement or other life changing events”.915 Several important issues were identified by the participants as common themes that needed to be taken into consideration when providing education to children in war affected areas (and other emergencies). These included first to have a “daily routine” where classes, activities or sports events are planned and scheduled in order to contribute to the restoration of a “consistency, a sense of

910 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299 911 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299 912 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299: Practitioners from Uganda, Rwanda, Burundi, Somalia, Tanzania, Democratic Republic of Congo, Ethiopia, South Africa, Liberia, Sierra Leone participated. 913 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299 914 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299 915 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 299

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normalcy, dignity and hope” for war-affected children.916 A second observation was that to have adult “supervision” was found to be crucial in order to be able “to monitor the most vulnerable children and help rehabilitate and/or refer children who have extreme difficulty coping with their experiences of conflict, disaster or loss”.917 A third observation was that “the curricula” needed to be adapted so that the pace and needs of the children who newly had experienced an emergency could be met. Furthermore, since the situation on the ground in an emergency can change very quickly there is a need from a psychosocial perspective for a “continuous review” of the education programming, as well as for “flexibility” of the system.918 It was also acknowledged that one of the most difficult stressors for children and their families in war is “the loss of education”, and to reinstate “access” to learning of any kind in emergencies gives much needed help to both the child and the child’s family. There are several challenges involved with not only providing education in emergencies, but also the fact that government education authorities do not generally have much understanding of or knowledge about psychosocial issues.919 In an emergency, the strength of the education system as a whole changes, which also constitutes a challenge to the inclusion of psychosocial aspects into the learning process. Another important challenge is the lack of funding for education in emergencies in general and which results in less funding available for integrating psychosocial aspects into the education process.920

916 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 300, emphasis by Wheaton et al. 917 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 300, emphasis by Wheaton et al. 918 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 300, emphasis by Wheaton et al. 919 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 300 920 Wheaton W., Alumai F., Onyango, G., Training of trainers on mental health and psychosocial support in emergencies Africa, Intervention 2008, Vol. 6, No 3/4, p. 300

5.

The Inter-American Human Rights System as It Pertains to Children

5.1.

The Human Rights of Children and Adolescents

The rights of the child and adolescents within the Inter-American human rights system are covered by the 1948 American Declaration on the Rights and Duties of Man and the 1969 American Convention on Human Rights.1 There is no separate convention or declaration on the rights of children within the Inter-American human rights system, such as there is for women in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, the so called Belèm do Pará Convention which was adopted in 1994.2 The UN Convention on the Rights of the Child is applicable for all the member states of the OAS that have ratified the Convention, and it provides a much more detailed account of the rights of children, which member states are legally obliged to protect. The American Declaration of 1948 made clear that children as minors have a special need for care and protection separate from adults, stating in Article VII that:3 All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

1

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3

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 17: The American Convention on Human Rights, Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969 32 OAS member states have ratified the Belèm do Pará Convention by December 2011, Department of International Law, OAS, Multilateral Treaties, www.oas.org/ juridico/english/sigs/a-61.html Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 19 and 20

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The Declaration furthermore stipulates in Article XXX that both adults as caregivers and children have specific duties: It is the duty of every person to aid, support, educate and protect his minor children, and it is the duty of children to honor their parents always and to aid, support and protect them when they need it. …

In its Advisory Opinion OC-17 of 2002 referring to the UNCRC the InterAmerican Court of Human Rights stipulated that children should receive “special care” and that the American Convention requires the children to be provided with “special measures of protection”, to this respect the Court stated that “[i]n both these cases, the need to adopt these measures or care originates from the specific situation of children, taking into account their weakness, immaturity or inexperience”.4 As a result it is “not only the requirement of special measures, but also the specific characteristics of the situation of the child” that needs to be taken into consideration to ensure their rights.5 The scope of the rights of the child was very limited in the American Declaration and there was no definition of who constitutes a child or minor, and while the American Convention on Human Rights is a comprehensive human rights instrument where all of its 26 articles apply to children it does not either give a definition of who a child or minor is.6 The American Convention though has a special provision on the rights of children, Article 19, and some provisions that acknowledge child rights.7 The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have decided that the definition of a child is determined by Article 1 of the UN Convention on the Rights of the Child.8 In the Street Children case, Villagrán Morales et al. v. Guatemala of 1999, which was the first case on children’s rights that the Court heard, the Court in-

4

5

6

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8

Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, X Opinion, para. 60 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, X Opinion, para. 61 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 21 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 1, footnote 1, Articles 4(5), 5(5), 13(4), 17, 19, 27(2) American Convention on Human Rights. Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 31

The Inter-American Human Rights System as It Pertains to Children

terpreted Article 19 of the Convention as to cover only persons under the age of 18 years stating that:9 Article 19 of the American Convention does not define the term “child.” The Convention on the Rights of the Child defines a child as every human being below the age of 18 years, “unless under the law applicable to the child, majority is attained earlier.” (Article 1) According to the Guatemalan legislation in force at the time the events of this case occurred, persons who had not attained 18 years of age were also minors. According to these criteria, only three of the victims, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes, and Anstraum Villagrán Morales, had the status of children. However, in this judgment, the Court uses the colloquial expression “street children” to refer to the five victims in the present case, who were living in the streets, in a situation of risk.

Furthermore, determining who constitutes a child the Court stated in its Advisory Opinion OC-17 Juridical Status and Human Rights of the Child of 2002 that:10 Finally, taking into account international norms and the criterion upheld by the Court in other cases, “child” refers to any person who has not yet turned 18 years of age.

Subsequently the Court referred to its Advisory Opinion OC-17 in the case of Bulacio v. Argentina of 2003 stating that:11 Walter David Bulacio was 17 years of age when he was arrested by the Argentine Federal Police. The Court established in its Advisory Opinion OC-17 that: “definitely, taking into account international law and the criterion upheld by the Court in other cases, a ‘child’ is understood as every person who has not attained 18 years of age.”

9

10 11

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 33: The Court has made reference to that there might exist other national laws that determine the age of an adult or a child differently, Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 13 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, para. 42 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 34

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That children are subjects of rights and thus have the right to juridical personality was clarified by the Inter-American Court in its Advisory Opinion OC-17 of 2002 in which it stated that:12 Adulthood brings with it the possibility of fully exercising rights, also known as the capacity to act. Th is means that a person can exercise his or her subjective rights personally and directly, as well as fully undertake legal obligations and conduct other personal or patrimonial acts. Children do not have this capacity, or lack this capacity to a large extent. Those who are legally disqualified are subject to parental authority, or in its absence, to that of guardians or representatives. But they are all subject of rights, entitled to inalienable and inherent rights of the human person.

The Inter-American Commission on Human Rights (IACHR) established a Rapporteurship on the Rights of the Child in 1998, which has as its mandate to promote the human rights of children and adolescents within the jurisdiction of the 35 member states of the OAS.13 The Rapporteurship is to provide advice and specialized analysis to the Inter-American Commission on Human Rights in the proceedings of individual petitions, cases and requests of precautionary and provisional measures when alleged violations of the human rights of children and adolescents take place.14 When it comes to precautionary and provisional measures the IACHR can in such cases where the violations of children’s and adolescents’ rights are serious and urgent request states to adopt urgent measures to stop these violations immediately in order to prevent irreparable harm.15 Also, importantly in cases of extreme gravity and urgency the IACHR also is mandated to request that the Inter-American Court orders states to adopt provisional measures to prevent irreparable harm.16 In addition, the Rapporteurship with the consent of a member state carries out on-site visits, and prepares specialized studies on the

12

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14

15

16

Int-Am. Ct H.R. Series A: No. 17; Advisory Opinion on the Juridical Conditions and Human Rights of the Child, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, para. 41 and 42 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 5-8 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 9-15 and Web-site of the Rapporteurship on the Rights of the Child, Mandate and functions, www.cidh.org/Ninez/default_eng.htm, accessed May, 2011 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 9-15 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 9-15

The Inter-American Human Rights System as It Pertains to Children

rights of children and adolescents as well as engages in promotional activities such as issuing publications, having seminars, meetings and workshops. Having acknowledged the existence of a legal framework for the protection of children’s human rights that is to guide the Inter-American Court in its interpretation of Article 19 of the American Convention the Court has stated that:17 Both the American Convention and the Convention on the Rights of the Child are part of a very comprehensive international corpus juris on protection of children which should be used by this Court to determine the content and scope of the general provision established in Article 19 of the American Convention.

The corpus juris reflects that the rights of children and the interpretation of these rights are not static and develop over the years, and in this regard the InterAmerican Commission on Human Rights has stated that “[t]he Court has emphasized that the existence of the so-called corpus juris is the result of the evolution of international human rights law in matters related to children, which focuses on recognition of children and adolescents as persons with legal rights”.18 This legal framework in the context of the Inter-American human rights system as it pertains to children recognizes that several norms in different international instruments with various legal content and effects when analysing Article 19 of the American Convention should be taken into account when relevant to guarantee the protection of the rights of children and adolescents.19 They include the Declarations on the Rights of the Child of 1924 and 1959, the 1989 Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985 Beijing Rules), the Standard Minimum Rules for Non-Custodial Measures (1990 Tokyo Rules), and the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990 Riyadh Guidelines), in addition to other international instruments on human rights in general (treaties, conventions, decisions and declarations), and decisions issued by the UN Committee on the Rights of the Child.20 Here the Inter-American Commission 17

18

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20

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 40, and I/A Court H.R., The “Street Children” Case (Villagrán Morales et al). Judgment of November 19, 1999. Series C No. 63, para. 194 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 41 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 39-41 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 41-43

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on Human Rights has specifically stated that when using the UNCRC and the decisions by the UNCRC Committee as a tool for the interpretation of Article 19 and the rights of the child, it is of equal importance that the four principles that are to guide the implementation of the UNCRC, the principle of non-discrimination, the principle of participation, the principle of the development and survival of the child and the principle of the best interests of the child, also be included.21 The Commission already in its Annual Report of 1997 had referred to the best interests of the child principle in one of its decisions, stipulating “in all cases involving decisions that affect the life, liberty, physical or moral integrity, development, education, health, or other rights of minors, these decisions must be made on the basis of what is most advantageous to the child”.22 The Commission means that in this way there exists a “global interdependence of the different international systems for protection of human rights of children and adolescents”, as well as “a common legal framework in international human rights law” applicable to them.23 5.1.1.

Prohibition of Suspension of International Obligations Related to the Human Rights of Children

A state may in extremely exceptional circumstances restrict the application of human rights; however this is not to be equalled to the suspension of the rule of law or “the absence of legal limits on the action of the state”.24 The International Covenant on Civil and Political Rights (ICCPR) Article 4(2) and the American Convention on Human Rights Article 27(2) stipulate that the international obligations cannot be suspended by the states parties with regards to the right to life, the prohibition of torture and cruel, inhumane, or degrading treatment or punishments, prohibition of slavery, trafficking in persons and servitude, prohibition of imprisonment for non-compliance with contractual obligations, observance of the principle of legality in criminal matters (there is not punishment or crime without the law), the principle of application of the punishment most favourable

21

22

23

24

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 43-44 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 44 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 45 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 46

The Inter-American Human Rights System as It Pertains to Children

to the convicted person, the right to recognition of legal personality, and to freedom of conscience and religion.25 The American Convention in addition to this list of rights that cannot be suspended also includes non-suspension of rights concerning the protection of the family, the right to a name, the right to a nationality, political rights, and the rights of the child (Article 19).26 As such the American Convention is “the only binding international human rights instrument” which does not allow the states to suspend international obligations associated with children’s and adolescents’ human rights.27 Furthermore additional non-derogatory rights in the American Convention include the right to a fair trial, and the Inter-American Court has in an advisory opinion clarified that judicial guarantees that cannot be suspended from include habeas corpus, amparo, and as the Commission explains “any other effective remedy available in the competent courts or before the competent judges that is designed to guarantee respect for the rights and liberties that may not be suspended in such situations”.28 As a consequence, the judges of courts in states parties to the American Convention “must always process legal actions brought for protection of the human rights of children and adolescents during states of

25

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27

28

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 48 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 49: Article 27 of the American Convention: Suspension of Guarantees, 1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. […] Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 49 Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 50, and footnote 34: Advisory Opinion OC-9/87 of October 6, 1987.

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emergency, and must, as applicable, exercise judicial control based on the reasonability and proportionality of the restricted act”.29 Regarding the best interests of the child principle the Inter-American Court of Human Rights referring to the requirement of special protection of children and the promotion and preservation of the rights of children stated in its Advisory Opinion OC-17 that:30 This regulating principle [of the best interests of the child] regarding children’s rights is based on the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential, as well as on the nature and scope of the Convention on the Rights of the Child.

Furthermore the Court here was “of the opinion” with regards to the best interests of the child principle:31 That the phrase “best interests of the child”, set forth in Article 3 of the Convention on the Rights of the Child, entails that children’s development and full enjoyment of their rights must be considered the guiding principles to establish and apply provisions pertaining to all aspects of children’s lives.

It was in the Dilcia Yean and Violeta Bosico v. Dominican Republic case that the Inter-American Court of Human Rights under the American Convention made a decision for the first time on the right to nationality.32 Two girl children born with Haitian ancestry in the Dominican Republic had not been able to obtain birth certificates as the state had refused to grant these because their Haitian fathers were migratory workers and regarded as being in transit as were the children.33 While the girls subsequently were given birth certificates, after the InterAmerican Commission had decided that this case was admissible, the girls had for more than four years lived as stateless persons from the time their applica-

29

30 31

32 33

Inter-American Commission on Human Rights, The rights of the child in the InterAmerican human rights system, Second edition, Chapter 1, General Information, para. 51 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, para. 56 Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, X Opinion, para. 137. 2. Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 209 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 213-214

The Inter-American Human Rights System as It Pertains to Children

tion for birth certificates had first been denied.34 This entailed that the children’s right to nationality and their right of being recognized before the law had not been respected. The denial of these rights in turn had led to that their right to education was not respected because if a child did not have a birth certificate in the Dominican Republic they could not register and go to school.35 The InterAmerican Court in this regard held that, “[c]onsequently, these children have had difficulty in obtaining an identity card or a Dominican passport, attending public schools and having access to health care and social assistance services”.36 They were discriminated against because of their Haitian ancestry and furthermore these had been on-going violations. The Court for the first time in this case interpreted Article 19 specifically with regards to girls as a specific vulnerable group, and the Court noted that girls were especially vulnerable within an already vulnerable group of children (here the children with Haitian ancestry born in the Dominican Republic) and stated in the case that “the State must pay special attention to the needs and the rights of the alleged victims owing to their conditions as girl children, who belong to a vulnerable group”.37 This case is also an example of how the human rights of children are interrelated and indivisible.38 Importantly the Courts’ Advisory Opinion OC-17 was reaffirmed in the Dilcia Yean and Violeta Bosico Girls case with regards to the principle of the “prevalence of the child’s superior interest affects the interpretation of the other rights” in the American Convention in cases concerning children, as the Court held in this case that:39 The prevalence of the child’s superior interest should be understood as the need to satisfy all the rights of the child, and this obliges the State and affects the interpretation of the other rights established in the Convention when the case refers to children.

34 35 36 37 38 39

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 213 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 209 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 214 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 209-210 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 218 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, and Case of the Yean and Bosico Children, p. 218

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As the Court stated in its Advisory Opinion OC-17, the “[a]ctions of the State and of society regarding protection of children and promotion and preservation of their rights” should follow the principle of the best interests of the child so that all the rights in the UNCRC can be fully realized.40 With regards to the right to juridical personality as is provided for in Article 3 of the American Convention, which states that “[e]very person has the right to recognition as a person before the law”, the principle that the Court had established in the Bámaca case was reaffirmed by the Court in the Yean and Bosuco Children’s case such as that:41 Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights. The right to the recognition of juridical personality implies the capacity to be the holder of rights (capacity and exercise) and obligations; the violation of this recognition presumes an absolute disavowal of the possibility of being a holder of such rights and obligations.

In the Yean and Bosuco Children’s case the Court again reaffirmed that children are subjects of rights and have thus the right to be recognized before the law, and stipulated in this respect that:42 179. The Court considers that the failure to recognize juridical personality harms human dignity, because it denies absolutely an individual’s condition of being a subject of rights and renders him vulnerable to non-observance of his rights by the State or other individuals.

Furthermore the Court stated that with regards to that the Dominican Republic had not recognized the juridical personality of the children and thus violated Article 3 of the American Convention that:43 Even though the children existed and were inserted into a particular social context, their existence was not recognized juridically; in other words they did not have juridical personality.

40

41 42 43

Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights, X Opinion, para. 59 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 219-220 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 220 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 220

The Inter-American Human Rights System as It Pertains to Children

Subsequently the Court ruled that the human rights in the American Convention which had been violated by the state of the Dominican Republic to the detriment of Dilcia Yean and Violeta Bosico were Articles 20 (the right to nationality) and 24 (the right to equal protection) in relation to Article 19 (rights of the child) and Article 1(1) (obligations to respect rights), and since the state at first had denied the girls their right to nationality, Article 3 (the right to juridical personality) and Article 18 (the right to a name) in relation to Article 19 and Article 1(1) had in addition been violated.44 5.2.

The Inter-American Court of Human Rights and Its Decisions on the Rights of Children in Armed Conflict

The American Convention on Human Rights in its Article 19 on the rights of the child gives the Inter-American Court of Human Rights a jurisdictional power which enables it to make decisions on children’s individual human rights in conjunction with complaint procedures, in contrast to other international judicial bodies that have not been given such a power.45 The way that the Convention gives the Court this power in its Article 19 with a specific focus on the rights of children is unique for the Inter-American human rights system.46 This means that the Court has the legal right as well as the jurisdictional power to bring up cases of violations of children’s human rights in order to guarantee the rights of the child and make binding decisions onto the state parties. Article 19 of the IACHR on the Rights of the Child reads: Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the State.

As a result of the wording of Article 19, the Court has analysed and continues to develop the scope of “the measures of protection” so as to ensure the best protection of the child in any circumstance, in peace time and in times of armed conflict. Since 1999 the Inter-American Court of Human Rights has issued groundbreaking decisions on children’s rights both in times of peace and armed conflict.47 The Inter-American Court’s first decision on the rights of children was the Villagrán Morales et al. case, the Street Children case, in 1999 which concerned 44 45 46 47

Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 230 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 2 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 1-2 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 1

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street children in Guatemala.48 The street children in this case had been brutally murdered by state agents and they had been tortured including by wild animals before having been killed.49 The Court elaborated on the right to life provision (Article 4) and Article 19 (rights of the child) and state responsibility. The Court analysed Guatemalan state agents systematically persecuting, torturing and killing the street children and that the state of Guatemala had denied the children a dignified existence, and in this regard the Court stipulated that:50 The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.51

The Court argued that the state of Guatemala was responsible for violating the street children’s rights under the American Convention on Human Rights and that double aggression of the children’s rights was at the core of the case.52 The Court ruled: In the light of Article 19 of the American Convention, the Court wishes to record the particular gravity of the fact that a State Party to this Convention can be charged with having applied or tolerated a systematic practice of violence against at-risk children in its territory. When States violate the rights of at-risk children, such as “street children,” in this way, it makes them victims of a double aggression. First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the “full and harmonious development of their personality”, even though every child has the right to harbor a project of life that should be tended and encouraged by the public authorities so that it may develop this project for its personal benefit and that of the 48 49 50 51 52

Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 3 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 3 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 25-26 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 26 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 26

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society to which it belongs. Second, they violate their physical, mental and moral integrity and even their lives.53

In order to determine Guatemala’s legal responsibilities towards the protection of the children at the time the violations in the case took place in accordance with Article 19, the Court reiterated its previous jurisprudence stating the need to take into account the whole system in which a treaty is to be interpreted and not only “the agreements and instruments formally related to it”, and that in this case with regards to the protection of children this included both the American Convention and the UNCRC.54 These “formed part of a very comprehensive corpus juris” for the protection of children, and for this specific case the Court took into account Articles 2, 3(2), 6, 20, 27 and 37 of the UNCRC, and while referring to them stated that:55 Among them, we should emphasize those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an adequate standard of living, and the social rehabilitation of all children who are abandoned or exploited. It is clear to the Court that the acts perpetrated against the victims in this case, in which State agents were involved, violate these provisions. …

With regards to the protection of children’s rights in times of armed confl ict, the Inter-American Court issued two decisions in 2004 which were the first international law cases in the world regarding the protection of children’s rights in armed conflicts.56 These cases were the Molina Theissen case (Molina Theissen v. Guatemala) and the Gómez Paquiyauri Brothers case (Gómez Paquiyauri Brothers v. Peru).57 In the case of Guatemala, at the height of the internal armed conflict between 1979 and 1983, many children were direct victims of gross human rights violations including enforced disappearances, arbitrary executions, torture, kidnappings and rape.58

53 54 55 56 57 58

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 26 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 27-28 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 27-29 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 5 See the Case of Molina Theissen vs. Guatemala, judgment of May 4, 2004, and the Case of the Gomez Paquiyauri Brothers vs. Peru, judgment of 8 July, 2004. Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 56

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The Molina Theissen case was about a 14 year old boy, Marco Antonio Molina Theissen, who had been kidnapped by security state agents and subsequently disappeared. His family was politically active and at the time those who were considered to be “subversives” or “internal enemies” by the state were hunted down, and a practice of forced disappearances by security state agents was carried out with the purpose of “the breaking up of movements or organisations that the State identified as inclined towards ‘insurgency’ and to spread fear amongst the population”.59 In the internal armed conflict in Guatemala with regards to the use of torture by state agents of children, the Court stipulated that “threats and torture to which children were subjected were utilised as a way to torture their families”, and that the use of enforced disappearances of the children was done to instil “exemplary terror” in their families.60 To illustrate the cruelty and total disregard for the human rights and dignity of the people of Guatemala and especially of the children, with regards to the Molina Theissen case, the testimony by a sociologist before the Court reflects that reality.61 He stated: Marco Antonio Molina Theissen was the most vulnerable figure in the family, since he was the youngest, since he was a child and since he was the only male. This was the practice that was used with five families and which has been documented by the National Commission for the Search for Disappeared Children. These families were harmed by the kidnapping and the disappearance of their youngest children. The case of Marco Antonio was only a part of this practice and cannot be considered as an isolated case.62

The government of Guatemala accepted responsibility in the Molina Theissen case, which led to that the Court decided in its decision of 4 May 2004 that the government of Guatemala was responsible for having violated the rights in the American Convention on Human Rights to the detriment of Marco Antonio Molina Theissen concerning the right to life (Article 4(1)), the right to humane treatment (Article 5(1) and (2)), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the rights of the family (Article 17), the rights of the child (Article 19), the right to judicial protection (Article 25), and for not having respected the obligation to respect rights and domestic legal effects (Articles 1

59 60 61 62

Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 56 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 56 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 56 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 57

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and 2).63 The Inter-American Convention on Forced Disappearance of Persons Articles I and II had also been violated, (which Guatemala had signed in 1994 and ratified in 1999), which Guatemala furthermore acknowledged.64 The Court also found that Molina Theissen’s family members “were victims in their own right” and that the government had violated their rights according to the American Convention on Human Rights Article 5(1) and (2), Article 8, Article 17, Article 25, Article 1(1) and Article 2.65 Since the government accepted responsibility for having violated these rights concerning Molina Theissen, the issue of reparation or the violations’ legal consequences became what the Court centred on. Instead the landmark Gómez Paquiyauri Brothers case became the first international case that an international tribunal adjudicated, the Inter-American Court of Human Rights, which addressed the substantive rights of children in the context of an armed conflict.66 The Gómez Paquiyauri Brothers case also became the first case where an international tribunal recognized Peru’s internal armed conflict.67 Furthermore, this “was the first case where the Peruvian State was made accountable under international law for violating the rights of children”.68 The case was about agents from the Peruvian National Police at the height of the armed conflict in 1991 having illegally detained two brothers, Emilio (14 years) and Rafael (17 years) Gómez Paquiyauri, and then tortured them and within less than an hour from having detained them extra-legally executed them.69 Thereafter the National Police had publically presented them as terrorists and alleged that they had died in an armed confrontation.70 The context in Peru (at the time these violations took place) and which the Court presented as a proven fact was that:71 63 64 65 66

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Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 58, footnote 191 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 58, footnote 191 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 58, footnote 191 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 58; Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 61 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 454 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 99 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 67.k, and para. 99 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 67.a), 67.b), 67.c), footnotes omitted

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67.a) Between 1984 and 1993 there was a confl ict in Peru between armed groups and agents of the police and military forces, in the midst of a systematic practice of human rights violations, including extra-legal executions, of persons suspected of belonging to armed groups. These practices were carried out by State agents following orders of military and police commanders. 67.b) The state of emergency was declared several times during this period, including the Province of El Callo. 67.c) Specifically, a plan known as the “Cerco Noventiuno”, designed to capture and execute the principals of terrorist acts, was carried out in 1991.

The Court held the view that:72 76.

… the responsibility of the State is exacerbated by the existence in Peru, at the time of the facts, of a systematic practice of human rights violations, extralegal executions, of persons suspected of belonging to armed groups, carried out by agents of the State following orders of military and police commanders. … Said violations violate international jus cogens. Likewise, the fact that the alleged victims in this case were children must be taken into account in establishing aggravated responsibility.

Considering whether the detention of the Gómez Paquiyauri brothers was a violation of Article 7 of the American Convention, the Court stipulated that with regards to the brothers it had been proven that their detention “took place within the framework of a systematic practice of human rights violations, including extra-legal executions of persons suspected of belonging to armed groups, carried out by State agents following orders of military and police commanders. Th is type of operation is incompatible regarding for basic rights, including the presumption of innocence, existence of a court order to conduct a detention and the obligation to bring the detainees before a competent judicial authority.”73 The Court made clear in the Gómez Paquiyauri Brothers case that governments have obligations to protect children from being exposed to human rights violations, also in times of armed conflict.74 Here the Court analysed the context within which the human rights violations took place, and for the first time in a case involving children there was a coming together of international human rights law and international humanitarian law as a result of this context as “the rights violated in the case were held to be so fundamental to international law that they belong to a set of rights protected both in times of peace and in times of 72 73 74

Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 76 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 88 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 6

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war”.75 In terms of the violations being so essential to international law the Court did not differentiate between situations of peace or conflict, because these rights are valid and applicable at all times, and cannot be derogated from. The Gómez Paquiyauri case was in this regard the same as the Bámaca case as it pertained to “the prevalence of the safeguard of the non-derogable rights in any circumstances (in times of peace as well as of armed conflict)”.76 In examining the state of emergency that had existed in Peru at the time of the deaths of the Gómez Paquiyauri brothers, the Court argued that:77 85.

… the Court has pointed out before that suspension of constitutional liberties cannot exceed what is strictly necessary and that “any action on the part of the public authorities that goes beyond those limits, which must be specified with precision in the decree promulgating the state of emergency, would also be unlawful” ... In this regard, the limitations imposed on acts by the State answer to “the general requirement that in any state of emergency there be appropriate means to control the measures taken, so that they are proportionate to the needs and do not exceed the strict limits imposed by the Convention or derived from it.” … Therefore, the emergency cannot be considered a justification in face of acts such as those examined here.78

In the context that the brothers’ detention was arbitrary the Court again took note of the fact the Gómez-Paquiyauri brothers were minors stipulating that:79 89.

75 76 77 78 79

… Said detention was aggravated by the fact that the detainees were tortured and, finally, killed, in the framework of the so-called “anti-terrorist struggle,” in face of the criminal acts that had taken place that day, in which the Gómez Paquiyauri brothers were not involved … On the other hand, the alleged victims, when they were detained, tortured, and extra-legally executed, were unarmed, defenseless, and they were minors, which adds to the gravity of the arbitrary detention in the instant case.

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 170 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 170 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 85 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 85 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 89

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The Court found that in detriment to the two brothers Gómez Paquiyauri there had been a violation of Article 7 of the American Convention in combination with Article 1(1) of the same Convention.80 With regards to that the brothers had been tortured the Court made reference to that it had beforehand stipulated that torture was “strictly forbidden by International Human Rights Law” and stated that:81 111. … Prohibition of torture is absolute and non-revocable, even under the most difficult circumstances, such as war, the threat of war, “the struggle against terrorism,” and any other crimes, state of siege or emergency, domestic confl ict or upheaval, suspension of constitutional liberties, domestic political instability, or other public calamities or emergencies. 112. An international juridical system of absolute prohibition of all forms of torture, both physical and psychological, has been established, and it is today part of the sphere of international jus cogens.

The Court stipulated that the torture that had been carried out was intentional and that these acts had inflicted grave physical and mental suffering on the victims.82 Thus, the Court taking into account that the brothers were minors found that there were “evident signs of torture” according to Article 2 of the InterAmerican Convention against Torture, and that this was to the detriment of their rights in violation of Article 5 in combination of Article 1(1) of the American Convention, and in accordance with Articles 1, 6 and 9 of the Inter-American Convention against Torture.83 The Court had ruled in the case of Villagrán Morales et al. that immediate relatives of the victims in certain cases are victims in their own right, a principle that the Court re-affirmed and established as a well-grounded principle with the Gómez Paquiyauri Brothers case in which it stated that:84 118. Regarding the next of kin of the victit5 6bms of human rights violations, this Court has pointed out, on previous occasions, that they may be, in turn, victims. … In the sub judice case, violation of the right to psychological and moral integrity of the next of kin of Rafael Samuel and Emilio Moisés Gómez 80 81 82 83 84

Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 100 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 111 and 112, footnotes omitted Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 115 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 117 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 150-151

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Paquiyauri is a direct consequence of their unlawful and arbitrary detention on June 21, 1991; of the maltreatment and torture they suffered during their detention, and of the death of both approximately one hour after they were detained, as well as of officially presenting the facts as “a confrontation with subversives.” All this generated suffering and powerlessness of their immediate next of kin vis-à-vis the State authorities, for which reason, in this case, the next of kin can be considered the victims of cruel, inhumane and degrading treatment, … in violation of Article 5 of the American Convention. 119. For the aforementioned reasons, the Court finds that the State violated Article 5 of the American Convention, in combination with Article 1(1) of this same Convention, to the detriment of Marcelina Paquiyauri Illanes de Gómez; Ricardo Samuel Gómez Quispe; Marcelina Haydeé, Ricardo Emilio, Carlos Pedro, Lucy Rosa and Miguel Ángel, all of them Gómez Paquiyauri; and Jacinta Peralta Allccarima. …

As Feria Tinta has importantly argued by approaching the concept of victims in this way, the combination of the legal arguments, the experts’ views on trauma and the deliberations of the Court all were part of having “justice correspond to the degree of traumatisation that takes place in gross human rights violations”.85 With regards to the right to life principle in Article 4 of the American Convention the Court stated that:86 124. … This obligation has special modes regarding to minors, taking into account the rules on protection of children set forth in the American Convention and in the Convention on the Rights of the Child. [Here the Court made reference to the Bulacio case and the Villagrán Morales et al., the Street Children, case] As guarantor of this right, the State is under the obligation to forestall situations that might lead, by action or omission, to abridge it.

85 86

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 151 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 124; With regards to the right to life “the Court has pointed out that when there is a pattern of human rights violations, including extra-legal executions fostered or tolerated by the State, contrary to the jus cogens, this generates a climate that is incompatible with effective protection of the right to life. This Court has established that the right to life is fundamental in the American Convention, because safeguarding it is crucial for the realization of the other rights. […] When the right to life is not respected, all the other rights are meaningless. The States have the obligation to ensure the creation of the conditions necessary to avoid violations of this inalienable right and, specifically, the duty of impeding violations of this right by its agents.” para. 128

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Thus the Court found that the Peruvian state violated the right to life according to Article 4 in combination with Article 1(1) of the American Convention to the detriment of the two brothers.87 The Court also found that the Peruvian state had violated the brothers’ rights to fair trial and to judicial protection according to Articles 8 and 25 in combination with Article 1(1) of the American Convention, as well as Article 8 of the Inter-American Convention against Torture.88 Furthermore the Court found that to the detriment of the brothers’ next of kin, their parents and siblings, the state had violated Articles 8 and 25 in combination of Article 1(1) of the American Convention. This case was the first time that the Court analysed “the meaning of Article 19 for the protection of children in contexts of armed conflict”.89 As Feria Tinta states in this way the Court “set a worldwide precedent for the obligations of the States – even in times of war – towards children”.90 The Court made explicit reference in the case to the UNCRC stipulating “that cases in which the victims of human rights are children are especially grave, as their rights are reflected not only in the American Convention, but also in numerous international instruments, broadly accepted by the international community – notably in the United Nations’ Convention on the Rights of the Child – that ‘establish the duty of the State to adopt special protection and assistance measures in favor of children under their jurisdiction’”.91 Making reference to the best interests of the child principle the Court stated that this principle was based “on the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential”.92 The Court stated with regards to Article 19 that:93 164. Article 19 of the American Convention places the States under the obligation to adopt “measures of protection” that they require as children. The concept of 87 88 89 90 91 92

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Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 133 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 156 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 6 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 6 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 162 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 163, the Court here made reference to the Legal Status and Human Rights of the Child and the Bulacio Case, footnote 124 Inter-American Court of Human Rights, Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 164

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“measures of protection” may be interpreted taking into account other provisions. This Court has said that “the interpretation of a treaty must take into account not only the agreements and instruments related to the treaty (paragraph 2 of Article 31), but also the system of which it is part (paragraph 3 of Article 31). …

Here the Court made reference to the fact that international human rights law in particular evolves over time and that “human rights treaties are living instruments whose interpretation must consider the changes over time and present-day conditions”.94 Again the Court made reference to the corpus juris with regards to the protection of children, and stated that “[b]oth the American Convention and the Convention on the Rights of the Child are part of a broad international corpus juris for protection of children that aids this Court in establishing the content and scope of the general provision defined in Article 19 of the American Convention”.95 In examining Article 19, the Court referring to the UNCRC argued that its provisions constituted obligations on the states parties including Peru, and with regards to this present case specifically Article 2 (the non-discrimination principle), Article 6 (right to life) and Article 37 (the right not to be tortured) of the Convention were also applicable to the situation in the Gómez Paquiyauri Brothers case, and that these provisions could help clarify what kind of behaviour that the Peruvian state should have exhibited in the case.96 The Court stated that these three provisions made it possible for the Court to determine the scope of the “measures of protection” which Article 19 of the American Convention provides for.97 The Court stated that many measures stood out such as measures regarding non-discrimination, prohibition of torture, and “the conditions that must exist in cases of deprivation of the liberty of children”.98 The Court stated that with regards to detention of minors, the Court has beforehand stated and

94 95

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Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 165 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 166: here the Court made reference to the Legal Status and Human Rights of the Child and the “Street Children” case (Villagrán Morales et al.) Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 167 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 168 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 168

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several international instruments include that detention of minors must be exceptional and only used for the briefest possible period.99 Furthermore the Court in considering Article 19 reaffirmed with regards to Article 5 of the American Convention and the provisions of the Inter-American Convention against Torture (Articles 1, 6 and 9) that “the fact that the alleged victims were children requires applying the highest standard in determining the seriousness of actions that violate their right to humane treatment”.100 The Court again made clear that “the obligation of the State to respect the right to life of every person under its jurisdiction has special modalities in the case of minors, as follows from the provisions on the protection of children set forth in the American Convention and in the Convention on the Rights of the Child”, and it becomes an obligation to “prevent situations that might lead, by action or omission, to negatively affect it”.101 Based on its analysis the Court found that the Peruvian state had violated to the detriment of the two Gómez Paquiyauri brothers the right to special measures of protection for minors in accordance with Article 19 of the American Convention.102 Importantly here as well as in other cases, the Court recognized that victims are parties in the proceedings who have the right to make “autonomous representations on the facts and the applicable law” in the case pertaining to them apart from the Commission.103 The Court developed and consolidated the principles of the Gómez Paquiyauri Brothers in the cases of Massacre of Mapiripán v. Colombia and Ituango Massacres v. Colombia, and with regards to internal armed conflicts through these cases the Court has created critical jurisprudence on the protection of the rights of children.104 In the case of the Massacre of Mapiripán v. Colombia, a paramilitary group had committed very brutal atrocities against the civilian population including children. Two children had been assassinated in a massacre that took place in Mapiripán, and out of 19 identified surviving relatives nine had been minors

99 100 101 102 103 104

Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 169 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 170 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 171 Inter-American Court of Human Rights, Case of Gómez-Paquiyauri Brothers v. Peru, Judgment of July 8, 2004, para. 173 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 82-83 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 8

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when the massacre occurred.105 While Article 19 of the American Convention had not been brought up by the Commission the representatives of the victims did, but the government of Colombia accepted no responsibility for violations of Article 19 of the American Convention. As a result of the massacre the children had become orphaned and displaced all of which had violated their physical and psychological integrity, and since the brutality of the massacres had such severe consequences for the children, the Court decided that there was a need to examine the situation for the children, and the Court stipulated with regards to the children that:106 156. The special vulnerability caused by their very condition of being children becomes even more evident in a situation of internal armed conflict, as in the instant case, since they are the least prepared for adapting themselves or responding to such a situation and, sadly, they are the ones who suffer from its excesses in an inordinate manner. …

The Court when deliberating on the duty of special protection of children noted that the Colombian Constitutional Court had in this regard in a decision in 1995 referred to Article 4(3) of Additional Protocol II (1977) and had argued that:107 The 3rd section of article 4 of Protocol II of the Geneva Conventions confers privileged treatment upon children, for the purpose of giving them the care and the help that they need, especially with regard to education and family unity. Likewise, it is pointed out that minors under 15 years of age will not be conscripted into armed forces or groups and it will not be permissible for them to take part in hostilities. The Court considers that this special protection for children is in full accord with the Constitution since not only are they in a situation of demonstrated vulnerability (CP art. 13) when faced with armed conflicts but also, the Letter confers priority upon the rights of children.

In the Mapiripán case the Inter-American Court held that the state of Colombia had not lived up to its obligation to protect the children before, during and after the massacre.108 The reasoning of the Court is important to note. The Court 105 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 265 106 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 268-269 107 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 268, The Inter-American Court on Human Rights in the Case of Mapiripán at para. 153 taking note of Sentencia C-225/95 de 18 de mayo de 1995, emitida por Corte Constitucional de Colombia, para. 37 108 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 269

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began with saying that within the context of the internal armed conflict it was well known also by the government of Colombia that Mapiripán was located in a region that was “characterized by high degrees of violence”.109 The Court held that even though the government knew about the high levels of violence that the population “particularly its boys and girls” were exposed to, the government did not provide any protection to the population of Mapiripán which was its duty.110 The Court held that the children of Mapiripán were especially affected by the violence exhibited during the massacre and here the Court argues about how the violence affected the children:111 160. … many of them saw how their relatives – mostly their fathers – were taken away, they could hear their cries for help, they witnessed the remains of discarded corpses with throats cut or decapitated and, in certain cases, they knew what the paramilitaries had done to their relatives.

The Court worked to identified minors who had been murdered or removed during the massacre, and in this regard identified the minors Hugo Fernando (16 years) and Diego Armando Martínez Contreras (15 years) that had been “either executed or removed, and there are also in existence affirmations of witnesses of the events that make reference to unidentified children who had been executed, including some only a few months old”.112 The Court furthermore identified the cases of Carmen Johanna Jaramillo Giraldo, Gustavo Caicedo Contreras and Maryuri Caicedo Contreras who had survived and were children at the time of the massacre, and who described that the paramilitaries were threatening them in the days after the massacre when they had attempted to go after or look for their relatives.113 Here, Gustavo Caicedo Contreras, seven years old when the massacre took place, said that “they [the paramilitaries] did not care if they were children or infants, they took them away for the sole purpose of asking about the relative ... that they were after”.114 As a result of the massacre many families became displaced and did not return to Mapiripán. The Court identified apart from Carmen Johanna Jaramillo 109 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 159 110 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 159 111 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270 112 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 160 113 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 160 114 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 160

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Giraldo, Gustavo Caicedo Contreras and Maryuri Caicedo Contreras, five other people who had been minors at the time of the massacre and who had become displaced, and explained that these minors had been separated from their parents and families and that they had needed to leave behind all of their belongings and homes and had as a result of the displacement experienced rejection, hunger and cold.115 Gustavo Caicedo Contreras explained how he felt about being rejected as a minor and as a displaced person and that “when he was in Bogotá the people looked at him … in a strange way because he was a displaced person”.116 The Court argued regarding the responsibilities of the state as concerns the right to life that the state has an obligation to respect the right to life of every person under its jurisdiction.117 This obligation when it comes to the responsibility towards children gives rise to “special modalities”, which meant that “it becomes an obligation [for the state] to ‘prevent situations that could lead, either by actions or dereliction, to the impairment of that right’”.118 The Court held that in the Mapiripán massacre case:119 162. … the massacre and its consequences created a climate of permanent tension and violence that impaired the right of the children of Mapiripán to a life of dignity. As a result, the Court considers that the State did not create the conditions or take the measures necessary so that the children in the instant case might have and develop a life of dignity, but rather that they have exposed them to a climate of violence and lack of safety.

The result was that the Court held that the state of Colombia was in violation of Article 19 in connection with Articles 4(1), 5(1) and 1(1) of the American Convention with regards to the children who had been identified by name.120 The Court furthermore held that the state of Colombia was in violation of Article 19 in connection with Articles 22(1), 4(1) and 1(1) of the American Convention with re-

115

Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 161 116 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 270, para. 161 117 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 271, para. 162 118 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 271, para. 162 119 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 271, para. 162 120 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 271

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gards to those children who as a result of the massacre in Mapiripán had become displaced and “whose names had been individualized during the litigation”.121 In the Ituango Massacres v. Colombia case, first a victim, Wilmar de Jesús Restrepo Torres, was identified as having been killed by a paramilitary group when they made an incursion into the districts of El Aro and La Granja to conduct massacres.122 The legal representatives of the victims claimed that all the allegations that they had put forward with regards to Wilmar de Jesús Restrepo Torres were “applicable to all other children who were direct victims of the incursion by the paramilitary group and the agents of the Colombian State in La Granja and El Aro and also to the children who were members of the families who were victims of the violations committed during those events …”.123 However the victims’ representatives and the Inter-American Commission had not identified more child victims than Wilmar de Jesús Restrepo Torres, and to this regard the Court held “that it considered as victims under Article 19, all the children who could be identified from the facts indicated in the Commission’s application”.124 In the end, five more children were identified by the Court as having been victims in the Ituango massacres in various ways. In this respect, in the Ituango Massacres case the principle was reaffirmed by the Court that “Article 19 of the American Convention should be understood as a complementary right that the Convention establishes for individuals who need special measures of protection, owning to their stage of physical and emotional development”, and here the Court stipulated:125 In this regard, cases such as this one are particularly serious, when the victims of human rights violations are children who have special rights, arising from their condition, which entail specific obligations on the part of the family, society and the State.126 On this issue, the principle of the best interest of the child rules, and this is

121

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 271 122 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 272 123 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 272 (e) 124 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 273 125 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 273 126 Here the Court made reference to Cf. Juridical Status and Human Rights of the Child; cf. Case of the “Mapiripán Massacre”; and the Yean and Bosico Children and the Case of the “Juvenile Reeducation Institute”, in Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 273

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based on the dignity of the individual, on the special characteristics of children, and on the need to allow them to develop their full potential.127

The principle of aggravated state responsibility was invoked by the Court since some of the victims were children which was a factor that the Court took into consideration here:128 246. When determining aggravated responsibility, it should be taken into consideration that the alleged victims in this case, indicated in the previous paragraph, were children. … Thus, the Court considers it necessary to call attention to the consequences of the brutality with which the facts in this case were committed in relation to the children of La Granja and El Aro, who experienced this violence in a situation of armed conflict, who have been partially orphaned, who have been displaced, and whose physical and psychological integrity has been violated. The special vulnerability, owning to their condition as children, is even more evident in a situation of internal armed conflict, as in this case, because children are less prepared to adapt or respond to this type of situation and suffer its excesses disproportionately.

Since only six children had been identified in the Ituango case, the Court found that it was not possible to give adequate recognition of victimization to all children who had been victimized, and, in this regard, the Court held that other children than those six children had been victims of the massacre, stipulating further:129 247. From the body of evidence and, in particular, from the statements of the inhabitants of Ituango, it is clear that there were many children who witnessed the events of El Aro and La Granja. However, they were not individualized in the proceedings before the Court as children. Therefore, in the instant case, the Court does not have the evidence necessary to declare a violation of Article 19 of the Convention to the detriment of the children other than Wilmar de Jesús Restrepo Torres, Jorge Correa Sánchez, Omar Daniel Pérez Areiza, José Leonel Areiza Posada and Marco Aurelio Areiza Posada. …

127 Here the Court made reference to Cf. Juridical Status and Human Rights of the Child; cf. Case of the “Mapiripán Massacre”; the Yean and Bosico Children case, and the Case of the Indigenous Community Yakye Axa, in Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 273 128 See in Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 273-274 129 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 274

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As more cases regarding the protection of children’s rights in the context of whole communities becoming victimized will arise, specific efforts will be required to identify the victims.130 The Court has also ruled on the situation for children in post-conflict societies such as in the case of Servellón García and others v. Honduras which concerned the killings and torture of four children and youth.131 Honduras had not experienced a civil war, but was embroidered into the armed conflicts that were going on in the region in the 1980s where “[c]ounterinsurgency forms of repression also reached Honduran society. The Honduran army used enforced disappearances, death squads, and extrajudicial executions to eliminate what they considered leftist elements in society.”132 Marginalized children and youth in Honduras were subjected to the practice of social cleansing in the post-conflict period in a society where extreme violence had been perpetrated. The consequences from such a long-term violent period on Honduras’ society amounted to how Judge Cançado Trindade described such societies as experiencing a “clear decomposition of the social fabric”, which in the case of Honduras was reflected in the social cleansing practice.133 This was a phenomenon that many Central American countries had experienced, and in the post-conflict period new problems such as organized crime, drug trafficking and civil security took the place of the regional conflicts and “national security” problems.134 The old counterinsurgency structures that had existed during the conflicts outside of the law were still in place as they were transforming themselves, resulting in the disappearances of people and extrajudicial executions of those who were deemed to be against the state. While various death squads, paramilitary and “vigilantes” had made up these “structures created outside the law” as “part of the ‘security’ system of the State” during the different periods of armed conflict, they now had evolved into new illegal forms

130 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 274: A related issue with regards to providing reparations to victims of the armed conflict in Colombia, is that it has been very difficult to establish the identification of the victims of violence, and especially with regards to the identification of the internally displaced, Inter-American Commission Hearings on Colombia, Washington D.C., October 10, 2007 131 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 351 132 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, Footnote 605, p. 351 133 Judge Cançado Trindade in Int-Am. CT H.R., Sevellón García and Others vs. Honduras case, in Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 351 134 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 351

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of social control linked to the state or a third person.135 The context where the killings and torture of the four children and youth were carried out in the case of Servellón García and others v. Honduras was one of extrajudicial executions of minors and youths in situations of risk.136 In Honduras between 1995 and 2002 about 904 minors had been killed on suspicion that they had been members of different gangs (so-called maras), and as the Court stated in the case:137 79(2) That context of violence is materialized in the extrajudicial killings of children and youngsters in risky situations, both by state agents as well as by individual third parties. In this last case, the violence occurs, among others, within the young gangs or between rival gangs or as a consequence of the action of alleged clandestine groups of social cleaning. 79(3) The violence has obeyed to a common pattern in relation to: a) the victims, who are children and youngsters in risky situations; b) the cause of the deaths, which are extrajudicial killings characterized by extreme violence, produced with fire arms and cutting and thrusting weapons, and c) the publicity of the crimes since the victims’ bodies are exposed to the population. 79(4) Those responsible for the crimes are reported by the police as unidentified persons and the investigations carried out with the objective of attributing responsibility are generally not able to identify the authors of said crimes. …

Being a member of a gang or maras was in itself stigmatizing, a stigmatization that made these children even more vulnerable and led to that they were put at further risk. As the former Criminal Judge and former Assistant District Attorney of the Human Rights Public Prosecutors’ Office, an expert witness before the Court, explained about the situation:138 … The violation to the right to life of children and youngsters in Honduras have their maximum expression in the summary killings that have been occurring in the country since the beginning of the nineties, but that started receiving more public attention at the end of this decade. Honduran children and youngsters, especially the poor, live in violent contexts, in which they are the main victims of a war where the authorities, adults, the society in general, and youngsters themselves are active protagonists of the wiping out of hundreds of children, teenagers, and youngsters

135 136 137 138

Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 352 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 354 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 354 Feria Tinta, M., The landmark rulings of the Inter-American Rights on the Rights of the Child, 2008, p. 355-356

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murdered as a consequence of the stigmatization of being a member of a mara or gang. …

The Honduran population in 2003 was constituted by 50.4 per cent who were under 18 years of age and 66 per cent of the children between 0–14 years of age were living under the poverty line.139 The case reflected that the society at large chose to deny the reality of these children and youth and put the blame for the increased insecurity after the end of the conflict onto them. While many gang members were perpetrators of different crimes themselves, it was a myth, experts before the Court in this case stated, that the main protagonists of public insecurity were the youth gangs, as there were other actors in the society that engaged in criminal activities in contrast to what the media portrayed all resulting in the overstating of the youth gangs’ role in the social insecurity.140 Instead the stigmatization of the children and youth as being members of a gang or maras and being viewed as a “deviant sector of the society” put them at great risk of being subjected to extrajudicial executions.141 A report presented to the Court in the case showed that 66 per cent of those children and youth that were killed in a violent manner were not members of a gang or maras, and they had no criminal records registered.142 It was emphasized during the trial before the Court that the children and youth in Honduras belonged to a very vulnerable sector in the society, where many lived alienated and excluded from society in severe poverty, and that “they were on the edges precisely because since birth they had been denied their basic rights and been forced to live on the violent margins of society”.143 One of the judges of the Court, Judge Cançado Trindade, stated that “[i]n the name of public security the most vulnerable, alienated, and excluded, the ‘undesirable’ …, are killed with impunity”.144 As was pointed out in the abovementioned report presented to the Court “[a]dults have seemed indifferent or have responded wrongly, considering them ‘objects of compassion and repression at the same time, instead of fully legal persons’”.145 This further meant according to the Court that the state had 139 140 141 142 143 144 145

Expert witness in the case in Feria Tinta, M., The landmark rulings of the InterAmerican Court of Human Rights on the Rights of the Child, 2008, p. 357 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 357 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 357 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 359 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 358 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 358 See report by Leo Valladares Lanza, National Human Rights Commissioner in Honduras 2002, the special report on the violent deaths of boys, girls and teenagers in

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a responsibility towards these children and youth, which the state had failed to live up to. Because some of the victims were minors and taking into account the superior interest of the child, the Court argued in the case in relation to Article 19 of the IACHR that:146 116. The State has the obligation to ensure the protection of children and youngsters affected by poverty and socially alienated [here the Court referred to the Health and development of teenagers within the context of the Convention of Children’s Rights, July 21, 2003, UN Document CRC/GC/2003/4] and, especially, to avoid their social stigmatization as criminals. It is convenient to point out, as did the Court in the Case of the “Street Children” (Villagrán Morales et al.), that if the States have elements to believe that the children in risky situations are affected by factors that may lead them to commit criminal acts, or it has elements to conclude that they have committed them, in specific cases, they must go to an extreme with criminal prevention measures. [Here the Court referred to the “Street Children” Villagrán Morales et al. case and to the Guidelines from the United Nations for the prevention of juvenile delinquency (Riad Guidelines)] The State must assume its special position of protector with greater care and responsibility, and it must take special measures oriented toward the principle of the child’s greater interest. [Here the Court referred to the cases of the Gómez Paquiyauri Brothers, Bulacio, and “Street Children” (Villagrán Morales et al.) and the Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02.] 117. The facts of the present case occurred in reason of the victims’ condition of people in situations of social risk, which proves that the State did not provide Marco Antonio Servellón García or Rony Alexis Betancourth Vásquez with an environment that would protect them from violence and abuse, nor did it allow them access to basic services and goods, in such a way that said absence without doubt deprived the minors of their possibility to emancipate, develop, and become adults that could determine their own future.

In the end Honduras accepted responsibility for having violated to the detriment of all the victims Articles 7(1), 7(2), 7(3), 7(4) and 7(5), 5(1), 5(2), and 4(1) of the IACHR, and with regards to those individuals under the age of 18 years, Marco Antonio Servellón García and Rony Betancourth, in addition Articles 5(5) and 19 of the IACHR.147 These were Article 7 on the right to personal liberty and security, Honduras, in Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 359 146 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 367-369 147 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 359

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Article 5 on the right to humane treatment, Article 4 on the right to Life, Article 19 on the rights of the Child and also Article 1(1) on the obligation to respect rights. 5.2.1.

The Concept of Victims and the Inter-American Court of Human Rights

The concept of victims has been widened by the Court also within the context that the Court has specifically emphasized the special vulnerability of children in situations of internal armed conflict.148 This principle was first applied in cases regarding children in the Villagrán Morales et al. case of 1999, then in the Molina Theissen case, the Gómez Paquiyauri Brothers case, the Servellón García and others case, the Yean and Bosico children case, the Massacres of Ituango case, the Massacre of the Mapiripán case and the Vargas Areco case.149 It is within this context that the principle of “the relatives of the victims of certain human rights violations can, in their own right, be victims of human rights themselves” needs to be seen and which was as noted reaffirmed by the Court in the Mapiripán Massacre case in order to ensure the best protection of children in a situation of armed conflict.150 In this case not only the two children killed, but all the children that were identified as being relatives of the adult individuals that had been killed during the massacre were acknowledged as victims, as they as a consequence had endured forced displacement, fear, threats, psychological and physical harm and were still partly orphaned.151 In the Mapiripán Massacre case and the Ituango Massacres case, by its application of a wider notion of who constitutes a “victim”, the protection of individuals among which were children was guaranteed by the Court, which would not have been possible if a more narrow approach had been applied.152 Judge Cançado Trindade argued in a separate opinion in the case of Ituango Massacres v. Colombia in favour of widening the circle of victims that:153

148 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 22-25: See for instance the Massacre of Mapiripán case. 149 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 19-24 150 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 24-25 151 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 25 152 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 275 153 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 275-276

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51.

This judgment of the Court has thus, in my opinion, correctly contributed to expanding the concept of victims of grave human rights violations: all those affected by the massacre are victims, with juridical consequences that vary from one case to another. Consequently, the reparations are also different; they include, for example the guarantee of voluntary return of those forcibly displaced as a form of collective non-pecuniary reparation (and I consider that this is extremely important in the context of the immense human tragedy that afflicts Colombia). … In this way, an effort is made to mitigate the anguish of the surviving victims (whose lives will never be the same after the Ituango massacres), and to enhance their connection with their dead, by honoring the memory of the latter. And, finally, an effort was also made to reaffi rm the necessary primacy of law over brute force.

In the same case, Ituango Massacres v. Colombia, Judge Sergio García Ramírez argued in a separate opinion with regards to direct and indirect victims that:154 12.

… In the one case, for example, the person who loses his life or suffers torture is the original victim of the violation of Articles 4 and 5 of the Convention. His next of kin are, or may be, victims of the violation of Article 5 owing to the severe impairment of their physical or moral integrity as a result of the loss of life or torture. Finally, there may be victims of the after effects of the original act with their own entity; for example, owing to the denial of access to justice for the investigation and prosecution of those responsible. The individuals corresponding to these three categories are all victims – without any need for further qualification – of the violation suffered.

As a result of the Mapiripán Massacre and the Ituango Massacres cases the Court recognized that people can be victimized in different ways and at various degrees, and by adopting such an approach the Court was able to correctly evaluate how children had been victimized.155 In these cases, that the children who had not been executed but who as members of the victimized communities that had been displaced as a result of the attacks had been especially affected by the situation because of them being children was acknowledged by the Court, and Article 19 of the IACHR had therefore been applied to that effect.156 As Feria Tinta has stated, “[a]s a consequence, the Court effectively applied the Convention to the best protection of children growing up in the midst of an armed conflict of the nature of

154 155 156

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 276-277 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 277 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 277

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Colombia’s”.157 In terms of the protection of children the Court here underlined the right of children to live a life in dignity in situations of internal armed conflict such as in Colombia and made sure that there indeed were legal consequences for the crimes committed against children within that context.158 The Court established for the first time in the case Villagrán Morales et al., the principle that situations where children are the victims of human rights violations are of particular seriousness.159 This principle has further been reaffirmed in the jurisprudence by the Court regarding Article 19 of the IACHR in the Bulacio case, the Gómez Paquiyauri Brothers case, the Yean and Bosico children v. Dominican Republic case, the Servellón García and others v. Honduras case, the Mapiripán Massacre case and the Massacres of Ituango v. Colombia case.160 Furthermore, the Court decided in the Gómez Paquiyauri Brothers case and in the Ituango Massacres case that if children are the victims of human rights violations rising to the level of crimes against humanity, this fact that the victims are children establishes the application of the principle of aggravated responsibility for states.161 The Court decided indirectly on the issue of child soldiers in the case of Vargas Areco v. Paraguay, which was a case about a minor, Gerardo Vargas Areco, who had at the age of 15 years voluntarily been recruited to do military service.162 He had been arrested for not having returned to his barracks after a Christmas visit to his family. Vargas Areco had been to the sickbay of the barracks and on his way from there had been shot to death in the back by a non-commissioned officer. It was alleged that he had tried to escape detachment and that was the reason as to why he had been shot. The family got the body of their son in a sealed coffin and was asked not to open the coffin by the military. However, the family opened the coffin and found that the boy had been severely tortured, which was later confirmed by an independent expert. It was never established why Vargas Areco had been tortured, and the circumstances surrounding his death were never clarified. In this respect the Court ruled that the relatives of Vargas Areco were victims in

157

Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 277 158 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 277 159 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 32 160 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 32 161 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 32-33 162 Feria Tinta, M., The landmark rulings of the Rights on the Rights of the Child, 2008, p. 373

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their own right, which was a violation of Article 5(1) of the IACHR.163 This was because their psychological and moral integrity had been affected in a negative way. That it is the state that has the obligation to guarantee within its jurisdiction the protection of the rights of all persons, an obligation that is of particular importance with regards to minors, was confirmed by the Court which held in this context that:164 77.

… in cases of assumed extra-judicial executions, the authorities of a State must initiate ex officio and without delay, a serious, impartial and effective investigation, once they have become aware of the event. … This obligation must be carried out even with more care when it is a case of an extra-judicial execution of a minor, given his/her condition of inherent vulnerability, especially if s/he is under the custody or guardianship of the State …

It was the state of Paraguay that had the obligation to exhume Vargas Areco’s body to investigate what had taken place the Court held, as for instance given the discrepancies from a photo of his body it was not clear what had occurred.165 The Court stated that the government of Paraguay had not carried out its duty to investigate within a reasonable time the torture allegations according to Articles 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, or according to Article 8 (1) of the IACHR.166 The Court found the state of Guatemala to have violated Articles 4 and 5(1) together with 1(1) of the IACHR and Articles 6 and 8 of the Inter-American Convention to Prevent and Sanction Torture from 1993, to the detriment of Vargas Areco’s relatives, as well as Articles 8(1) and 25 of the IACHR to the detriments of the relatives of Gerardo Vargas-Areco.167 5.3.

The United Nations Committee on the Rights of the Child and Guatemala

In its Concluding Observations after having reviewed the report on the situation of children under the UN Convention on the Rights of the Child (CRC) of the 163 164 165 166 167

Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 387 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 380-382 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 382-283 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 384 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 380, 382, 384; and Inter-American Commission on Human Rights, The rights of the child in the Inter-American human rights system, Second edition, Chapter 1, General Information, para. 187

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government of Guatemala, among its recommendations in October 2010 under the heading “Children and armed conflict” the UNCRC Committee expressed its concern that Guatemala had not adopted adequate measures “to fully comply with the reparations judgements of the Inter-American Court of Human Rights in cases relating to child victims, such as the Marco Antonio Molina-Theissen case of 3 July 2004 and the Villagrán Morales and other case of 26 May 2001”, and recommended here that the state of Guatemala “fully comply” with these decisions by the Court.168 In addition the Committee recommended that the Early Warning System Law of 2010 be implemented, and that the Guatemalan government establish a DNA database “to facilitate research for forcibly disappeared children, in particular those who disappeared during the internal armed conflict”.169 That Guatemala still had not prohibited and criminalized child recruitment of children under the age of 18 years into the armed forces and armed groups, nor prohibited their direct participation in hostilities, which the Committee had recommended in 2007, was raised by the Committee again in its Concluding Conclusions of October 2010, and in this regard the Committee again reaffirmed the recommendation it had issued back in 2007 that the government:170 a)

Explicitly prohibit by law the recruitment of children under the of 18 years into armed forces and armed groups and their direct participation in hostilities;

168 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 86-87; At its fi ft y-fourth session in May-June 2010 the CRC Committee was to have a dialogue with the Guatemalan government, and where the government would be given the opportunity to provide information on a wide range of issues concerning the children which the Committee viewed as priority issues. However, due to the eruption of the Pacaya volcano on May 27, 2010 and the tropical storm Agatha that hit the country on May 29, 2010, the dialogue and Committees considerations of the 3rd and 4th reports were postponed, Committee on the Rights of the Child, Fift y-fourth session 24 May-11 June 2010, Implementation of the Convention on the Rights of the Child, List of issues to be taken up in connection with the consideration of the third and fourth periodic reports of Guatemala (CRC/C/ GTM/3-4), CRC/C/GTM/Q/3-4, 5 February 2010. 169 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 87 170 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 84-85: For 2007 see CRC/C/OPAC/GTM/CO/1, para 7

The Inter-American Human Rights System as It Pertains to Children

b)

c)

Explicitly criminalize, by reform of the Penal Code, violations of the provisions of the Optional Protocol on children in armed confl ict regarding the recruitment and involvement of children in hostilities; Establish extraterritorial jurisdiction for these crimes when they are committed by or against a person who is a citizen of or has other links with the State party.

The Committee noted that the government of Guatemala was creating a National Plan of Action for children in street situations, but expressed concern about the many children in street situations, and that domestic violence often in combination with sexual abuse was a factor as to why many children left home.171 In this regard the Committee recommended the Guatemalan government to:172 a)

b)

c) d) e)

Increase its efforts to take preventive measures to prevent children from living and working in the street, with strong emphasis on education, and on preventive strategies at local and community level; Facilitate strengthening of family ties of children in street situations; and their reunification with their families, when appropriate and in the best interests of the child; Extend the assistance measures to support children in order to facilitate their full reinsertion into school; Pay greater attention to girls in street situations and their particular vulnerabilities; Prioritize the data collection system on children in street situations and utilize this information to develop sustainable programmes and provision of basic services for these children, with their participation.

The Committee also commented on the youth gangs and the maras, expressing concern that the children were not able to enjoy their childhood and adolescence because of “the climate of fear, insecurity, threats and violence linked to these gangs”, and that the government did not consider enough the root causes of these gangs, a problem that the government had addressed mainly within the criminal

171

172

United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 90 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 90-91

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justice system and not paying enough attention to the socio-economic dimension.173 Here the Committee recommended that the government:174 develop a comprehensive public policy to deal with this problem, addressing the social factors and root causes of juvenile violence, such as social exclusion, lack of opportunities, culture of violence, migration flows and others. The Committee also recommends that the State party invest in activities of prevention, with emphasis on the school, the family and on social inclusion measures.

With regards to the right to life and survival in Article 6 of the CRC the Committee expressed concern about “the extremely high number of killings of children” in a context of impunity, where in 2009 alone out of 6,498 violent deaths, 510 were children.175 Here the Committee recommended that the government develop a policy to prevent the killings of children and investigate, prosecute and punish the perpetrators of these crimes. Furthermore, with regards to Article 6 the Committee expressed concern about “the extremely high level of chronic and persistent malnutrition” in the country and that this situation undermines the rights of children to life and survival, and that this concerns especially children from the rural and indigenous population.176 Here the Committee recommended that the government focus particularly on finding a solution to the chronic malnutrition of the very young children. 5.4.

Authoritarian Reversal of Laws on Children in Latin America

In Latin America there has been in some countries what is termed an “authoritarian reversal” with regards to the rights of children, which is reflected in legisla-

173

United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 92 174 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 93 175 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 45 176 United Nations, Convention on the Rights of the Child, Committee on the Rights of the Child, Consideration of reports submitted by states parties under article 44 of the convention, Concluding Observations: Guatemala, CRC/C/GTM/CO/3-4 1 October 2010, para. 47

The Inter-American Human Rights System as It Pertains to Children

tion, judicial practice and case law.177 In addition, it is worth keeping in mind that as of 2007 the legislation regarding children in Argentina, Chile, Mexico and Colombia which are in force originates from the beginning of the 20th century.178 In Argentina it is possible to give minors life imprisonment and between 1997 and 2007 11 minors had been sentenced to life imprisonment based on a decree from the time of the military dictatorship in 1980, not a constitutional decree to begin with.179 In Peru, the Law Against Aggravated Terrorism from 1998 has provisions of minimum prison sentences for minors that can amount to 30 years, and the Law Against Pernicious Youth Gang Membership criminalizes different forms of conduct in such an ambiguous way that it is really up to the judges to decide what constitutes unlawful conduct based on their own subjective determinations.180 This authoritarian reversal of child rights is in Latin America besides from laws and regulations also reflected in social policy by what Méndez describes as “a return from rights to needs, and from needs to charity”.181 The authoritarian reversal is particularly reflected in the laws against the maras (gangs) in El Salvador, Honduras and Guatemala, where “[t]he untempered increase in the harshness of punishments, the vagueness in the description

177

Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 134 178 Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 134 179 Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 134 180 Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 134 181 Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 135

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of the kinds of conduct to be punished and the failure to respect the most elementary guarantees” constitute this kind of development.182

182 Méndez, Emilio García, A Comparative Study of the Impact of the Convention on the Rights of the Child, Law Reform in Selected Civil Law Countries, Chapter 2 in UNICEF, Protecting the World’s Children, Impact of the Convention on the Rights of the Child in Diverse Legal Systems, Cambridge University Press, UNICEF, 2007, p. 134-135

6.

The African Regional Human Rights System

The African countries have developed a common set of standards regarding the protection and promotion of human rights that are to serve as guidance for the implementation of these rights within their jurisdictions.1 The African regional human rights system is comprised of several treaties and the most important include:2 – – – –

–

The African Charter Governing Specific Aspects of the Refugee Problem in Africa, 1969, entered into force in 1974; The African Charter on Human and Peoples’ Rights, 1981, (ACHPR), entered into force in 1986; The African Charter on the Rights and Welfare of the Child, 1990, (ACRWC), entered into force in 1999; The Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights, 1998, entered into force 2004; The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, 2003, (AWP), entered into force 2005.

The African Charter on Human and Peoples’ Rights (ACHPR) was adopted in 1981 by the member states of the Organization of African Unity (OAU) and entered into force in 1986, keeping in mind that the Charter of the OAU did not include any human rights provisions.3 The ACHPR has been ratified or acceded 1 2 3

Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 14 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 14 Morocco is not a member state of the African Union while it withdrew from the then Organization of African Unity, OAU, preceding the African Union, Olowu, ‘D., The regional system of protection of human rights in Africa, in Africa in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 15

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to by all but one of the 54 member states of the African Union (AU).4 The ACHPR makes no difference between civil and political rights and economic, social and cultural rights as its preamble stipulates that “[c]ivil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality …”.5 That all human rights are to be treated equally makes ACHPR more like the Universal Declaration of Human Rights of 1948 than any other regional human rights instrument.6 There are some special aspects that distinguish the ACHPR from other regional human rights instruments, reflecting the socio-cultural values of Africa, such as that the individual person also has duties towards his family and society.7 Another aspect is that the principles of the ACHPR, economic, civil, political, social and cultural rights, are interdependent and indivisible and carry equal value to be applied to the same situation.8 Most importantly the ACHPR does not have a derogation clause, which means that the African governments have no rights to limit the rights in the Charter even in emergencies.9 This principle has been reconfirmed by the African Commission on Human and Peoples’ Rights (African Commission) in the case Media Rights Agenda and Constitutional Rights Project v. Nigeria of 1998 in which it stated that “in contrast to other international human rights instruments, the ACHPR does not contain a derogation clause”.10 In terms of claw-back clauses, the ACHPR does not have any claw-back clauses regarding economic, social, cultural and collective rights which have not always been properly understood.11 Clawback clauses mean that if municipal law so permits the state can limit the rights 4

5 6

7 8 9 10

11

South Sudan became an independent state on July 9, 2011 and subsequently became the 54th member state of the African Union, and has not of yet become a state party to the Charter; and List of countries which have signed, ratified/acceded to the African Charter on Human and People’s Rights, 13/07/2012, www.africanunion.org Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 16 ACHPR Preambule, and Olowu, D., The regional system of protection of human rights in Africa, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 16 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 17 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 17 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 17 See African Commission case Media Rights Agenda and Constitutional Rights Project v. Nigeria, Communication No. 105/93 (31 October 1998), in Olowu, ‘D., The regional system of protection of human rights in Africa, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 17 These covers articles 15-24 of the ACHPR, Olowu, ‘D., The regional system of protection of human rights in Africa, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 17-18

The African Regional Human Rights System

that have been guaranteed. This means the ACHPR guarantees the economic, social, cultural and collective rights and that they are all written “in plain, unrestrictive and unconditional language”.12 As will be seen later, the African Charter on the Rights and Welfare of the Child reconfirms and embodies the same unrestrictive principles of equality of rights, interdependency and indivisibility. The African Court on Human and People’s Rights was established in 2004 when the Protocol creating it entered into force.13 The Court renders advisory opinions on legal issues concerning the ACHPR “or any other relevant human rights instruments”, and it also has jurisdiction to interpret its own jurisdiction, and its judgments are final and binding.14 There is an enforcement mechanism included in the African human rights system as the Executive Council of the AU, the Council of Ministers, is to monitor the implementation of the judgments.15 The African institutions involved in implementing the African human rights system are the African Union, the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child.16 Furthermore, within the African human rights system there are several agencies established or personnel appointed to promote and protect human rights including a Special Rapporteur on Arbitrary, Summary and Extra-Judicial Killings, a Special Rapporteur on Women’s Rights in Africa, and a Special Rapporteur on Human Rights Defenders in Africa.17 NEPAD, the New Partnership for Africa’s Development, with its African Peer Review Mechanism (APRM), has the potential to provide better protection of human rights within the African region.18 While NEPAD has been termed as “the vehicle for the attainment of regional integration and cooperation”, the 12 13

14

15

16 17 18

Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 18 Additional Protocol to the African Charter on Human and Peoples’ Rights on Establishment of the African Court on Human and Peoples’ Rights, (1998), OAU/LEGAL/MIN/AFCHPR/PROT. (I) Rev.2. AHG/Resolution 230 (XXX) (1998) (entering into force 25 January 2004). Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 24, Article 3, 28 and 29 of the Protocol. Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 24, Article 29 of the Protocol. Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 14 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 14-15 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 25

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APRM is considered as central to the work of NEPAD.19 Through the APRM the African governments are to hold each other accountable regarding issues such as democracy, human rights, good governance, poverty alleviation and corruption.20 The APRM is a voluntary mechanism, but it is increasingly being used to improve the human rights situation in Africa. So far 29 African states participate in the APRM, and the APRM Panel of Eminent Persons has gone on missions to for instance Kenya, Rwanda, South Africa, and Sudan.21 6.1.

The African Charter on the Rights and Welfare of the Child

The African countries have developed a special legal instrument for the protection of children’s rights, the African Charter on the Rights and Welfare of the Child (ACRWC).22 The ACRWC was adopted in 1990 by OAU and entered into force in 1999 and it is the only regional legal instrument for the protection of the rights of children in the world. It was established because the African countries did not think that the UNCRC did adequately reflect the African socio-cultural and economic realities.23 As such the ACRWC acknowledges a need to take into account with regards to the protection of the rights of children the special African context. It states in the Preamble to the Charter that the African member states of the AU note with concern:24 that the situation of most African children, remains critical due the unique factors of their socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger, and on account of the child’s physical and mental immaturity he/she needs special safeguards and care.

As a result, the ACRWC reflects the African societal values and way of thinking, and it takes into account that the African cultural context as it corresponds to chil-

19 20 21

22 23 24

Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 25 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 25 Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 25-26; As of June 21, 2011 (date of access), www.aprm-international.org/index.htm African Charter of the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999. Olowu, ‘D., The regional system of protection of human rights in Africa, in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 23 African Charter of the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999.

The African Regional Human Rights System

dren’s rights needs to be considered.25 Priority is to be given to the cultural heritage, historical background of African children and the values of the African civilization in the application of the Charter, an example of which is that while children are recognized as direct bearers of rights in the ACRWC, they also have duties towards others according to the Charter.26 In the Preamble of the Charter “the performance of duties on the part of everyone” is referred to, while in Article 31 it is stated that:27 Every child shall have responsibilities towards his family and society, the State and other legally recognized communities and the international community. …

That children have duties is unique for the African context, and reflects the concept of the African communal value called ubuntu where aspects of group solidarity and the interdependence of the members of a community are also linked to the enjoyment of children’s rights.28 In this way reciprocity of everybody’s rights is to guarantee that an interaction of children acknowledging and respecting the importance of their families and communities as being central to their lives, their families and communities will reciprocate with guaranteeing and respecting the rights of children.29 The general principle that the best interests of the child is to 25 26 27

Olowu, ‘D., The regional system of protection of human rights in Africa, Ch. 2, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 23 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 33 Article 31 of the ACRWC reads as follows: Article 31: Responsibility of the Child: Every child shall have responsibilities towards his family and society, the State and other legally recognized communities and the international community. The child, subject to his age and ability, and such limitations as may be contained in the present Charter, shall have the duty: (a) to work for the cohesion of the family, to respect his parents, superiors and elders at all times and to assist them in case of need; (b) to serve his national community by placing his physical and intellectual abilities at its service; (c) to preserve and strengthen social and national solidarity; (d) to preserve and strengthen African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and to contribute to the moral well-being of society; (e) to preserve and strengthen the independence and the integrity of his country; (f) to contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African Unity.

28

29

Himonga, C., African Customary Law and Children’s Rights: Intersections and Domains in a New Era, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 81 Himonga, C., African Customary Law and Children’s Rights: Intersections and Domains in a New Era, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 82

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be taken into account must serve as an additional guarantee that children will not be abused or used by their families or communities.30 All domestic legislation must be in accordance with the ACRWC, and the states parties are under the obligation under Article 1 to adopt laws or other measures to ensure that all the provisions of the Charter can be implemented and adhered to. That means that all rights including political, civil, economic, social and cultural rights are to be implemented equally, making the rights indivisible and interdependent of each other.31 Article 1 of the ACRWC: Article 1: Obligation of States Parties 1. The Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to take the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter. 2. Nothing in this Charter shall affect any provisions that are more conducive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international convention or agreement in force in that State. 3. Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency be discouraged.

As is stated in Article 1(2), if any other instrument such as the UNCRC provides stronger protection than the Charter, then it is the instrument with the strongest protection that will take precedent for the states parties to it.32

30

31

32

Himonga, C., African Customary Law and Children’s Rights: Intersections and Domains in a New Era, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 82 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 157: the UNCRC makes a distinction between political and civil rights and economic, social and cultural rights in terms of implementation where it is stated in Article 4 of the Convention that “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and where needed, within the framework of international cooperation.” Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 170

The African Regional Human Rights System

The driving force behind the establishment of the new African Charter on the Rights and Welfare of the Child was the African Network for the Prevention and Protection against Child Abuse and Neglect, ANPPCAN, which together with other civil society organizations (CSOs) drafted the ACRWC combining the values of the UNCRC with the historical and cultural values of Africa.33 The OAU was presented with the draft from these organizations, and in 1990 the OAU African Heads of State and Government adopted the draft with no amendments added.34 In the years leading up to the entering into force of the ACRWC in 1999, the Conference on Children in Situations of Armed Conflict was convened in 1997 in Addis Ababa, Ethiopia and the outcome from this conference was that some recommendations were issued, which the Special Committee on Children in Situations of Armed Conflict set up by the OAU in 1997 had the purpose of following up.35 The Special Committee was in place during five years until the entering into force of the Charter and the subsequent establishment of the ACERWC (African Committee of Experts on the Rights and Welfare of the Child), and it worked together with many civil society organizations like ANPPCAN and Save the Children.36 Among other things, the Special Committee conducted lobbying of the member states of the OAU for them ratify the Charter, and the Committee especially pinpointed the problems that the African countries had regarding providing services to its children.37 A child is defined by the ACRWC in Article 2 to be a person under the age of 18 with no exemptions such as the UNCRC has.38 The ACRWC simply states that “[f]or tile purposes of this Charter, a child means every human being below the age of 18 years”, while UNCRC makes an exemption in stating in its Article 1 that “[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. 33

34

35 36 37 38

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 34, footnote 1 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 34: The OAU African Heads of State and Government adopted the ACRWC in 1990 at the 26th Ordinary Session which was held in Addis Ababa, Ethiopia. Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 34 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 34 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 34 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 35

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Just like the UNCRC does, the ACRWC has some general principles that are to underpin, inform and guide the interpretation and implementation of all the other provisions.39 The ACRWC has four general provisions, the non-discrimination rule in Articles 3 and 26, the best interests of the child in Article 4, the right to life, survival, protection and development in Article 5 and the respect for the views of the child in Article 7.40 The ACRWC is addressing the protection of the rights of children in a broader way than the UNCRC does, and this is especially true for the principle of the best interests of the child.41 While the UNCRC states that the principle of the best interests of the child shall be a primary consideration, the ACRWC states in Article 4 that: 1.

In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

Thus the principle of the best interests of the child is overriding the three other general principles, as the ACRWC states that it is “the” and not only “a” primary consideration that is to be taken into account in all actions concerning the child.42 As the best interests of the child principle is included in a binding legal document, the ACRWC has gone further than the UNCRC where it is the Committee on the Rights of the Child that has determined in its non-legally binding recommendations how the principle is to be applied, and it is not the UNCRC document itself that does that.43 That is an important distinction. Some have argued that it is a reflection of Western culture and not African culture to apply the best interests principle of the child above the other principles and factors, but as Lloyd argues, this principle has been consistently applied in both African customary law and formal civil law in many cases concerning children since the late 18th century.44 With regards to the general principle in Article 5 of ACRWC that states that all children have an inherent right to life, and that the states parties have an obligation to ensure the survival, protection and development of all children, it 39 40 41 42 43 44

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 36 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 36 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 36 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 36-37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37; Lloyd makes references to the cases, Tabb v Tabb 1909 TPD 1033; Mohapi v Masha 1939 NAC (N&T) 154; Hlope v Mahlalela 1998 1 SA 449 (T), footnote 10.

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is to be read as Article 6 of the UNCRC is read together with all the other provisions.45 In the context of the problems the children in Africa are exposed to it is of great relevance to understand that this general principle is to be applied in the context of situations of poverty, disease and armed conflict.46 This Article is to ensure within the difficult African societal context all African children’s right to survival, protection and development “to the maximum extent possible”. Article 5 of ACRWC, Survival and Development, stipulates that: 1. 2. 3.

Every child has an inherent right to life. Th is right shall be protected by law. States Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child. Death sentence shall not be pronounced for crimes committed by children.

However, the ACRWC does not make any provision for life imprisonment for children as UNCRC does in its Article 37(a): “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”47 Lloyd means that life imprisonment of a child would negatively mentally and physically affect the development of a child and that within the context of Article 5 of ACRWC where states parties are to ensure the survival and development of the child, life imprisonment of a child would be in violation of Article 17(3) of the ACRWC that reads: “The essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation.”48 With regards to the fact that the death penalty is not to be applied to children according to Article 5(3) of the ACRWC, it is important to note that about 32 African states out of 53 allow for the use of the death penalty even if it not for children.49 The African Children’s Charter in its Article 17 on juvenile justice states that the child accused of or having infringed the penal law has the right to be afforded “special treatment”, that torture and other inhuman or degrading treatment or punishment should be prohibited and that the child while in detention or prison

45 46 47 48 49

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 As of 2008, Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37

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should be kept in separate quarters from adults.50 Importantly in three aspects the Charter introduces novel approaches, including that if standing trial the child “shall be” provided with legal and other needed assistance (Article 17(2)(c) (iii)), that an impartial tribunal shall “as speedily as possible” decide on the case of a juvenile (Article 17(2)(c)(iv)), and that a child standing trial and found guilty should be treated with the essential aim of the reformation, re-integration into the family and social rehabilitation of the child (Article 17(3)).51 However, there are several limitations in the Charter regarding juvenile justice such as that a provision for alternative measures to criminal proceedings and that imprisonment of a child should only be used as a last resort and for the shortest period of time have been omitted.52 Another issue is that rights such as the right against selfincrimination and the right to be compensated for the miscarriage of justice that 50

African Charter on the Rights and Welfare of the Child, Article 17: Administration of Juvenile Justice 1.

2.

3.

4.

51

52

Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent with the child’s sense of dignity and worth and which reinforces the child’s respect for human rights and fundamental freedoms of others. States Parties to the present Charter shall in particular: (a) ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment; (b) ensure that children are separated from adults in their place of detention or imprisonment; (c) ensure that every child accused in infringing the penal law: (i) shall be presumed innocent until duly recognized guilty; (ii) shall be informed promptly in a language that he understands and in detail of the charge against him, and shall be entitled to the assistance of an interpreter if he or she cannot understand the language used; (iii) shall be afforded legal and other appropriate assistance in the preparation and presentation of his defence; (iv) shall have the matter determined as speedily as possible by an impartial tribunal and if found guilty, be entitled to an appeal by a higher tribunal; (d) prohibit the press and the public from trial. The essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation. There shall be a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 166 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 167

The African Regional Human Rights System

in particular the ICCPR provides for are not included in the Charter, which has been noted in the context that in those cases where a government has not ratified the ICCPR the administration of justice to juveniles can be limited.53 Regarding the non-discrimination principle in Article 3 of the ACRWC, the Charter guarantees that every child, and not only children within the jurisdiction of a state party, is to be entitled to the enjoyment of the rights and freedoms of the Charter.54 Article 3 of the ACRWC reads: Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

However, the UNCRC is more limiting and stipulates in Article 2(1) that only for children “within their jurisdiction” are the states parties under the obligation to ensure the non-discrimination rule, and in this way it can be interpreted that the states parties to the ACRWC have agreed to a shared responsibility to ensure the protection of the rights of children all over Africa.55 Going one step further the African Charter recognizes that there are different forms of discrimination that children might be living under and which requires special protection, which no other human rights instrument does including the UNCRC.56 This is especially important in the context of Africa where several ethnic conflicts have erupted and where many children experience different forms of discrimination in their daily lives living under authoritarian and/ or military governments. As Chirwa argues as ethnicity and regionalism are being used for or against people by these governments, in terms of protecting the rights and welfare of the children living under such circumstances including military destabilization special measures are particularly required, and this is what the African Charter provides for in its Article 26.57 While the first paragraph addresses children living under Apartheid regimes, the second paragraph 53

54 55 56

57

Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 167 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 37-38 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 159 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 159

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addresses more broad based discrimination including regimes practicing racial and ethnic discrimination, as well as military destabilization. Article 26 reads: … 2.

3.

States Parties to the present Charter shall individually and collectively undertake to accord the highest priority to the special needs of children living under regimes practicing racial, ethnic, religious or other forms of discrimination as well as in States subject to military destabilization. States Parties shall undertake to provide whenever possible, material assistance to such children and to direct their efforts towards the elimination of all forms of discrimination and Apartheid on the African continent.

The states parties are thus obliged to ensure that the needs of all children living under such circumstances, including in armed conflict, individually and together with other states parties are addressed with the highest priority irrespective of their background.58 The non-discrimination rule in the African Charter’s Article 3 does not explicitly refer to those children that belong to a minority or indigenous group, which was an important omission given that numerous minority groups have been especially targeted in the many armed conflicts in Africa.59 Nor does it refer to “disability” which the UNCRC does, while in Article 13(1) of the African Charter, all children who are mentally or physically disabled have the right to special measures for their protection, which the UNCRC does not provide for in its Article 23.60 However, while the UNCRC Article 23(3) provides that the assistance to disabled children should be “free of charge”, the African Charter does not include this.61 Furthermore, neither the African Charter nor the UNCRC include children’s right to equality before the law. It is important to realize that corporal punishment by parents or in school is permitted according to the African Charter, which states in its Article 11(5) that “States Parties to the present Charter shall take all appropriate measures to en58

59

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Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 159 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 159 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 159, and Article 13 ACRWC, and Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39

The African Regional Human Rights System

sure that a child who is subjected to schools or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the present Charter”, which makes the Charter “the only instrument that legitimizes corporal punishment”.62 It is also noteworthy that Article 20 on parental responsibilities of the ACRWC in paragraph (1)(c) stipulates that the parents or other persons who have the primary responsibility of the child are obliged to “ensure that domestic discipline is administered with humanity and in a manner consistent with the inherent dignity of the child”. The children are afforded stronger protection in the ACRWC regarding certain rights and provisions than the UNCRC (if at all) affords, and they concern the right to nationality, the right to education, the rights for disabled children, the right to health and health services, child labour, parental responsibilities, the issue of harmful social and cultural practices, and children in armed conflict.63 Concerning the right to a nationality, the ACRWC Article 6(4) stipulates that children will receive the nationality of the state in which they were born if there are no other alternatives available.64 As such a child cannot remain stateless, but always has a right to a nationality in his/her own right. The UNCRC stipulates in its Article 7(2) that states parties have the obligation to ensure the children the right to acquire a nationality but only “in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise remain stateless”.65 With regards to parental responsibilities in Article 20 of the ACRWC, it is the parents or other guardians that have the primary responsibility to raise and provide for their children.66 However, in the case of when neither parents nor 62

63

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Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 163 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38-40: the rights to education, health and health services are dealt with in other chapters of the book. Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38 and Article 6: Name and Nationality, ACRWC. Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 38; UNCRC Article 7. 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 7. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

66

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39

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other guardians either cannot adequately provide for or care for the children or if they are not present, then it is the duty of the states parties to take over this responsibility within their means and national conditions according to Article 20 (2)(a) which reads that states parties are “to assist parents and other persons responsible for the child and in case of need provide material assistance and support programmes particularly with regard to nutrition, health, education, clothing and housing”.67 As has been noted, this provision could become an effective tool to address the situation of the many children who have lost their parents or guardians as a result of HIV/AIDS.68 It can also become an effective tool to apply to help and provide for all those children orphaned from the many conflicts across Africa such as in Rwanda. In this context children who have become street children as a result of being orphaned because of war, or who have become street children because they have been accused of being child witches as in the Democratic Republic of Congo, can also potentially be addressed within this provision. Article 20(2)(a) of the ACRWC thus guarantees child protection as it is the state that is under the obligation to provide for the children if their parents or guardians do not have the capacity to do so. Within specifically the African context different social and cultural practices are common and widespread and it has been very hard to do away with the harmful practices as they often have a long history from custom and heritage.69 However, Article 21 acknowledges that some cultural practices are indeed harmful to the individual child, and that states parties are obliged to take “all appropriate measures” to eradicate these harmful practices as they relate to children. While the Charter has provisions with the purpose of ensuring the protection of African social and cultural practices, at the same time the states parties also have acknowledged that some of these practices are harmful to children and therefore the Charter contains a provision regarding this issue.70 In Article 21 of the ACRWC, the protection against harmful social and cultural practices is being considered and it states that: 1.

67

68 69 70

States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular:

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39, and ACRWC Article 20 (2) (a). Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39

The African Regional Human Rights System

(a)

2.

those customs and practices prejudicial to the health or life of the child; and (b) those customs and practices discriminatory to the child on the grounds of sex or other status. Child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory.

Article 21 is an important improvement of child protection as no other treaty has included a compatible clause on these issues, which is especially important in the African cultural context where many harmful social and cultural practices exist.71 As has been noted before the UNCRC was though the first international document with a legally binding provision with its Article 24(3) on health that obligates state parties to abolish “traditional practices prejudicial to the health of children”.72 This was a great achievement given that harmful traditional practices are carried out in many regions of the world. The provision in Article 21 of the ACRWC also includes the dignity of the child which the UNCRC does not.73 In Article 21(1) the specific practices which are considered to be harmful have not been identified and have been left to interpretation; however female genital mutilation (FGM) is included and constitutes a violation of Article 21(1)(a), where the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) has in several of its sessions mentioned FGM and Article 21(1).74 However, the ACERWC has not in any other way analysed or interpreted this Article as of yet. Child betrothal and child marriages in Article 21(2) refer to ancient African customary practice and they are explicitly being prohibited in the Article, and Article 21(2) is importantly interrelated to other articles in the Charter which include Article 27 regarding sexual exploitation, Article 11 on education, Article 3 on discrimination, Article 5 on the right to survival and development, and Article 14 on health.75 The Article also explicitly states that it is compulsory to 71 72 73

74

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Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 39 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 307 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 164 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 40 and footnote 14: The ACERWC has in technical discussions talked about FGM and at its 5th ordinary session 8-12 November 2004 specific time was set aside to discuss FGM, at footnote 15, p. 40 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 40

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register all marriages in an official registry, while at the same time it states that legislation must be taken to make the minimum age of marriage 18 years of age. No other international treaty has set a minimum age of marriage or has stated that all marriages need to be registered.76 To register marriages is a challenge for those African jurisdictions with limited resources, but the states are at the same time under the obligation to provide sufficient budgetary resources in order to fulfi l their obligation under this Article.77 Furthermore, Lloyd states to make registration of all marriages compulsory as Article 21(2) does will most likely have widespread consequences for the African laws on customary marriages.78 6.1.1.

Children Affected by Armed Conflict and the African Children’s Charter

The ACRWC has an important provision with regards to children affected by armed conflicts in its Article 22, which states that: 1.

2.

3.

States Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child. States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child. States Parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.

With the ACRWC establishing in its Article 2 that a child is to be a person under 18 years of age without exception in contrast to the UNCRC, follows that with child soldiers the ACRWC has taken “a straight 18” position prohibiting clearly the recruitment and use of children under 18 years in both international and internal armed conflicts.79 In this way the ACRWC states that it is unacceptable to recruit and use child soldiers under any circumstances and that it 76 77 78 79

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 40 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 40 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 40 Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 202

The African Regional Human Rights System

should not be tolerated in Africa.80 This needs to be seen in the context that the Optional Protocol on the Involvement of Children in Armed Conflict (2000) to the UNCRC, in paragraph 7 of its Preamble refers to Article 1 of the UNCRC to define who constitutes a child.81 With regards to the Optional Protocol in the African context it is also important to note that the Protocol permits in its Article 3 voluntary recruitment into the armed forces of a state, if four safeguards are fulfi lled: “(i)the recruitment is genuinely voluntary; (ii) the recruitment is carried out with the informed consent of the potential recruit’s parents or legal guardians; (iii) the potential recruit is fully informed of the duties involved in such military service; and (iv) the recruit provides reliable proof of age prior to acceptance (article 3(3))”.82 However in Africa, many child soldiers come from contexts where the requirement to be given parental consent is not really workable as several of these children come from vulnerable groups and are poor, orphans, refugees or IDPs or come from environments with very little parental care, as well as that obtaining proof of age can be very challenging in Africa where few children are registered at birth (UNICEF reported in 2005 that about 55 per cent of children in Sub-Saharan Africa were still are not registered at the age of five).83 ACRWC also gives stronger protection to children than the Optional Protocol does in that states parties are in Article 22(2) of the Charter to take “all necessary measures” making sure that children under 18 years of age are not be recruited and take a direct part in hostilities, where the Optional Protocol only stipulates in its Article 1 that “all feasible measures” are to be taken by states parties to ensure that children as members of the armed forces are not to take direct part in hostilities.84 (Article 2 of the Optional Protocol provides stronger protection than its Article 1 as when it comes to compulsory recruitment states parties

80

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Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 202 Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 204 Optional Protocol on the Involvement of Children in Armed Conflict (2000) Article 3, and Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 205 Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 205-206 Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 204-205

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“shall ensure” that children under the age of 18 years are not forcibly recruited into the armed forces.) In contrast to Additional Protocol II (1977) to the Geneva Conventions which provides a threshold under which its provisions do not apply, the African Charter in its Article 22(3) states that the rules in the Charter as well as state parties’ obligations under international humanitarian law “shall also apply to children in situations of internal armed conflicts, tension and strife”.85 This is a very important provision since as Mezmur has stated “[m]ost current conflicts involving child soldiers in Africa are internal and below the Additional Protocol II minimum threshold”.86 Many countries in Africa have experienced high degrees of violence, tension and strife severely affecting the lives of children and the rest of the population which have required a response conducive to the reality of these situations. (Additional Protocols I (Article 77) and II (Article 4) and the Rome Statute provide that children under the age of 15 years are not recruited or take part in hostilities.) Kaime has noted that there are specifically two issues that give more strength to the protection of refugee children in the ACRWC than the UNCRC gives, of which one issue is that the ACRWC also extends its protection specifically to internally displaced children, in contrast to the UNCRC.87 In the ACRWC Article 23 on “Refugee Children” the Charter proclaims that “all appropriate measures” are to be taken by the states parties with regards to children who have been forced to flee their countries to give these children protection and humanitarian assistance, and that in Article 23(4) this obligation also extends to internally displaced children: “The provisions of this Article apply mutatis mutandis to internally displaced children whether through natural disaster, internal armed conflicts, civil strife, breakdown of economic and social order or howsoever caused.”88 The second issue is that formal relationships are also being created between the Charter and different international authoritative instruments, and in this context according to Article 46 the Committee on the Rights and Welfare of the Child “shall draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples’ Rights, the Charter of the Organization of African Unity, the Universal Declaration on 85 86

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Article 22 of the African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999 Mezmur, B., D., Children at Both Ends of the Gun: Child Soldiers in Africa, Chapter 12, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 201 Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 184 Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 184

The African Regional Human Rights System

Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions”.89 However considering how enormous the problems with refugees and internally displaced are in Africa, it is worth noting that no central organ for the coordination of refugee issues has been established within the AU, and that the Economic, Social and Cultural Council that is to handle social issues within the AU needs to build up management capacity for its work on refugees.90 As a result, the regional and state initiatives regarding addressing the needs of refugees are very limited while it is the international NGOs that are handling the biggest burden, and as Kaime has argued the African states need to properly care for their own children by protecting their respective human rights, because that would make it much easier to deal with an inflow of refugee children.91 Furthermore, Kaime has noted that the states have the obligation to cooperate with other governments and international organizations according to Article 23(2) of the ACRWC to protect and assist refugee children as well as IDP children if there is such a need.92 The children are treated as autonomous beings in the African Charter, not only as passive beings in need of protection, as the Charter provides children with a number of participation rights, which is an important development since children traditionally in Africa have not been viewed as autonomous.93 Instead it has been a group of male elders that commonly have taken decisions about issues concerning the child, as the child has not been considered to have any useful

89

90

91

92

93

Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 184; and Article 46 of the ACRWC. Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 194 Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 194 Kaime, T., The protection of refugee children under the African human rights system: finding durable solutions in international law, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 194: Article 23 (2): States Parties shall undertake to cooperate with existing international organizations which protect and assist refugees in their efforts to protect and assist such a child and to trace the parents or other close relatives or an unaccompanied refugee child in order to obtain information necessary for reunification with the family. Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 160

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decision-making abilities and only indirectly been heard, if at all.94 The participation rights include that a child be heard in all judicial or administrative proceedings affecting the child (Article 4(2)), freedom of expression (Article 7), freedom of association (Article 8), freedom of thought, conscience and religion (Article 9) and protection of privacy (Article 10). While the incorporation into the Charter of these provisions are a positive development, there are also certain concerns with regards to the restricted definition of some of these rights such as that in Article 4(2) the child needs to be able to communicate his/her views in order to be heard, while in the UNCRC it is enough if the child can form an opinion, and that a child according to the Charter only “as a party to the proceedings” will be heard.95 Also, Article 4(2) of the Charter states that the views of the child be taken into consideration “in accordance with the provisions of appropriate law”, while the UNCRC stipulates that “due weight” be given the views of the child “in accordance with the age and maturity of the child”.96 Furthermore it is only in judicial and administrative proceedings that the views of the child be taken into account according to the African Charter leaving aside informal situations which also would have required that a child’s views be taken into account.97 In addition, some of these provisions have “claw-back” clauses such as that the right to freedom of expression can be restricted as “prescribed by laws” (Article 7), and the right to freedom of association which Article 8 states needs to be conducted “in conformity with the law”.98 In the context of authoritarian regimes with censured state press, these provisions can easily be manipulated. Given that there are so many street children in Africa it is important to note that the states parties are under the obligation to “take appropriate measures to 94

95

96

97

98

Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 160 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 161: Article 4(2): In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law. Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 161 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 161 Chirwa, D., M., The merits and demerits of the African Charter on the Rights and Welfare of the Child, The International Journal of Children’s Rights 10: 157-177, 2002, p. 161

The African Regional Human Rights System

prevent … the use of children in all forms of begging” according to Article 29(b) of the African Charter. 6.1.2.

The African Committee of Experts on the Rights and Welfare of the Child

The Charter establishes the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) in its Article 32, which is considered to be “the guardian of children’s rights in Africa”.99 The ACERWC was established with a broader mandate than the UN Committee on the Rights of the Child, and it was set up in July 2001 with eleven independent members elected for a period of five years.100 The mandate of the African Committee of the Child (ACERWC) is covered by Article 42 which reads as follows: The functions of the Committee shall be: (a)

(b) (c)

99

To promote and protect the rights enshrined in this Charter and in particular to: (i) collect and document information, commission inter-disciplinary assessment of situations on African problems in the fields of the rights and welfare of the child, organize meetings, encourage national and local institutions concerned with the rights and welfare of the child, and where necessary give its views and make recommendations to Governments: (ii) formulate and lay down principles and rules aimed at protecting the rights and welfare of children in Africa; (iii) cooperate with other African, international and regional institutions and organizations concerned with the promotion and protection of the rights and welfare of the child. To monitor the implementation and ensure protection of the rights enshrined in this Charter. To interpret the provisions of the present Charter at the request of a State Party, an Institution of the Organization of African Unity or any other person or Institution recognized by the Organization of African Unity, or any State Party.

Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 44 100 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 33 and 41: ACRWC, Article 33; Article 37 (1): “The members of the Committee shall be elected for a term of five years and may not be re-elected, however, the term of four of the members elected at the first election shall expire after two years and the term of six others, after four years.[…]”

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(d)

Perform such other task as may be entrusted to it by the Assembly of Heads of State and Government, Secretary-General of the OAU and any other organs of the OAU or the United Nations.

While the UN Committee on the Rights of the Child only has had the mandate to review and comment on the UN member states’ reports, but not receive any individual complaints (until the adoption of the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure in December 2011 which is still to be ratified and enter into force),101 the African Committee has had the right to receive individual complaints and as is stipulated in Article 44 of the ACRWC: 1.

The Committee may receive communication, from any person, group or nongovernmental organization recognized by the Organization of African Unity, by a Member State, or the United Nations relating to any matter covered by this Charter.

…

Furthermore, the African Committee receives and considers periodic reports from the member states and may undertake ad hoc missions and make onsite visits to those states that allegedly are violating the rights of children, and, in addition, the African Committee has standing before the African Court on Human and Peoples’ Rights.102 The Committee as a response to the reports of the state parties issues general recommendations, and regarding the individual complaints mechanism the Committee gives its views on whether violations of the Charter have taken place.103 In addition, the Committee provides interpretations of the provisions of the Charter and through general comments, resolutions and declarations establishes rules, principles and standards concerning the rights and welfare of the African children.104 At its 12th ordinary session in 2008, 11 key thematic issues were adopted by the ACERWC each of which are to be assigned to an expert, and they constitute violence against children, education of children, juvenile justice, child participation, integrated development of early childhood, survival and development, orphaned and other vulnerable children, family responsibilities and child 101

General Assembly, A/RES/66/138, 19 December 2011, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, OHCHR, Children empowered to complain about rights violations under the new UN protocol, www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11732&La..., 2011-12-22, See Chapter 10 102 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 33 103 ACERWC, Home, www.acerwc.org/achievements/, 2011-06-24 104 ACERWC, Home, www.acerwc.org/achievements/, 2011-06-24

The African Regional Human Rights System

responsibilities, registration of children, child abuse and exploitation, children in armed conflicts and natural disasters, and refugee and displaced children.105 Within this context HIV/AIDS and child soldiers have been given the highest priority by the ACERWC, and at every meeting it has discussed HIV/AIDS and child soldiers, and the Committee visited Sudan and Northern Uganda because of these issues.106 The AU made the 16th of June the Day of the African Child (DAC), and for ACERWC this day has become part of its promotional work and a day to make the states parties to the ACRWC aware of their obligations towards children under the Charter.107 The theme for the Day of the Child for 2011 has been “All together for Urgent Action for Street Children”. While the International Committee of the Red Cross (ICRC) and the AU Labour and Social Affairs Commission have been considered as the driving force behind the work of the Committee, concerns have been raised that it is not the ACERWC itself that has decided on which issues to prioritize but that its partners have “shaped” and “dictated” its work and that the Committee “has been guided by partners who provide funding”.108 Furthermore as Lloyd has stated “the ACERWC has not been innovative with the information provided to it”.109 However with the new composition of the ACERWC with committee members including Julia Sloth-Nielsen and Benyam Dawit Mezmur, well-known experts on the rights of the child in the African context, there is much potential for the ACERWC to become a strong protector of the rights of children in Africa as there is much knowledge about these issues in the Committee. However this needs to be seen in the context of what level of commitment and interest the states parties have in order to guarantee the rights of children in Africa, given among other things that the ACERWC has had difficulties in receiving adequate funding. The ACERWC is responsible for the functioning of three administrative and formal processes, the reporting procedure, communications and investigations.110 The states parties to ACRWC are obliged to submit first an initial report within two years after having ratified the ACRWC and then every third year on how the implementation of the ACRWC has proceeded including challenges involved and 105 The 12th ordinary session was held in Addis Abeba, Ethiopia from 3-5 November 2008, ACERWC, Achievements of the ACERWC, Thematic discussions, www.acerwc.org/achievements/, 2011-06-24 106 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 45 107 ACERWC, Achievements of the ACERWC, Celebrating the Day of the African Child, www.acerwc.org/achievements/, 2011-06-24 108 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 45 109 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 45 110 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 46

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on the situation for the human rights of children.111 The quality of the reports differs substantially both in detail and content, and at times the ACERWC is not given adequate information about how the Charter has been implemented at the national level. In addition, since the states parties are to submit periodic reports to the UNCRC Committee as well, which has resulted in much work being duplicated, both the UNCRC Committee and the ACERWC have discussed the overlap of their work.112 ACERWC came to the solution that in cases where a state party has already given a report to the UNCRC Committee, then it is enough for that state party to only give additional information on the provisions in the ACRWC that differ and other updated information to the ACERWC.113 If no initial report has been provided to the UNCRC Committee by a state party then the state party needs to submit a report in full on the ACRWC to the ACERWC. The two Committees need to continue work on how their cooperation is to be carried out; however at the same time the ACERWC needs to improve its reporting procedure and how it processes the reports, as there have been many delays as a result of such procedures not having been finalized by the Committee.114 With regards to the individual complaints mechanism under Article 44 of the Charter the ACERWC was asked a number of times who would be able to fi le a communication, and in 2005 the ACERWC was forced to discuss this issue for the first time formally during its seventh session as several NGOs had submitted individual communications to the AU.115 Then the ACERWC argued that its procedures on individual complaints needed to be adopted and developed, and merely acknowledged that it had received the communications. In December 2006, the ACERWC adopted a proposed “Guideline for the consideration of individual complaints (2005)”, which included “detailed procedures on the submission and examination of individual complaints, including the requirement that local remedies be exhausted”.116 As of June 2011, these Guidelines are under revision; however with regards to who can bring a communication they include: a victim of a violation of the rights enshrined in the ACRWC; an author acting on behalf of a victim; an author acting on behalf of eligible parties; an author 111

112 113 114 115 116

Article 43 of ACRWC, Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 46-47 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 47 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 47 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 47 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 48 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 49

The African Regional Human Rights System

acting on behalf of a victim without the victim’s consent, provided the author is able to prove that he, she or it is acting in the supreme interest of the child; a state that is not a party to the ACRWC, “a communication from such a State should be in the best interest of the child. In considering such a communication, the ACRWC would collaborate with other treaty-implementing mechanisms which the ACRWC non-State party has ratified.”117 Such a communication cannot be anonymous, needs to be in writing and against a state party to the ACERWC, and six conditions according to the current Guidelines have to be fulfi lled, including that “the communication must be compatible with the provisions of the Constitutive Act of the AU or with the ACRWC”.118 Once a communication has been fi led, the ACERWC first considers the admissibility of the communication, then of the merits and the final step is the implementation and monitoring of the decisions. Two communications have so far been submitted to the ACERWC, of which one is on the situation in Northern Uganda for children and this communication has been deemed admissible, and the Committee has in the second communication which was on the right to nationality of the child provided its final decision on the merits.119 While an individual complaints mechanism might at first be seen not to respect the community-based resolution systems of African culture and tradition, at the same time this gives the society as a whole the opportunity to be responsible for the protection of the rights of children as children’s special vulnerability is being acknowledged this way, which can be seen to constitute “a very traditional African approach: society and the community protecting each other”.120 The ACRWC gives the ACERWC the mandate to seek any relevant information with regards to the implementation of the provisions of the ACRWC at its own discretion; however at the same time the state party in question must agree to having the ACERWC conduct such an investigation.121 In Article 45(1) it is stated that “[t]he Committee may, resort to any appropriate method of investigating any matter falling within the ambit of the present Charter, request from the States Parties any information relevant to the implementation of the Charter and may also resort to any appropriate method of investigating the measures the State Party has adopted to implement the Charter”. The communications procedure includes the investigation procedure as they are not separate processes, and in cases where the ACERWC has received an individual complaint, it has been 117

ACERWC, Achievements of the ACERWC, www.acerwc.org/achievements/, 201106-24 118 ACERWC, Communications, www.acerwc.org/communications/, 2011-06-24 119 As of June 2011, ACERWC, Achievements of the ACERWC, www.acerwc.org/ achievements/, 2011-06-24 120 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 48 121 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 49

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proposed that the Committee would be able to initiate an investigation into the matter at hand.122 As of November 2012 there are 47 states parties to the ACRWC out of 54 member states of the AU, and while neither the Democratic Republic of Congo (DRC) nor Central African Republic (CAR) have ratified the Charter (they have signed it), it needs to be taken into account that neither Egypt nor Sudan that both have ratified it consider themselves bound by Article 21(2) of ACRWC regarding child marriage.123 It has been said that it is premature to know how effectively the ACRWC will be implemented and adhered to by the member states and how effective the ACERWC will eventually become.124 However, there is a great potential for a comprehensive system of the protection of children’s rights in the African region. But as Lloyd has stated the member states of the AU will still need to decide “what needs to be protected and promoted, as well as what needs to be abandoned in African culture and tradition, to provide a new dimension to the status of children in Africa: a status of value and worth, where a child has recognized rights and a child’s welfare is guaranteed”.125 6.2.

Cooperation Within the African Human Rights System as It Relates to Children

In an important development, at its 45th session in 2009, the African Commission on Human and Peoples’ Rights adopted the “Resolution on the Cooperation between the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child in Africa”.126 In the Resolution, the Commission assigns the Special Rapporteur on the Rights of Women in Africa as its liaison with the African Committee of Experts on the

122 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 49 123 Egypt has also made reservations to Article 24 regarding adoption, Article 30 (a-e) regarding special treatment of children of imprisoned mothers, article 44 on individual communications and article 45 on investigations in member states; while Sudan has also made reservations to article 10 on the protection of privacy and article 11(6) on education of children who become pregnant before completing their education, ACERWC, Ratifications Table, www.acerwc.org/ratifications/, accessed 2011-06-24, and as according to the latest posted list of countries which have signed, ratified/acceded to the Charter, 06/11/2012 124 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 50 125 Lloyd, A., The African regional system for the protection of children’s rights, in Nielsen-Sloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 50 126 Daily Nation, Kenya, November 20, 2009, ACHRP takes steps to strengthen cooperation with ACERWC, Advertising Feature XI

The African Regional Human Rights System

Rights and Welfare of the Child, the states parties and NGOs, thereby linking the work of the AU on human rights and on women’s rights to the rights and protection of children.127 Africa’s principal human rights mechanisms are the African Commission and the African Committee on Experts. Plan International, Save the Children Sweden, the Institute for Human Rights and Development in Africa (IHRDA), and several African child rights organizations in a joint statement about the cooperation the Commission and the African Committee on Experts said that “[i]nformation-sharing in areas of concerns in the common mandate can reanimate the state-reporting system, facilitate more effective action by the protection mechanisms, including consideration of communications and stronger enforcement of recommendations and decisions. All this will lead to more coherence in the African Human Rights System, thus bringing closer to reality the enjoyment of the rights of the child in Africa.”128 These organizations issued some recommendations to the African Commission to make this Resolution workable including requesting the Special Rapporteur on the Rights of Women in Africa to participate actively in the sessions of the African Committee of Experts on the Rights and Welfare of the Child, undertaking to invite the Committee to conduct joint missions where the issues also concern children, and to regularly refer issues concerning children that are brought before the Commission to the Committee.129

127 Daily Nation, Kenya, November 20, 2009, ACHRP takes steps to strengthen cooperation with ACERWC, Advertising Feature XI 128 Daily Nation, Kenya, November 20, 2009, ACHRP takes steps to strengthen cooperation with ACERWC, Advertising Feature XI 129 Daily Nation, Kenya, November 20, 2009, ACHRP takes steps to strengthen cooperation with ACERWC, Advertising Feature XI

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The European Union’s Work on Children and Armed Conflict

7.1.

Introduction

The European Union’s (EU) work with children affected by armed conflict is conducted within the context that the promotion and protection of the human rights of all children is a priority area of the EU’s human rights policy.1 In addition, the founding principles of the EU which are common to all its member states are liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. The identification of children’s rights as a top priority was done as part of the EU strategic objectives for 2005–2009.2 One of the most important goals for the EU’s Common Foreign and Security Policy (CFSP) that encompasses the European Security and Defense Policy (ESDP) is the respect for human rights. EU’s policies on trade and development cooperation as well as humanitarian assistance are also to be conducted within the context of the respect for human rights.3 In its “Guidelines for the Promotion and Protection of the Rights of the Child”, updated December 2007, the EU reaffirmed its commitment regarding its external human rights policy to view the promotion and protection of all rights of the child as a priority area.4 Children are considered within the EU to be everyone under the age of 18 years and the “EU Guidelines for the Promotion and Protection of the Rights of the Child” builds upon the UNCRC in stating that the EU in its external human rights policy is to observe as a matter of priority the promotion and protection of all rights of the child, and is “to take into account the best interests of the child, its right to protection from discrimination and participation in decision-making 1 2

3 4

EU, Update of the EU Guidelines on children and armed conflict, 2008 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Introduction, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 EU, Update of the EU Guidelines on children and armed conflict, 2008 EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated December 2007

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processes, founded on principles of democracy, equality, non-discrimination, peace and social justice and the universality, indivisibility, interdependence and interrelatedness of all human rights, including the right to development”.5 These Guidelines also make specific mention that the EU is to adopt an integrated approach to the promotion and protection of the rights of the child, which means that regarding children affected by armed conflict, the EU Guidelines on Children and Armed Conflict which have also been established are to complement the Guidelines on the Promotion and Protection of the Rights of the Child. The Guidelines on the Promotion and Protection of the Rights of the Child refer to existing human rights and international humanitarian law documents and instruments and they include the Universal Declaration of Human Rights, the Declaration of the Rights of the Child, the International Covenants on Human Rights, the Convention on the Rights of the Child and its two Optional Protocols, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Statute of the International Criminal Court, the Millennium Development Declaration and the Millennium Development Goals, the Declaration and Plan of Action “A World Fit for Children” of UNGASS 2002 (United Nations General Assembly’s Special Session on Children) and other instruments and standards relevant to the rights of the child as listed in Annex II to the Guidelines. The EU established a Council Working Group on Human Rights (COHOM) in 1987 to make sure that the protection and promotion of human rights as an issue would gain sufficient attention within the Union at all levels of its work.6 Its mandate has been updated a couple of times, and in 2003 the mandate was extended to include all the human rights aspects of the EU’s external relations. The work of COHOM with regards to children affected by armed conflict is centred around finding and using information from different reports, other relevant information such as reports and recommendations from the UN Secretary General (UNSG), including the list of parties to armed conflict that recruit or use children as annexed to the UN Secretary General’s annual report on children and armed conflict to the UN Security Council, the SRSG-CAAC, the UN Security Council Working Group on Children and Armed Conflict, UNICEF, UN Special Mechanisms and human rights treaty bodies and NGOs, to be able to identify those situations where action by the EU could be required.7 The COHOM is on

5 6

7

EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated December 2007, II Political Chapeau: Purpose of the Guidelines. The 1987 COHOM Mandate, Mandate for the EPC – Working Group on Human Rights, Annex I and see the 1999 Extension Annex II, and December 2003: extended mandate. Update of the EU Guidelines on Children and Armed Conflict, 2008, B. Assessment and recommendations for action, p. 13

The European Union’s Work on Children and Armed Conflict

the basis of this information to make recommendations of action to be taken to the relevant level within the EU such as PSC, Coreper or the Council.8 In 2005 the EU issued “the European Union Guidelines on Promoting Compliance With International Humanitarian Law”.9 These Guidelines are a set of operational tools which have the purpose of promoting compliance with international humanitarian law (IHL) and they are to complement the EU Guidelines on Children and Armed Conflict as well the “EU Guidelines on Human Rights Dialogues” (Economic and Financial Affairs Council of 13 December 2001), the Guidelines for EU Policy Towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (General Affairs Council of 9 April 2001), the Common Position 2003/444/CFSP of 16 June 2003 on the ICC (Official Journal L. 150 of 15.6.2003) and the EU 2007 Guidelines for the Promotion and Protection of the Rights of the Child.10 The Guidelines are directed towards all actors acting within the framework of the EU as much as these Guidelines are relevant to these actors’ areas of responsibility and competence. The purpose of the Guidelines is to get third states as well as non-state actors that operate in third states to comply with international humanitarian law.11 In the Guidelines it is pointed out that there is both a political and a humanitarian interest in getting both state and non-state actors to comply with international humanitarian law as post-conflict settlements are often very difficult to achieve in the aftermath of a conflict due to the suffering and destruction as a result of humanitarian law violations.12 In its operational guidelines, actions that can be taken by EU bodies, including relevant Council working groups such as the Council Working Group on International Law (COJUR), are to monitor situations, identify and recommend actions to be taken and to have consultations and exchange information with relevant actors and organizations such as the ICRC and the UN. According to the Guidelines on Promoting Compliance With International Humanitarian Law the EU Heads of Mission, relevant EU representatives, such as Heads of EU Civilian Operations, Commanders of EU Military Operations 8 9

10

11

12

Update of the EU Guidelines on Children and Armed Conflict, 2008, B. Assessment and recommendations for action, p. 13 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04, C327/4, Official Journal of the European Union, 23.12.2005 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, I. Purpose, para. 2 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, II., para. 5

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and EU Special Representatives are in their reports of a state or confl ict to incorporate an assessment of the IHL situation.13 In situations where serious violations of IHL have been carried out “special attention” is to be given those situations, as well as an analysis and advice on which action the EU could take in that given situation. In its relations with third states, the EU can take several different types of action, such as political dialogue, issuing general public statements, démarches and/or public statements about a specific conflict, the use of restrictive measures and sanctions, cooperation with other international bodies such as the UN and the ICRC.14 Further in the draft ing of mandates of crisis-management operations attention should be given to IHL, individual responsibility, training in IHL to law enforcement officials and military personnel in peacetime and with regards to export of arms the importing country’s compliance with IHL is to be taken into account before a license to export to that country can be approved of.15 The Guidelines point out that political dialogue with regards to the compliance of IHL has special importance in on-going armed conflicts. Concerning the issue of individual responsibility, the Guidelines draw attention to the difficulties concerning finding a balance between establishing peace in the aftermath of a conflict and the issue of impunity. However, it is specifically pointed out that the EU should guarantee that there would be no impunity for war crimes.16 The Guidelines stipulate that as a matter of deterrence any prosecution during an on-going armed conflict needs to be visible and take place in the state where the violations took place. The work of the EU with regards to promoting IHL includes supporting third states to establish national penal legislation that would punish violators of IHL and the EU’s work to support the ICC needs to be understood within this context.17

13

14

15

16

17

European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, III., para. 15 (b) European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, III, B. para. 16 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, III, B. para. 16 European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, III, B., para. 16 (g) European Union Guidelines on promoting compliance with international humanitarian law (IHL), (2005/C327/04), C/327/4, Official Journal of the European Union, 23.12.2005, III, B., para. 16 (g)

The European Union’s Work on Children and Armed Conflict

7.2.

The European Union Guidelines on Children and Armed Conflict

With regards to specifically children and armed conflict¨, the EU has developed several policy documents. In 2003 the “EU Guidelines on Children and Armed Conflict” was adopted, and its implementation strategy was adopted in 2006. These Guidelines were further revised and updated in June 2008 through changes which the European Council adopted.18 Further policy documents are the EU Concept for Support to Disarmament, Demobilization and Reintegration of 2006, the Checklist for Integration of the Protection of Children affected by Armed Conflict into ESDP of 2006 (updated May 2008), and the Commission Communication “Towards an EU Strategy on the Rights of the Child” of 2006.19 The EU Guidelines on Children and Armed Conflict were developed after discussions and input by the UNSRSG-CAAC, UNICEF and NGOs. The EU’s foreign missions and the Heads of the European Commission’s Delegations report on the implementation of the Guidelines on the ground. In November 2005 the first review of the Guidelines was conducted and that led to the EU issuing recommendations and revising its list of priority countries.20 When the EU Guidelines on Children and Armed Conflict were implemented, the COHOM established a list of priority countries affected by armed conflict where special attention to children would be given. The decision to put a country onto the list of priority countries is taken by the Council Working Group on Human Rights, and this decision is based on consultations with other governments, international organizations such as UNICEF, NGOs like Save the Children and civil society organizations.21 The criteria for being put onto the list is based on the fact that countries in armed conflicts are considered to be priority countries by the EU member states because of the severity of the situation. To be affected by armed conflict is considered to be the most severe situation a country can find itself in and within this context the EU member states acknowledge that children are the most affected by the situation and thus merit special attention in accordance with the EU Guidelines on Children 18

19

20

21

Council of the European Union: Update of the EU Guidelines on children and armed conflict, Brussels, 5 June 2008, 10019/08 and Council Conclusions on the review of the EU Guidelines on children and armed confl ict, 2878th General Affairs Council meeting, Luxembourg, 16 June 2008. EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Introduction, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Regular review of the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Regular review of the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09

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Affected by Armed Conflict.22 In order to implement the Guidelines on Children Affected by Armed Conflict special attention is given to the affected countries as a matter of priority, and therefore they are termed priority countries. For the implementation of other guidelines such as the Guidelines for the Promotion and Protection of the Rights of the Child the countries are termed “pilot countries” and by January 2009 ten pilot countries had been selected.23 These pilot countries are not chosen because they are in the worst situation, but because of considerations with regards to geographical regions and level of development. Once a country has been termed a priority country by being put onto this list, a separate individual implementation strategy needs to be put in place.24 This strategy needs to reflect the particular needs of the children in that specific country. Each country strategy is different because each situation is different and to be effective the implementation strategy needs to acknowledge the particular situation and needs of each country. International organizations such as UNICEF and NGOs like Save the Children are also consulted in the process of developing an implementation strategy. By January 2009, 19 countries were designated as priority countries on CAAC for the EU and they were Afghanistan, Burundi, Chad, Colombia, Ivory Coast, Democratic Republic of Congo (DRC), Haiti, Iraq, Israel, Occupied Palestinian Territory, Lebanon, Liberia, Burma, Nepal, Philippines, Somalia, Sri Lanka, Sudan and Uganda.25 Thirteen of these 19 countries were put on the list in 2003 and 2005, and six more were added in December 2007.26 The EU has taken diplomatic initiatives in several of these priority countries on the issue of children affected by armed conflict, including Burundi, Uganda, Colombia, Ivory Coast, DRC, Liberia, Nepal and Sudan.27 The 2010 Revised Implementation Strategy kept these same priority countries, while also stating that they could be changed. These priority countries were further revised in 2011when Liberia was

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EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Regular review of the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 Information from the EU Commission, Brussels, by phone, January 23, 2009 Information from the EU Commission, Brussels, by phone, January 23, 2009 Information from the EU Commission, Brussels, by phone, January 21, 2009 Information from the EU Commission, Brussels, by phone, January 23, 2009, and EU, Ljubljana, 17-18 April, 2008, Increasing the Impact on the Ground, WG Documents; Workshop D – The EU’s response to CAAC highlighted in two Case Studies: the Democratic Republic of Congo and Chad: The workshop discussed priority countries/ country strategies, ESDP missions, EU-NGO cooperation and programming. EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Regular review of the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09

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withdrawn from the list and instead CAR and Yemen were added.28 When these priority countries are being updated, the annexes to the UN Secretary-General’s annual reports on children and armed conflict are taken into consideration. The implementation strategy for the first 13 countries on the list was adopted by the German presidency in 2007. The EU COHOM was in January 2009 in a process of consultation regarding developing an implementation strategy for the six other countries added in 2007.29 It was the Czech presidency that was to finalize the strategies at the end of the presidency. In summary the member states of COHOM decide on which country will be put onto the list of priority countries in consultation with other governments, international organizations (e.g. UNICEF), NGOs (e.g. Save the Children) and civil society organizations. The next step is to develop an implementation strategy into which different international organizations and NGOs and civil society organizations are also asked to submit their input. Everything is led by the presidency, while the Commission is asked to provide input as well. An implementation strategy could involve the implementation of different projects or advocacy on for instance the ratification of the CRC and its Optional Protocols or that a government wants to withdraw reservations. Furthermore, at the political level a country can be asked to develop national documents or laws reflecting a more improved protection of children’s rights. One advantage with having this list of priority countries is that with regards to the implementation of different EU projects priority will be given to these countries. For instance, in the third week of January the EU decides yearly on which projects to approve and finance in the upcoming year in the area of development and human rights.30 In such a case priority will be given to a priority country in accordance with the Guidelines on children affected by armed conflict. As an example, if the choice is between a project in Burundi or in Cambodia, Burundi will be given priority as it is on the list of priority countries. In order to have a more effective implementation of the Guidelines on Children and Armed Conflict, the EU set up a strategy in April 2006 that involved monitoring and reporting, cooperation with the United Nations, a more effective incorporation of gender issues into all policy areas and lobbying.31 An informal task force was set up to follow-up on the implementation of this strategy and as a result in June 2006 the EU came out with specific guidance and instruc-

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Riina Kionka, European External Action Service, EEAS, EU, Brussels, By email, September 8, 2011 Information from the EU Commission, Brussels, by phone, January 23, 2009 Information from the EU Commission, Brussels, by phone, January 23, 2009 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Implementing the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09

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tions regarding the protection of children in conflict areas to its missions in the priority countries and its special representatives in conflict areas.32 In 2007 the EU’s work on children affected by armed conflict concentrated on:33 – – –

Concrete strategies and projects to tackle the issues in the priority countries and potential new areas of conflict; Continued support for international efforts and instruments (such as the Paris Commitments and Principles) to combat the use of child soldiers; and Improving UN monitoring mechanisms, including early warning methods.

The EU has not set up a structured monitoring and reporting mechanism such as the UN MRM 1216, but the EU has a monitoring and reporting process in place. Within the EU monitoring and reporting process the EU Heads of Mission, Heads of Mission of civilian operations, EU Military Commanders (through the chain of command) and the EU Special Representatives are to include in their periodic reports “and where relevant” analyses of what the consequences are for children in an on-going conflict or in an emerging conflict.34 Six specific violations of children’s rights have been identified as priority issues for the monitoring and reporting strategy as they constitute violations and abuses against children. These six violations are recruitment and deployment of children by armed forces and armed groups, killing and maiming of children, attacks against schools and hospitals, blockage of humanitarian access, sexual and gender-based violence against children, and abduction of children.35 This list of six violations is not exhaustive and can be extended and include other violations of children’s rights. These actors are also to report on the effect and impact of all actions that the EU has taken regarding children, as well as the measures taken by the parties in the case to end these violations. In addition, the Head of Mission is to provide an ad hoc report on the situation in a country, including an update on the implementation of relevant country strategies which may cover also the issues

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EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Implementing the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Implementing the guidelines, http://ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 Update of the EU Guidelines on children and armed conflict, 2008, IV. Guidelines, A. Monitoring and reporting, p. 11 Update of the EU Guidelines on children and armed confl ict, 2008, IV. Guidelines, A. Monitoring and reporting, p. 11

The European Union’s Work on Children and Armed Conflict

of children.36 Lessons learned from EU crisis management operations may form another source of information provided that they are not classified. To better improve the response to the situation of children in armed conflict different UN agencies such as the UNICEF, other international organizations, NGOs and civil society organizations are frequently consulted.37 This monitoring and reporting process set up under the EU Guidelines on Children and Armed Conflict is, as an example, given information from the DCI/PS and other Palestinian, international and UN organizations regarding the situation in OPT.38 The European Council has stated that the work of the EU regarding children in armed conflict is to support and complement the work of the United Nations, and the 1612 MRM mechanism.39 The “Checklist for the Integration of the Protection of Children Affected by Armed Conflict into ESDP Operations”, which the European Council adopted in May 2006, determines how the EU is to integrate the protection of children into the European Security and Defense Policy Operations and how to ensure the rights of children in this Policy.40 This includes the planning and support of EU security and military field missions. The purpose of the work of the EU on children affected by armed conflict is to influence third countries and non-state actors to implement international and regional human rights norms, standards and instruments and international humanitarian law.41 Furthermore the purpose is to make these third countries and non-state actors take effective action to protect children from the effects of armed conflict, to end the use of child soldiers, and to end impunity for crimes against children. Regarding children and armed conflict, the European Council approved the general review of the implementation of the Checklist for the Integration of the Protection of Children Affected by Armed Conflict into ESDP operations at its

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40

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Update of the EU Guidelines on children and armed confl ict, 2008, IV. Guidelines, A. Monitoring and reporting, p. 11 Update of the EU Guidelines on children and armed confl ict, 2008, IV. Guidelines, A. Monitoring and reporting, p. 11 DCI/PS, DCI/PS calls on the EU to raise child rights issues with Israel, 16 June 2008, www.reliefweb.int.rw.rwb.nsf EU Council Conclusions on the Review of the EU Guidelines on Children and Armed Conflict, Summary: 16 June 2008, Luxembourg – Council of the European union 2878th General Affairs Council meeting, CL08-062EN, www.europa-eu-un. org/home EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Protection of Children in European Security and Defense Policy (ESDP) Operations, http://ec.europa.eu/external_relations/human_rights/ child/ac/index.htm, 2008-09-09 Update of the EU guidelines on children and armed conflict, II Purpose, 6., 2008,

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meeting in May 2008.42 The Checklist was revised in the areas of the elaboration of the definition of child protection, specific training on children affected by armed conflict, monitoring and reporting, improving visibility and awareness, the possibility of having specific expertise on the ground, and enhancing expert communication between missions/operations and Brussels. There are ESDP missions in DRC and Chad and they have mandates with a specific focus on children.43 Both DRC and Chad are priority countries under the EU Guidelines on Children and Armed Conflict. DRC has been a priority country since 2003 when the EU Guidelines on CAAC were implemented, and Chad became a priority country in December 2007. The European Council adopted conclusions on the biannual review of the EU Guidelines on Children and Armed Conflict in December 2005, and the Council Working Group on Human rights subsequently prepared an implementation strategy for the guidelines.44 The COHOM is to review the implementation of the Guidelines on CAAC as part of its annual review of the EU human rights policy.45 The EU Commission adopted in May 2008 a communication on Children in External Action making children the centre of EU’s external relations, development and humanitarian aid.46 The Staff Working Papers on “Children’s rights in external action” and on “Children in situations of emergency and crisis” are attached to the communication and together they constitute part of a longterm strategy regarding children’s rights in general which are linked to the EU

42 43

44 45 46

Council of the European Union, Children and Armed Confl ict, 9868/08 (Press 141), 26.-27.V.2008, p. 30 EU, Ljubljana, 17-18 April, 2008, Increasing the Impact on the Ground, WG Documents; Workshop D – The EU’s response to CAAC highlighted in two Case Studies: the Democratic Republic of Congo and Chad: The workshop discussed priority countries/ country strategies, ESDP missions, EU-NGO cooperation and programming. Council of the European Union, Implementation Strategy for Guidelines on Children and Armed Confl ict, Brussels, 25 April, 2006, 8285/06, REV 1 Council of the European Union, Implementation Strategy for Guidelines on Children and Armed Confl ict, Brussels, 25 April, 2006, 8285/06, REV 1 European Union@United Nations, Partnership in action, Follow-up to the EU strategy on the rights of the child, 26 May 2008, www.europa-eu-un.org/home/print. asp?; “The Council recalls its conclusions of May 2008 on the promotion and protection of the rights of the child in the EU’s external action – the development and humanitarian dimensions, and on the Checklist for the integration of protection of children affected by armed conflict into ESDP operations. The Council also considers it of critical importance to raise awareness of this issue by giving more prominence to EU actions in this field worldwide.” – see Council of the European Union, Council conclusions on the review of the EU guidelines on children and armed confl ict, 2878th general affairs Council meeting Luxembourg, 16 June 2008.

The European Union’s Work on Children and Armed Conflict

Guidelines for the Promotion and Protection of the Rights of the Child which were adopted by the Council in December 2007.47 In the EU Guidelines on Children and Armed Conflict a wide range of tools for action in EU’s relations with third countries are listed, and they consist of:48 Political dialogue: The human rights component of the political dialogue at all levels between the EU and third countries and regional organisations shall, where relevant, include all aspects of the rights and well being of the child during pre-conflict, conflict and postconflict situations. Démarches: EU will make démarches and issue public statements urging relevant third countries to take effective measures to ensure protection of children from the effects of armed conflict, to end the use of children in armed forces and armed groups, and to end impunity. The EU Special Representatives and Heads of Mission will be tasked to continue to address the matter with non-state actors where relevant. When appropriate, the EU will also react to positive developments that have taken place. Multilateral co-operation: The Community is engaged in funding projects relating to children and armed conflict in several fields, in particular for Disarmament, Demobilisation, Reintegration and Rehabilitation (DDRR) and through humanitarian assistance. The Commission will identify possibilities for extending such support, for example in the context of its Country Strategy Papers and its Mid Term Reviews, paying specific attention to the situations in priority countries. The Commission will also specifically consider the link between relief, rehabilitation and development. In this continuum, the Commission has recognised the importance of support to education in emergencies, which has to be integrated into comprehensive longer-term policies. Member States will equally seek to reflect priorities set out in these guidelines in their bilateral cooperation projects. Crisis management operations: During the planning process, the question of protection of children should be adequately addressed. In countries where the EU is engaged with crisis management operations, and bearing in mind the mandate of the operation and the means and capabilities at the disposal of the EU, the operational planning should take into ac47

48

European Union@United Nations, Partnership in action, Follow-up to the EU strategy on the rights of the child, 26, May 2008, www.europa-eu-un.org/home/print. asp? This list is adopted from the Update of the EU Guidelines on Children and Armed Conflict, 2008 IV. Guidelines, A. Monitoring and reporting, C. EU tools for action in relations with third countries

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count, as appropriate, the specific needs of children, bearing in mind the particular vulnerability of the girl child. In pursuit of the relevant UNSC resolutions, the EU will give special attention to the protection, welfare and rights of children in armed conflict when taking action aimed at maintaining peace and security. Making use of the various tools at its disposal, the EU will seek to ensure that specific needs of children will be taken into account in early-warning and preventive approaches as well as actual conflict situations, peace negotiations, peace agreements, ensuring that crimes committed against children be excluded from all amnesties, post-conflict phases of reconstruction, rehabilitation, reintegration and long-term development. The EU will seek to ensure that the local community, including children, is involved in the peace process. In this context, the EU will take advantage of and build on experience gained within the UN system and regional organisations. Girls and those children who are refugees, displaced, separated, abducted, affected by HIV/AIDS, disabled, subject to sexual exploitation or in detention are particularly vulnerable. Training: The coordinated EU Training Concept in the field of crisis management should take account of the implications of these guidelines. In light of this, the EU recommends training in child protection. Other measures: EU might consider making use of other tools at its disposal where appropriate, such as the imposition of targeted measures. When EU agreements with third countries are approaching renewal the EU will consider carefully the country’s record on respect for children’s rights, with particular reference to children affected by armed conflict.

The purpose with these tools is for the EU to make sure to respect the specific needs of children with regards to early warning, preventive approaches, in actual conflict situations, in peace negotiations, peace agreements, that no amnesties for perpetrators of crimes against children will be granted, and later in reconstruction, rehabilitation, reintegration and long-term development.49 In addition, the EU is to make sure to include local communities and children in peace processes. 7.3.

European Union’s Work on the Human Rights of All Children

The framework of EU’s work on the human rights of children is the EU Guidelines for the Promotion and Protection of the Rights of the Child, updated in December 2007. The Guidelines state that the EU objectives in relation to third countries and international fora regarding the human rights of children are to remind and 49

Update of EU Guidelines on Children and Armed Confl ict, 2008, C. EU tools for action in relations with third parties, p. 18

The European Union’s Work on Children and Armed Conflict

encourage third countries to honour and fulfi l their legal obligations and their specific commitments for the promotion and protection of children’s rights according to international law as well as political commitments.50 Furthermore the EU objectives in this context are to raise awareness and promote a better understanding of children’s rights as set out in the CRC and its two Optional Protocols and other international and regional legal instruments and standards. In addition, the objectives include to complement and strengthen on-going EU efforts in multilateral fora and in the EU’s relations with third countries to promote and protect children’s rights with specific action in priority areas. To carry out these objectives the EU has created a set of operational tools for EU action in its relations with third countries, and these are:51 Political dialogue (i.e. inclusion of children’s rights in meetings and discussions in international and regional organisations and with Th ird Countries at all levels, including ministerial talks, joint committee meetings, formal dialogues led by the Presidency of the Council, the Troika, Heads of Mission or the Commission), particularly with the objectives to: – Raise awareness of children’s rights and of international norms and standards concerning their promotion and protection; – Promote the ratification and effective implementation of relevant international instruments on the rights of the child; – Promote legislative reform to ensure conformity of national laws with international norms and standards on the rights of the child; – Promote the development of national independent institutions on the rights of the child in conformity with the Paris Principles; – Promote the effective coordination of cross-departmental activities and of actions between national and sub-national authorities, as well as the allocation of adequate resources with a view to ensuring the promotion and protection of the rights of the child; – Develop child-sensitive indicators and child impact assessments for the promotion and protection of the rights of the child; – Advocate engagement of civil society in promoting and protecting the rights of the child; – Promote the participation of children in decision making processes for the promotion and protection of their rights. Démarches (in connection with public statements, where appropriate) to react to topical relevant developments with an impact on the promotion and protection of 50 51

EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines B) EU Objectives EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines C) Operational Tools for EU Action in Relation with Third Countries, p. 7-10

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children’s rights, particularly with the aim to remind Th ird Countries to undertake effective measures to promote and protect children’s rights, including by taking into account the concluding observations of the Committee on the Rights of the Child and of other relevant treaty bodies, using information from UN agencies, regional organisations, national independent institutions, civil society organisations; Bi- and multilateral cooperation: – Scaling up development and humanitarian assistance programs focusing on children’s rights; – Raising the rights of the child in trade negotiations, programming discussions, country strategy papers, dialogues on development goals and National Action Plans for children as foreseen under UNGASS; – Using bilateral and Community Funding and development cooperation programs when funding projects to promote the rights of the child; – Aiming to improve coherence between activities undertaken by Member States as well as in the overall European Union’s external action on children’s rights, particularly in Priority Areas; – Strengthening national structures and institutions, promoting legislative reform in conformity with relevant international standards, developing independent child rights institutions in accordance with the Paris Principles; – Developing child sensitive indicators and child impact assessments; – Promoting the involvement of civil society and child participation. Developing partnerships and intensifying coordination with international stakeholders, e.g.: – The UN, in particular UN human rights mechanisms, Special Procedures and treaty bodies, in particular the Committee on the Rights of the Child; – UN organizations, especially UNICEF, OHCHR, ILO, WHO, UNFPA; – Regional organizations, in particular the Council of Europe and the OSCE; – The European Forum on Children’s Rights; – Public-private partnerships, research institutions; – Civil society and international financial institutions.

In its external human rights policy the EU is to in multilateral fora and in relations with third countries advance their adherence and implementation of international norms and standards and the cooperation with international human rights mechanisms and procedures; help reinforce the capacity for the promotion and protection of children’s rights at the national level; help improve monitoring processes and structures; promote the allocation of the resources for the promotion and protection of children’s rights; promote law reform for the promotion and protection of children’s rights; combat and discourage violations of children’s rights; empower children to more effectively participate in decision making and implementation of policies affecting them and to facilitate their participation; to enhance the capacities of families and other caretakers to be able to fully carry

The European Union’s Work on Children and Armed Conflict

out their roles with regard to the protection of children’s rights; and support the development of awareness raising programmes on children’s rights.52 Separate implementation strategies are to complement the Guidelines and these strategies will form the basis for specific action to be taken in the priority areas.53 It is the COHOM that is to choose a priority area for a period of two years regarding different sets of children’s rights, as well as establishing a complementing implementation strategy.54 This is to be done with the purpose of the EU being able to specifically address different groups of human rights for better implementation and the priority areas will be regularly reviewed and updated. COHOM chose as the first priority area: “All forms of violence against children”.55 The Guidelines specifically state that COHOM can informally exchange views with external third parties, and then with particularly NGOs and international organizations.56 The EU adopted a Communication in July 2006 called “Towards an EU Strategy on the Rights of the Child”.57 This Strategy was developed with consultations with several partners outside of the Union, such as UNICEF, the Council of Europe and different NGOs working on the rights of children. This Communication launched a long-term EU Strategy to promote and safeguard children’s rights in general, and the Strategy incorporated both the internal and the external EU policy areas. The Strategy on the rights of the child was followed up at a meeting on 26 May 2008. The EU Strategy on the Rights of the Child has seven specific goals:58

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EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines D) Implementation (i) General action to strengthen children’s rights a-i. EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines D) Implementation (ii) Specific action to strengthen children’s rights in Priority Areas. EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines D) Implementation (ii) Specific action to strengthen children’s rights in Priority Areas. EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines D) Implementation (ii) Specific action to strengthen children’s rights in Priority Areas. EU Guidelines for the Promotion and Protection of the Rights of the Child, Updated 2007, III Operational Guidelines D) Implementation (iv) Informal platform for exchange of views with external third parties. European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909 European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909

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– – – – – – –

7.3.1.

to capitalize on existing EU policies and structures; to promote children’s rights in EU relations with partner countries; to incorporate children’s rights into all EU policies and programs; to identify future priorities and launching a broad public consultation to develop a long-term children’s rights strategy; to improve awareness of (i) children’s rights and (ii) EU action in this field; to train staff to increase their expertise on children’s rights; to improve cooperation and consultation between stakeholder bodies.

Different Country Programmes on Children’s Rights and Children Affected by Armed Conflict

The EU entered into a strategic partnership with the ILO in July 2004 and the EU agreed on a programme with its APC partners to work to end child labour in accordance with ILO’s International Program for the Elimination of Child Labor (IPEC).59 Within this context, with regards to the developing world, the EU has initiated different country programmes regarding children’s rights that include:60 – – – –

fighting child abuse, in South Africa improving juvenile justice, in Cameroon improving birth registration, in Bangladesh supporting welfare protection for HIV/AIDS, Lesotho, Swaziland.

Through the Promotion of Democracy and Human Rights programme, now replaced by the European Instrument for the Promotion of Democracy and Human Rights (EIDHR) programme several different EU child rights projects have been funded, and these include programmes for both children affected by armed conflict and other children:61 – – – –

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rehabilitation of former child soldiers in Angola, Ethiopia and Sierra Leone combating child trafficking in West Africa combating sex tourism involving children eradication of female genital mutilation.

European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909 European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909 European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909

The European Union’s Work on Children and Armed Conflict

The Commission as part of the European Instrument for Democracy and Human Rights specifically “earmarked” for 2007–2013 EUR 6.8 million to protect the rights of children in armed conflict, and it is civil society that primarily through different activities is to implement these projects such as on preventing child recruitment and reintegration of former child soldiers as for instance noted above.62 With in 2007 new financial instruments the EU was able to establish a thematic programme “Investing in People” that was to allocate EUR 90 million for seven years to finance different child rights programmes.63 These funds are to be used for programmes such as child labour, child trafficking, child soldiers and violence against children. In 2008 the EU decided on two separate thematic areas for which different projects could be funded. These two areas were “children affected by armed conflict” and “child trafficking”.64 The EU set out a public call for proposals to be funded in 2008 and under the Czech presidency the EU was in the process of determining which proposals to accept and fund.65 For 2009 there was another call of proposals with the proposed theme of “child participation”.66 The EU does not draw such stark lines between the situation for children affected by armed conflict and other children as the UN does. The EU Guidelines on Children and Armed Conflict are to complement the EU Guidelines for the Promotion and Protection of the Rights of the Child. At the UN the work regarding the situation for children affected by armed conflict is more separated from other child rights programmes. This makes the EU system a potentially more flexible system than the UN, because there is a wider pool of funding available for different projects that for instance NGOs would be able to find support for. With regards to the two guidelines there are two parallel tracks of proposals set out for EU sponsored projects.67 However, regarding the project “Investing in People” priority will be given to NGOs in situations of armed conflict in the context that it is also a priority for the EU to strengthen civil society organizations.68 Sometimes international organizations with strong links to civil society organizations will be awarded funding for a project in this context.

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European Commission, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Regular review of the guidelines, http:// ec.europa.eu/external_relations/human_rights/child/ac/index.htm, 2008-09-09 European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909 Information from the European Commission, Brussels, by phone, January 23, 2009 Information from the European Commission, Brussels, by phone, January 23, 2009, Czechoslovakia held the presidency of the European Union from January 2009 to 30 June 2009. Information from the European Commission, Brussels, by phone, January 23, 2009 Information from the European Commission, Brussels, by phone, January 23, 2009 Information from the European Commission, Brussels, by phone, January 23, 2009

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“Guidelines” are acts of law which are binding on the EU member states and issued by the European Commission or the European Council.69 The member states are obliged “to implement the objectives that are set out in the guidelines and to ensure that their own national legislation is in turn altered within a specific time period”.70 At the EU meeting in May 2008 the member states discussed the checklist interpretation regarding the protection of children in armed conflict. The Council of Ministers adopted conclusions in May 2008 that said that the promotion and protection of the rights of the child should be integrated into the external action of the EU.71 The external action includes the development and humanitarian dimensions, as well as the Checklist for the integration of protection of children affected by armed conflict into ESDP operations.72 The UN 1612 mechanism was taken into consideration. The priority areas for the EU regarding children in armed conflict include implementation of the relevant guidelines, follow-up, reporting and education, and especially education has become one of the priority issues for the EU regarding children in armed conflict.73 The 2008 Humanitarian Consensus Action Plan, which is the most important EU Commission document on humanitarian aid, does not include education, as the European Commission’s Humanitarian Aid department regards education to be a development issue and not a humanitarian issue.74 But at the same time, the European Commission “has an active bilateral development assistance program on education in 25 countries which are on OECD’s list of fragile states”.75 7.4.

The European Commission’s Humanitarian Aid Department

The EU is one of the largest providers of humanitarian aid in the world and its mechanism to provide aid is through the European Commission’s Humanitarian

69 70 71 72

73 74 75

Blair, A., Companion to the European Union, 2006, Glossary, ‘Guidelines’, p. 200 Blair, A., Companion to the European Union, 2006, Glossary, ‘Guidelines’, p. 200 Information from the European Commission, Brussels, by phone, January 23, 2009 European Commission, External Relations, The EU’s human rights and democratization policy, The Rights of the Child, http://ec.europa.eu/cgi-bin/etal.pl, 2008-0909 Meeting at the Swedish Foreign Ministry, Stockholm, June 12, 2008 Save the Children, The Future Is Now, Education for children in countries affected by conflict, 2010, p. 38 Winthrop, R., Punching Below Its Weight: The U.S. Government Approach To Education in the Developing World, A Special Focus on Conflict-Affected and Fragile States, Center for Universal Education at Brookings, Working Paper 1, February 2010, p. 5

The European Union’s Work on Children and Armed Conflict

Aid department (ECHO) and the Commission has the responsibility for half of the EU’s total humanitarian funding.76 Council Regulation (EC) No. 1257/96 defines ECHO’s mandate and it stipulates that the only purpose with the humanitarian aid is to prevent or relieve human suffering, and that the Commission’s aid decisions “must be taken impartially and solely according to the victim’s needs and not be guided by, or subject to, political considerations”.77 The European Commission funds projects that are to:78 – – – – – –

Save and preserve life during emergencies and their immediate aftermath in man-made natural disasters; To provide assistance and relief to people affected by longer-lasting crises such as civil wars; To finance the delivery of aid, working to ensure that aid is accessible to those for whom it is intended; To assist refugees or displaced people wherever they fi nd sanctuary and to help them resettle if they are able to; To support short-term rehabilitation and reconstruction work to help victims regain a minimum level of objectives…; To ensure preparedness for natural disasters, in particular by setting up earlywarning systems…

The implementation of the ECHO humanitarian aid is conducted through different relief organizations, and they include about 200 European NGOs relief organizations, specialized UN agencies (such as UNICEF, WFP, OCHA) and members of the Red Cross/Crescent movement.79 One third of the ECHO staff is permanently stationed in crisis zones worldwide, and their work includes to assess at a disaster site the humanitarian situation directly, to identify the most urgent needs and to liaise with partner organizations that are implementing the humanitarian projects.80 The ECHO field staff also monitors that the aid projects are being properly implemented and evaluates what impact the projects are having. The Commission takes decisions regarding funding throughout the year, and it has one tool at its disposal in cases of sudden crisis that is termed a fast track tool, 76 77 78 79 80

European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007

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the “primary emergency decision”.81 In these cases the Commission must deliver a decision within 72 hours from that the event provoking the action took place to determine what action to take. With regards to longer term conflict, ECHO prepares annual global action plans regarding a specific country or region.82 ECHO has done this with respect to Darfur and the Middle East. The European Consensus on Humanitarian Aid acknowledges that children are especially vulnerable in humanitarian crises and within this framework the European Commission is to “pay special attention” to children.83 The Commission has supported several humanitarian interventions that include a child component, such as demobilization, rehabilitation and reintegration projects in Uganda, health and nutrition projects in Sudan, Colombia and Palestine, psychosocial support in Sierra Leone, Sudan, the West Bank, Gaza Strip and Lebanon, funding schools in emergency camps for displaced persons in for instance DRC, Sudan, Sierra Leone, and family tracing and reunification in Colombia.84 ECHO’s most extensive relief operations have included in the Middle East (the Palestinian territories and Lebanon), the Democratic Republic of Congo (DRC), the Sahel region, Chad, Sudan (Darfur in particular), Afghanistan, Russia (Chechnya), Burundi, Liberia, Myanmar/Thailand and the Greater Horn of Africa.85 The EU Commission also gave financial support through ECHO to the revision of the “Cape Town Principles” in 2006 which resulted in the new set of guidelines the “Paris Principles” and the Paris Commitments, its political declaration.86 As a follow-up and part of its political dialogue with different governments on the issue of child soldiers, the EU had a campaign of political démarches in May–June 2007 to implement the Paris Principles.87 81 82 83

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European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 EU, Update of the EU Guidelines on Children and Armed Conflict, 2008, Annex II EU Actions in the field of children and armed conflict (Indicative), Community Instruments EU, Update of the EU Guidelines on Children and Armed Conflict, 2008, Annex II EU Actions in the field of children and armed conflict (Indicative), Community Instruments European Commission, Humanitarian Aid, Background and mandate, Humanitarian Aid: Frequently asked questions, Ref: MEMO/07/238, 13/06/2007 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, DDR, http://ec.europa.eu/external_relations/human_ rights/child/ac/index.htm, 2008-09-09 EU, External Relations, Children and armed confl ict, The EU’s human rights and democratization policy, Political Dialogue, http://ec.europa.eu/external_relations/ human_rights/child/ac/index.htm, 2008-09-09

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EU’s sanctions laws can come into play regarding its development and humanitarian aid programmes. All national development and humanitarian aid programs are planned and carried out according to the EU’s sanctions laws.88 In the case that an organization has been termed a terrorist organization, such as Hamas and PFLP have, then to directly or indirectly provide economic resources or financial services to such an organization is prohibited according to EU law and it is also to be criminalized according to the national laws of member states.89 Because of the international and national sanctions laws, for instance Swedish aid can only be provided directly to especially chosen projects in the OPT and need to be monitored and followed-up with the purpose of securing that the money goes to support those projects it was intended to and not to support Hamas or the PFLP.90 7.4.1.

The European Union and Children and Armed Conflict in Colombia

The EU has supported the Justice and Peace Law of 2005 in Colombia while at the same time having expressed concerns about the Law, but the EU Council argued that if its implementation was made in an effective and transparent manner it would positively contribute to peace in Colombia.91 The negotiations that the Colombian government conducted on the demobilization of the paramilitaries was supported by the EU, but the EU conditioned its support on the government adopting a legal framework that would be in accordance “with international commitments and respect for victims’ right to truth, justice and reparation”.92 Within this context the EU Council made clear that the EU and the EU member states would help the government and the civil society to give assistance to the conflict-affected communities, the victim groups, to local reconciliation efforts, and to the child soldiers’ reinsertion and demobilization which would complement the work of the UNICEF and other organizations.93

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Rådets gemensamma ståndpunkt 2001/931/GUSP, rådets förordning (EG) nr. 2580/2001 och lagen (1996:95) om internationella sanktioner, See Samarbetsstrategi för utvecklingssamarbetet med Västbanken/Gaza, January 2007-June 2008. Rådets gemensamma ståndpunkt 2001/931/GUSP, rådets förordning (EG) nr. 2580/2001 och lagen (1996:95) om internationella sanktioner, See Samarbetsstrategi för utvecklingssamarbetet med Västbanken/Gaza, January 2007-June 2008. Meeting at the Swedish Foreign Ministry, Stockholm, June 12, 2008 European Commission, Colombia, Country strategy paper, 2007-2013, 20.03.2007 (E/2007/484), p. 11 European Commission, Colombia, Country strategy paper, 2007-2013, 20.03.2007 (E/2007/484), p. 11 European Commission, Colombia, Country strategy paper, 2007-2013, 20.03.2007 (E/2007/484), p. 11

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Fift y-four per cent of the rural families in Colombia do not own any land, of about 1.3 million rural families.94 Women make up 24 per cent of the heads of households in the rural areas and 57 per cent of these women do not own any land. Every year more than 100,000 hectares of the natural forests are being lost due to “poverty, illegal logging, increasing use of land for agriculture and the cultivation of illegal crops”.95 Furthermore, land erosion is a problem in 48 per cent of the territory in the whole country. Of Colombia’s GDP 0.7 per cent is allocated for social assistance to what is considered “the most vulnerable groups” in the country.96 They include children, young heads of household, educationally disadvantaged people, internally displaced persons and homeless people. In addition, 39 per cent of the Colombian population are without health insurance.97 The EU’s “Response Strategy” for Colombia works at three levels, to provide assistance on a short-term, medium-term and long-term basis. The humanitarian aid from EU for conflict-affected persons is intended to be given on a short-term basis for a maximum of 12 months, and thereafter the EU will continue with additional community programmes, which in turn are to reflect “the link between emergency aid, rehabilitation and development”.98 Within this context the EU on a short-term basis first gives “assistance to the victims of violence” in Colombia.99 This assistance includes as noted before giving help also to the conflict-affected communities, and to the reinsertion and demobilization of child soldiers. With regards to providing assistance on a medium-term basis the focus is on “promoting peace” locally and nationally, which includes “promoting human rights, good governance and the fight against impunity” and “building the capacity of the Colombian government and society to fight drug production and trafficking and the illicit spread of small arms and light weapons”.100 With regards to providing assistance on a long-term basis the focus is for the EU “to promote development

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European Commission, (E/2007/484), p. 13 95 European Commission, (E/2007/484), p. 15 96 European Commission, (E/2007/484), p. 14 97 European Commission, (E/2007/484), p. 14 98 European Commission, (E/2007/484), p. 20 99 European Commission, (E/2007/484), p. 24 100 European Commission, (E/2007/484), p. 24-25

Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007

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for all” with the objective to address the causes of armed conflict.101 In this context the EU intends to focus on developing “social cohesion policies” which are to address how to provide and strengthen social assistance, educational and employment opportunities to young people who many times as a result of not having access to neither feel despair which the different armed groups exploit.102 The EU’s “development for all” strategy includes social cohesion policies, economic and commercial development, the quality of the environment and the safeguarding of biodiversity and the promotion of the knowledge-based society.103 The European Parliament, the EU Council of Ministers, the EU member states and the European Commission adopted in December 2005 the “European Consensus on Development,” and the EU strategy for Colombia for the period of 2007–2013 is to be considered within that framework.104 The declaration, the “European Consensus on Development,” stipulates that in the implementation of EU’s development policy it is necessary to include some cross-cutting issues such as children’s rights, the promotion of human rights, gender equality, democracy, good governance, the rights of indigenous peoples, conflict prevention, sustainable environment and HIV/AIDS.105 This is being reflected in EU’s strategy for Colombia for the period of 2007–2013 where it is stated that in its implementation and funding of the strategy all stages and actions are to take into consideration issues such as the rights of children, human rights, democracy and good governance issues, gender equality, the rights and means of subsistence of the indigenous population, culture protection and promotion, protection of the environment, the fight against HIV/AIDS and conflict resolution.106 The EU’s strategy for Colombia is funded through the Community budget’s programmable part of assistance to third countries concentrating on peace and stability, including alternative development, the rule of law, justice and human rights, and competitiveness and trade.107 For the period of 2007–2013, about EUR 160 million in EU programmable aid for Colombia has been allocated plus that

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European Commission, (E/2007/484), p. 25 European Commission, (E/2007/484), p. 25 European Commission, (E/2007/484), p. 25-26 European Commission, (E/2007/484), p. 7 European Commission, (E/2007/484), p. 7 European Commission, (E/2007/484), p. 26-27 European Commission, (E/2007/484), p. 27

Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007 Colombia, Country strategy paper, 2007-2013, 20.03.2007

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funding will be made available for some non-programmable instruments and thematic programmes.108 The European Commission’s Global Plan for the victims of the conflict in Colombia encompasses EUR 12 million in humanitarian aid.109 The Plan is to support the displaced population, the people who have been blocked in their areas of residence due to the conflict as well as those who have had to flee to neighbouring countries. Children are a priority of the Plan, and the funding aims at providing the targeted children with an informal education, as well as with psychosocial and nutritional support.110 One project that the Commission funds through this Plan is a project in the suburbs of Bogota run by the NGO Diakonia and which protects about 2,000 children aged nine to 18 years and which also is assisting them in returning to the government’s public educational system.111 Among other things, Diakonia provides protection to the children so that they will not be forced to join an armed group and this is done by walking with them to school for instance. The European Commission’s funding of the Global Plan is provided through ECHO and distributed to different humanitarian NGOs and international agencies.112 7.5.

The European Union Study on “Enhancing the EU Response to Children Affected by Armed Conflict”

The Slovenian EU presidency commissioned a study on “Enhancing the EU Response to Children Affected by Armed Conflict”, which was published in December 2007, and the findings will be presented here.113 Within the human rights field the EU has adopted several guidelines known as the EU Human Rights Guidelines, apart from the EU Guidelines on Children and Armed Conflict.114 They all relate to children and armed conflict (CAAC) 108 European Commission, Colombia, Country strategy paper, 2007-2013, 20.03.2007 (E/2007/484), p. 27 109 European Commission, Humanitarian Assistance to the victims of conflicts in Colombia, www.welcomeurope.com, accessed 2009-02-25 110 European Commission, Humanitarian Assistance to the victims of conflicts in Colombia, www.welcomeurope.com, accessed 2009-02-25 111 European Commission, Humanitarian Assistance to the victims of conflicts in Colombia, www.welcomeurope.com, accessed 2009-02-25 112 European Commission, Humanitarian Assistance to the victims of conflicts in Colombia, www.welcomeurope.com, accessed 2009-02-25 113 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82 114 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 17

The European Union’s Work on Children and Armed Conflict

and include guidelines on the Death penalty (1998), Torture and other cruel, inhuman or degrading treatment (2001), Human rights dialogues with third countries (2001) and Human rights defenders (2004). Furthermore, the then EU High Representative of the Common Foreign and Security Policy, Javier Solana’s Personal Representative for Human Rights, brought up children and armed conflict issues.115 Furthermore, the EU Guidelines on Children and Armed Conflict are acknowledged for being comprehensive, concise and easy to understand.116 With regards to the priority countries it has not been clear how the priority countries are being selected.117 In addition, there has been an ambiguousness as to what the definition of a priority country practically means in relation to action in the field. Importantly many who work within the EU (in EU missions or country missions) in priority countries have been unaware that these countries are a priority country, and many have also not known about the EU Guidelines on Children and Armed Conflict.118 A survey found that 50 per cent of those contacted for the survey at the EC delegations either responded inaccurately or had no knowledge of the priority country status of their country. Regarding the financial instruments there is a need to develop a certain degree of flexibility for CAAC programming, and in this context the EU has not had a particularly good reputation among NGOs with regards to flexibility.119 There are exceptions such as the EU funding in Somalia of Save the Children/ Denmark education projects, where both the “flexibility and understanding” of the difficulties with programming in complex environments were recognized by the parties. In this case, in order to be able to offer education the organizers used the human resources that were available which were the local teachers who had not received adequate education or training as teachers, but who were provided

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Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 17 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 17 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 18 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 18 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 19

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with skills with the intention to link short-term relief work with laying the foundation for long-term development.120 The strategy that ECHO has adopted for children in man-made crises and natural disasters concentrates on three areas: “1) reuniting families and unaccompanied children, 2) education in emergencies and 3) children associated with armed groups, including DDR of children”.121 The instruments that the EU employs with regards to its response to CAAC include three kinds: diplomatic action such as political, dialogue, démarches and diplomatic pressure and the promotion of activities in international forums like the UN; the response involves multilateral and bilateral programming mostly in relation to development cooperation and humanitarian assistance; and it involves crisis management.122 New financial instruments for external relations were developed in 2006 by the EU which consolidated 75 of the instruments for internal and external funding for CAAC issues that existed before the new instruments.123 The new instruments provide a legal basis to the funding of CAAC projects and programmes as nearly all of the new instruments refer to child rights and CAAC issues. In this context it is important to note the Cotonou Partnership Agreement which distributes the funds from the European Development Fund (EDF) and which refers to CAAC issues.124 The EU’s response to CAAC is complex as several national and international institutions are involved in the implementation of the different programmes.125 The EU institutions involved in the implementation of the CAAC issues include the EU Commission, the Directorate-Generals for Development (DG DEV) and External Relations (DG RELEX), the Council of the EU, the Council Secretariat and its working groups, the 27 member-states’ foreign ministries, embassies and 120 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 19 121 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 19: DDR, Disarmament, Demobilization and Reintegration. 122 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 18 123 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 19 124 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 19 125 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 20

The European Union’s Work on Children and Armed Conflict

missions, and they all are engaged in diplomatic action and development cooperation when appropriate.126 In addition, the European Parliament and the individual parliamentarians have become especially involved in CAAC issues and this has involved oversight and expressing concern about the lack of mainstreaming of the issue and the limited use of diplomatic instruments in the CAAC area.127 For the EU to be able to respond to different CAAC situations, adequate and reliable information needs to be gathered and then analysed. While there is no shortage of information about the situation of children in armed conflict and the EU COHOM receives reports about CAAC from different countries on a regular basis, there are several challenges for the EU as a whole to be able to respond properly to CAAC.128 One is that there is too much information and desk officers in the European Commission have said that they get overwhelmed by all the information given to them by NGOs, UN agencies and other sources, and not only on children but also on a number of issues such as human rights, governance, humanitarian issues, development indicators and conflict prevention.129 To keep oneself informed on this range of issues covering many different fields was considered to be of special concern. This might also be because many do not have that knowledge to begin with, or have a mind-set that focuses on only one field of interest. Another challenge has been that outside contributors to the EU on CAAC issues, such as NGOs, the UN and specialized agencies, do not know who to contact within the EU missions or at headquarters with all their information.130 This is because there has been no focal point within the EU at headquarters for CAAC issues either for analysing or to provide action on the issue.131 The author has 126 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 20 127 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 20 128 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23 129 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23 130 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23; This has also been the experience of this author as it has been very difficult to be able to talk to somebody with knowledge of the CAAC issues within the EU. 131 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23

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noted that there is also a need for a prospective focal point to provide information to outside actors on what the EU does on CAAC as well as on the Guidelines for CAAC. Instead the work of the EU on CAAC involves several institutions, individuals and programmes.132 For the EU how to manage the information given by these different outside sources remains a challenge. Also, there is a lack of transparency within the EU, which many NGOs have noted, in that the quality of the information that is being used cannot be verified to make decisions regarding CAAC as many EU documents are not made public.133 This was also the experience of the author who was told that documents on issues that were being discussed were not public documents and therefore the author could not take part of them. EU officials say that since some information is sensitive it cannot be made publically available, so therefore for instance the EU Human Rights Factsheets on CAAC are not made public.134 This has consequences for how the different EU institutions and officials respond to CAAC issues in particular countries, in that they might not have adequate quality information regarding CAAC issues to make informed decisions and to develop proper and sustainable strategies and thus the implementation suffers on the ground. As has been noted many EU officials in the various EU institutions and in the EU member states do not have the same level of knowledge and information on CAAC issues and therefore the outcome varies to a great degree.135 Within the three areas of diplomatic actions, multilateral and bilateral programming and crisis management, the decision-making processes within the EU have not been in alignment.136 This has had consequences for the EU in making collective decisions especially in the development cooperation area, which has resulted in a waste of resources.137 With regards to the EU making collective deci132

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Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 23: See survey results. Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24

The European Union’s Work on Children and Armed Conflict

sions about CAAC there are three levels of decision-making related to CAAC.138 The first level is within the European Commission and concerns diplomatic action, and bilateral and multilateral programming choices, the second level is between the EU member states and the Commission and the third concerns the EU and the United Nations.139 In this context the CAAC issues that need an approach of coordination and complementarity has been hindered by the structure of the EU vis-à-vis the divisions of responsibilities among its three pillars.140 For instance, there are credibility issues involved in terms of how serious the EU is perceived to be about CAAC issues, when the EU in its diplomatic arena expresses its outrage over the use of child soldiers while simultaneously providing governments with budgetary assistance that are themselves committing violations of children’s rights.141 With the EU Reform Treaty there is potentially a better coordinating system in place with the new High Representative of the Union for Foreign Affairs and Security Policy that brings together the Human Rights (HR) and External Relations Commissioner as well as the service of “external action”.142 The first High Representative of the Union for Foreign Affairs and Security Policy, Catherine Ashton (who is also the Vice-President of the Commission), came for instance out with a statement on the tenth anniversary of the Optional Protocols to the UNCRC, saying that:143 The UN Convention of the Rights of the Child and its two Optional Protocols form the core of the EU’s external action on the rights of the child. The Lisbon Treaty further reinforces our commitment by including specific provisions on children. 138

Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 139 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 140 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 141 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 142 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 24 143 European Union, Statement by High Representative Catherine Ashton on the 10th anniversary of the Optional Protocols to the UN Convention on the Rights of the Child on the involvement of children in armed conflicts and on the sale of children, child prostitution and child pornography, Brussels, 25 May 2010, A88/10, www.eeas. europa.eu

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We will continue to translate our commitments into concrete actions, particularly through the implementation of the EU human rights guidelines on the rights of the child and on children affected by armed conflict, as well as the European Commission Communication “A Special Place for Children in EU External Action.” We will continue to systematically bring up children’s rights issues with our partner countries and within the United Nations, to respond to children’s rights and needs in our development cooperation and to cooperate with civil society.

With the Lisbon Treaty “the protection of the rights of the child has become a specific objective of the EU external policy”, however “much remains to be done regarding the objective of putting this political commitment into practice”.144 Within the development cooperation area, the European Consensus on Development, which the EU member states agreed upon in November 2005 particularly stipulated that the EU response to CAAC needs to be improved and that related issues including child rights, human rights, conflict prevention, gender equality and good governance require additional mainstreaming.145 The Petersberg Communiqué on European Development Policy from May 2007 makes the link between children, peace and security and how development is addressed by the EU. The European Consensus on Development and the European Consensus on Humanitarian Aid should provide direction and guidance to every EC and EU member states’ multilateral and bilateral strategies, programming and projects.146 It is a huge challenge to implement the EU planning of CAAC issues across the areas of diplomatic action, multilateral and bilateral programming, and crisis management because they have different timescales, institutions and use different processes.147 It has been the EU Troika that most often has led diplomatic action planning at international forums and at the country level.148 The EU has in a consistent manner taken joint action at the United Nations Security Council and

144 TEU Art. 3, European Commission, Development for the Next Generation, Children’s Rights in Development Policy, eudevdays.eu/event_details_en.cfm?itemid=64 145 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 15 146 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 16 147 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 26 148 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 26

The European Union’s Work on Children and Armed Conflict

General Assembly with regards to issues on CAAC.149 This was reflected when the EU group at the UN General Assembly argued for the implementation of the Paris Principles. In addition, with assistance from the Troika, the different EU Missions in a country need to agree on which diplomatic action to take. How CAAC issues get into the planning stages of development and humanitarian processes has been unclear, even as the EU Guidelines on CAAC says that the CAAC issues should be mainstreamed.150 However, CAAC issues have not been regularly part of the EU Country Strategies or Mid-Term Reviews even regarding the priority countries. As has been noted, this is reflected in that many officials working in the EU Country Missions do not know that their country is a priority country. While the EU Guidelines on CAAC lay the groundwork for “a formalized information gathering process”, the actual planning for how Country Strategies are to be implemented such as the National Indicative Programmes has very seldom included CAAC issues.151 There are exceptions such as the National Indicative Programmes for Colombia and Sri Lanka, where in the case of Colombia children’s rights were recognized as a crosscutting issue and encompass DDR projects and where in the case of Sri Lanka there was a wider focus on human rights in general and conflict sensitivity was stressed.152 Then again, for example in Burundi which was a priority CAAC country only one small project was funded by EIDHR and it involved local NGOs working to have children’s rights respected, and in Afghanistan which is still another priority country there had by December 2007 been only one funded CAAC project area which was directed at urban children but did not especially target the conflict-affected children.153 Concern has been expressed that if CAAC issues are not mainstreamed and acknowledged in a serious and conscious manner across the EU, then there might not be enough funding available for CAAC issues, which is a small area in the context of much broader EU engagements, as other priority areas would take

149 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 26 150 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 26 151 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 152 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 153 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27

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precedence.154 One example would be the Africa-EU Strategic Partnership, which was entered into in 2007, and where foreseeable long-term financial assistance to CAAC issues was asked for, but enough funding might still not become available due to other priority areas taking precedent because they are better acknowledged within the EU.155 In the context of EU crisis management, by 2007 about 11 civilian and military crisis management missions were taking place of which for instance the missions for Afghanistan, DRC and Sudan/Darfur act in priority countries for CAAC.156 The Checklist for the Integration of the Protection of Children into ESDP Operations came about to remedy the lack of focus on child protection issues. In this context the EU Concept for Support to Disarmament, Demobilization and Reintegration (DDR) was approved by the EU Commission and Council in 2006, and issues of CAAC are mainstreamed by this.157 Contained in the COHOM CAAC Implementation Strategy was a call that CAAC be mainstreamed in EU SSR and DDR policies. The EU DDR document makes reference to international legal documents as well as the EU Guidelines on CAAC and provides guidance “on the type of activities that should be funded”.158 The EU DDR Concept entails that every child that has been a member of an armed forces or group should be part of a DDR process and that such a process is not only for those participating in combats, and it makes a distinction between how girls and boys are affected. The Concept stipulates that the DDR of children should not await a peace agreement but should be initiated right away, and that there should be no constraints on DDR programmes funded by the EU.159 It further states that “one-size-fits-all approaches should be avoided as children need to benefit from programmes specifically designed to address their particular needs”, which in-

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Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 34, Box 9 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 34, Box 9 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 34, Box 9

The European Union’s Work on Children and Armed Conflict

dicates that there is some awareness of the different needs and experiences of the child soldiers. Within the programme “Investing in People” the Commission is to provide funding for a programme on children’s DDR at the ILO’s International Training Centre, wherein preventing the recruitment and use of child soldiers and rehabilitating child soldiers both in conflict and post-conflict situations are to take place through in particular establishing economic opportunities.160 The documents establishing the EU mission to Chad/Central African Republic made no reference to CAAC issues even though children have been suffering immensely in those two conflicts, and this needs to be seen in the context that the UNSC Resolution 1778 which authorizes the engagement of the EU missions in these countries refers to CAAC issues.161 The EU diplomatic actions concerning CAAC involve both long-term and short-term approaches. The long-term approach is to engage with third countries in the promotion and ratification of international legal instruments as related to the rights of children, as well as the monitoring of how these instruments have been implemented. This long-term approach will hopefully lead to a change where the protection of children will become a priority. The use of démarches is a short-term initiative and, as an example, in 2006 the EU Troika with regards to CAAC issues used démarches in Burundi, Uganda, Colombia, Côte d’Ivoire, DRC, Liberia, Nepal and Sudan.162 Another issue is that much diplomatic action in particular with regards to political dialogue is being carried out in a confidential manner, and that leads to a situation where there is not much knowledge as to precisely what actions are being carried out by the EU.163 But, it was observed that the EU diplomatic actions should be carried out adhering to the UNSC resolution 1612 and together with UN member states as appropriate “for best impact”.164 Many projects in accordance with the EU Guidelines on CAAC are being implemented by the EU, and about 278 such various bilateral and multilateral projects spanning 40 countries and five regions were being carried out, as a study 160 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 34, Box 9 161 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 27 162 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28 163 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28 164 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28

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conducted in 2004 at the time of the presidency of the Netherlands showed.165 Issues that were focused upon included education, health, demining, juvenile justice, relief, DDR, child rights and psychosocial support. The EU implements CAAC projects in both priority countries and non-priority countries such as Angola. While all of these activities have been going on it was at the same time shown in a survey that of the EU missions and EC delegations that responded about half of them neither had nor oversaw any programming with regards to CAAC, and some responded that they did not know whether they had such programming.166 This leads to, as has been noted, that it is not clear and that there is much confusion as to whether implementation of projects is actually taking place, if planning or prioritization of such implementation occurs, or are being covered by other projects.167 With regards to the EU crisis management missions, training on CAAC issues has been recognized as needed, but there is not much knowledge about if such training is taking place in the on-going missions.168 There had been no comprehensive evaluation of the EU’s work on CAAC, which many working within the EU would have welcomed and some even said was overdue.169 This would help identify the different CAAC issues that need to be acknowledged and help mainstream the EU’s work on CAAC. While at the UN in New York and Geneva and at other international fora the EU acts in one voice and is coherent on CAAC issues, this is not the case at the country level.170 At the country level the work of the EU on CAAC issues has been much fragmented and uncoordinated which has made it difficult to determine what the EU is actually doing on CAAC issues and how effective the impact of the

165 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28 166 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28 167 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 28 168 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 29 169 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 29-30 170 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 30

The European Union’s Work on Children and Armed Conflict

different EU CAAC projects in reality has been.171 This fragmented approach has concerned all the various EU instruments, that is diplomatic action, bilateral and multilateral programming and crisis management.172 Further, the fragmentation has involved member states, with some member states more committed to CAAC issues than others, and EU institutions and mechanisms. Much more coordination and mainstreaming of bilateral and multilateral programming and coordination of diplomatic action and such programming as well as to incorporate CAAC issues into crisis management missions are much needed.173 In addition as has been noted before, the lack of knowledge and recognition of CAAC issues within the EU at the headquarters and at the country level puts limits on how effective the EU can be with regards to CAAC issues.174 It has been noted that the fragmented approach stems from there not existing a high-level leadership focal point on CAAC issues at the headquarters; however the actual centre of attention should be at the regional and country level.175 The European Commission has appointed a Coordinator of the Rights of the Child, but it is not clear how this official would work when it comes to EU’s external relations.176 However, there are some structures that are developing due to this initiative and which form a forum for the EU member states and the EU officials of the different institutions for information sharing and best practice discussions regarding diplomatic action, multilateral and bilateral programming and crisis management.177 171

Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 31 172 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 31 173 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 30 174 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 30 175 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 31 176 European Commission, Commission launches comprehensive EU strategy to promote and safeguard the rights of the child, Press Release, IP/06/92 Strasbourg, 4 July 2006, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 32 177 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency,

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It is important to note that COHOM is not much involved with bilateral and multilateral programming as this is CODEV’s domain.178 In addition, at the country level the officials who have geographic programming as their area of responsibility are not members of COHOM. In the conclusions of the General Affairs and External Relations of the Council of the European Union (GAERC) in 2005, it was noted that there was much need to have issues of CAAC mainstreamed all through the EU.179 The presidency of the European Council to the GAERC issued a report in 2007 on the EU Programme of Action on the Prevention of Violent Conflict and the report stated that there is a great need for the EU to improve its expertise concerning issues on CAAC.180 In this context also in 2007 the OECD-DAC came out with the Peer Review of European Community aid which pointed out that in general terms there is no focal point for “information, knowledge and experience” for issues of armed conflict and situations of fragility within the Community.181 Challenges for the EU concerning its effectiveness on CAAC issues include that there is little awareness and understanding of all the rights of children, as well as of needs and programming alternatives.182 Officials from the EC and EU member states who have CAAC programming as their area of responsibility do not have knowledge and experience specific to CAAC or of the rights of children. As was shown in the survey undertaken, many who are responsible for CAAC issues within the institutions of the EU or the donor institutions of the member states at the country or regional level do not have knowledge of CAAC or the

Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 32 178 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 32 179 Council of the European Union, General Affairs and External Relations-General Affairs, 2700th Council Meeting, Brussels, 14960/05 (Presse 317), 12th of December 2005; in Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 33 180 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 181 OECD-DAC. Development Assistance Committee Peer Review of the European Community, (Paris: OECD, 2007) p. 66, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 182 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37

The European Union’s Work on Children and Armed Conflict

rights of children.183 The study also showed that there is seldom a person assigned to lead on issues on CAAC in the EC delegations. To have one specialist child protection officer or a CAAC specialist in one EU mission in every EU priority country on CAAC could help remedy the situation.184 In the context of crisis management one EU human rights adviser also working on CAAC is now part of the EUSEC RD Congo and the EUPOL RD Congo missions.185 In the development cooperation area there has been a great need to provide guidance on how programming choices are to be made, strategies, mainstreaming and how these choices at the operational level can be implemented.186 In order to provide guidance knowledge, expertise and understanding of CAAC issues and children’s rights are needed and as the survey showed about 75 per cent of the respondents had no training at all on CAAC issues, and merely one person had been given some “operational guidance” concerning CAAC issues.187 One of the main factors regarding awareness-raising and how to improve practice on CAAC issues is operational guidance, as it shows how to in programming implement policy commitments.188 Within the EU sphere ECHO has a policy guidance on children affected by humanitarian crisis and independent consultants have suggested that a comparable policy guidance be developed for CAAC issues.189 The thematic programme “Investing in People”, of the EC Development Cooperation Instrument, is supporting UNICEF in creating a toolkit for the rights of children in development cooperation and government which is to

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Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 37 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 38 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 38 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 39

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encompass issues of CAAC.190 Again, the Checklist for the Integration of the Protection of Children affected by Armed Conflict into ESDP Operations is a great improvement in this context and it has been noted that this could be used as a “mainstreaming tool in other areas”.191 The EU Guidelines on CAAC and its Implementation Strategy stipulate that training is an important part of the strategy, however only some EU officials in the EC delegations or EU missions were found to have received some training on CAAC issues.192 In relation to this finding, without adequate guidance and training on CAAC issues there is a greater risk for the various officials to feel overwhelmed by too much information in a context of other additional guidelines, directives and regulations because they are not able to distinguish between what is important and not. While the EU needs to continue addressing the more traditional development areas such as health, education and humanitarian issues, it has been acknowledged that there is also a need for the EU to mainstream CAAC issues into new areas of development and peace building strategies that involve small arms and light weapons (SALW), security sector reform, disarmament, demobilization and reintegration, gender and child-based violence programmes and transitional justice.193 Especially ECHO has been planning to increase and improve its work with DDR of children and especially with the girls.194 However, the European Commission has acknowledged that the EU gives more attention and aid to some sectors and countries than it does to others.195 This reflects a lack of knowledge about which projects and programmes that are being funded and a lack of coordination of the work that is being done.

190 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 39 191 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 39-40 192 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 40 193 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 40-41, Box 13 194 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 41 195 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 41

The European Union’s Work on Children and Armed Conflict

As has been noted the EU has the ability with its development cooperation work in its relations with third countries to build solid partnerships and national capacity with regards to issues on CAAC.196 The EU already deals with government ministries, local governance structures and local non-state actors, and could use this opportunity to build strong national institutional and local capacity on CAAC issues for the long-term, but the EU most often chooses to work with international actors such as the UN and international NGOs on CAAC issues and then first and foremost on service delivery.197 With the limited knowledge and experience the EU has at both the headquarter and its country mission level on issues on CAAC, it is appropriate for the EU officials to keep in mind that there is much knowledge at the national and local level in the third countries it works in on CAAC issues and the opportunity to learn about these issues should be taken in account.198 Here follows a chart of the EC financial Instruments and their reference to children and armed conflict:199

196 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 42 197 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 42 198 Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 42 199 This chart has been taken from Annex 1: EC Financial Instruments and their reference to CAAC in Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/ dp82, p. 45: Emphasis as in text and footnotes omitted

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Instrument for Stability

Regulation establishing instrument reference to CAAC related issues Article 3 Assistance in response to situations of crisis of emerging crisis (f) support for civilian measures related to the demobilisation and reintegration of former combatants into civil society, and where appropriate their repatriation as well as measures to address the situation of child soldiers and female combatants; (j) support for measures to ensure that the specific needs of women and children in crisis and conflict situations, including their exposure to gender-based violence, are adequately met; (k) support for the rehabilitation and reintegration of the victims of armed conflict, including measures for the specific needs of women and children; 2. Non-state actors eligible for fi nancial support under this Regulation shall include: non-governmental organisations, organisations representing indigenous peoples, local citizens’ groups and traders’ associations, cooperatives, trade unions, organisations representing economic and social interests, local organisations (including networks) involved in decentralised regional cooperation and integration, consumer organisations, women’s and youth organisations, teaching, cultural, research and scientific organisations, universities, churches and religious associations and private and public foundations likely to contribute to development or the external dimension of internal policies. Article 2 scope

European Instrument for Democracy and Human Rights

Development Cooperation Instrument (DCI)

European Neighbourhood and Partnership Instrument

Pre-Accession Assistance

vi) the rights of the child, as proclaimed in the Convention on the Rights of the Child and its Optional Protocols, including the fight against child labour, child trafficking and child prostitution, and the recruitment and use of child soldiers; (iii) the promotion of high quality basic education, with particular focus on access for girls, children in conflict-affected areas and children from marginalised and more vulnerable social groups to education programmes; Article 2 Scope of Community Assistance (i) supporting policies to promote social development, social inclusion, gender equality, non-discrimination, employment and social protection including protection of migrant workers, social dialogues, and respect for trade union rights and core labour standards, including child labour; None

The European Union’s Work on Children and Armed Conflict

It has been suggested that the European Development Fund (EDF) could be used to finance CAAC programmes as is provided for in the Cotonou Partnership Agreement because it would have enough funds to do so.200 7.5.1.

The European Union Survey on Children and Armed Conflict

In 2007 the Slovenian Ministry of Foreign Affairs commissioned the European Centre for Development Policy Management (ECDPM) to examine the issue of children affected by armed conflict and the response of the European Union.201 This was to be done within the context that the three EU presidencies of Germany, Portugal and Slovenia had made the issue of children affected by armed conflict one of their priorities of the 18 month programme “Strengthening the European Union’s role as a Global Partner for Development”.202 A questionnaire was sent in October 2007 to 22 EC delegations, including those 16 countries that had been determined to be “priority countries” by the EU at the time as well as to six other countries that were or had been affected by armed conflict in the last ten years.203 In addition, one EU member state mission in each of these 22 countries was sent this questionnaire. Following the EU Guidelines on Children Affected by Armed Conflict, the questionnaire was sent to the head of the EC delegation or mission who is to be responsible for reporting on this issue. This person was asked to for200 It is the Articles 11 and 26 of the Cotonou Partnership Agreement that would allow for this, Annex 1: EC Financial Instruments and their reference to CAAC, Sheriff, A., Enhancing the EU response to children affected by armed conflict, with particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82, p. 45 201 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82:, p. 48 202 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82:, p. 48 203 The questionnaire was not sent to Burma/Myanmar because of disturbances that had taken place there at the same time as the sending out of the questionnaire, see Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM

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ward the questionnaire to the one person within the delegation or mission who would be able to answer the survey. The response rate from the 22 EC delegations was “good” with 13 responding, but the response rate from the 22 EU member states missions was so low, four, that no separate conclusions could be made.204 One conclusion from the survey was that “only a few of the delegations had appointed someone as responsible for CAAC”, which was reflected in that of the 16 EC respondents only five said that they were responsible for CAAC issues.205 These five persons were all working in those countries designated as priority countries by the EU. Eighty per cent of those responsible for CAAC issues were also responsible for human rights, development policy and programme management of assistance, and 60 per cent for gender issues as well.206 Another conclusion was that only half of the priority countries have appointed a person responsible for CAAC, and that this reflected that the EU headquarters had not provided any incentive to have such a person appointed.207 As regards whether CAAC was considered an “important” issue, 13 of 16 respondents considered CAAC “important”, “very important” or “essential” in their countries where they were based, and then children as direct or indirect victims of war were regarded as particularly important.208 However, while the 204 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 48-49 205 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 50 206 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 50 207 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 50 208 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response

The European Union’s Work on Children and Armed Conflict

delegation staff members considered the issue of CAAC to be an important issue, they were at the same time constrained by only having limited means at their disposal and there existing “no specific budget lines” for the implementation of the Guidelines on CAAC.209 One conclusion to be drawn was that the respondents believe that more attention was required and as one respondent explained:210 Although X is a priority country for children and armed conflict we have not received any specific funding for this, nor has it been taken on as a specific priority in our European development or budget line funding. So it is a priority country in name only, not in action.

That CAAC issues need much more attention is clear when the survey showed that many staff members in the EC delegations did not know that they were working in a priority country or answered incorrectly. Of the 16 responding, five said that they worked in a priority country for CAAC, five responded that they did not work in such a country, and six answered that they did not know if they did.211 However, with regards to the six responding that they did not know whether they worked in a priority country for CAAC, two of these countries are priority countries.212 Furthermore, three of the five respondents who responded that to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 50 209 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 210 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 211 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 212 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development

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they did not work in such a country were wrong, in addition to that two of these respondents had in fact CAAC as their area of responsibility.213 The four member state missions that answered the survey were all in priority countries, however it was only one of these respondents that knew that his/her country was a priority country.214 One of the member states respondents did not think that his/her country was a priority country, while two did not know that their countries were. Importantly, the one person who wrongly did not think that his/her country was a priority country had CAAC as his/her area of responsibility.215 As a conclusion, the EU Guidelines on CAAC have had very limited impact on the work of the EC delegations, as there was not much awareness among the staff members about either the Guidelines or whether their country was a priority country or not.216 This, as has been shown, included staff that were responsible for CAAC issues. While there was a good awareness in general of the issue of children affected by armed conflict by all respondents, EC delegations and member states missions, 60 per cent of the respondents had only “some awareness” of the Guidelines, while

policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 213 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 214 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 215 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51 216 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 51

The European Union’s Work on Children and Armed Conflict

20 per cent had “very limited awareness” of them.217 This result was consistent with all the respondents as well as with those coming from the priority countries. Remarkably there was less awareness of the Guidelines in those countries where they actually had a person appointed being responsible for the CAAC issues. An additional conclusion from the survey was that it is not because of the Guidelines that the respondents were generally well aware of the issue of children affected by armed conflict, and also since they were not well aware of the Guidelines they did not use them very much.218 Another conclusion from the survey was that the implementation of the Guidelines was sporadic or non-existent on the ground, and that this was the case also for the priority countries.219 The survey showed that CAAC issues were part of country strategy programmes in no more than 31 per cent of the countries including 50 per cent in the priority countries, however the CAAC issues were a bit more often included in programming even if still very limited.220 The programming was considered sporadic, only encompassing single projects and not seen as a mainstreaming issue by the respondents.221 One important finding was that local NGOs play an important role in both implementing programmes and identifying the issue of 217

218

219

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Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 52 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 53 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 53 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 54 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development

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CAAC for the delegations and missions. Some reasons as to why the country strategy programmes seldom have included CAAC issues could be that the EU delegations/missions and/or the member state missions do not bring up this issue with the national governments or that the national governments are not interested in the issue.222 Another important conclusion from the survey was that it seemed that the respondents only believed that CAAC issues were important if there was an actual on-going armed conflict. This belief has led to a lack of understanding that there are long-term consequences from an armed conflict, such as that children can be suffering from trauma, being orphans with special needs, or that since the infrastructure is lacking there are not enough schools.223 Also, as a result the respondents’ mind-set did not connect humanitarian assistance with long-term development aid, which was also because of a very limited awareness of CAAC as an issue. The respondents had received very limited training on children’s and women’s issues, as 75 per cent said that they had not received any training on these issues at all.224 This included those persons in the delegations who were responsible for the CAAC issues. In addition, a large majority was said not to have been offered any training in conflict sensitivity, and almost half of the respondents had not been trained in conflict prevention or in peace building issues.225 This finding was also noteworthy, keeping in mind that all the countries were or had recently

222

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225

policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 54 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 54 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 54 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 55 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, p. 55, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to devel-

The European Union’s Work on Children and Armed Conflict

been in conflict. One person alone among the priority countries had been given sufficient information on CAAC, while for one priority country no guidance had been given at all and for the rest of the priority countries insufficient information had been given. The information that was given came from headquarters (over half received the information from headquarters), or from international and local NGOs. In only one case did the information come from UN agencies, while none received information from another EU mission. As a conclusion there is “little or no guidance” given on how to implement the EU Guidelines on CAAC from headquarters and there is “very little information” in general on CAAC issues that come from headquarters.226 Also, there has not been any cooperation or sharing of information on CAAC issues in the field between the EU missions and the UN agencies. The funding for CAAC issues and the implementation of the Guidelines has been limited in that only 27 per cent of the respondents from the EC delegations found the funding sufficient which included 20 per cent from priority countries.227 Only 40 per cent of all found the existing funding somewhat sufficient, while 50 per cent from the priority countries found it to be somewhat sufficient. One respondent in a priority country said:228 I have never received any operational guidance on this issue. As previously stated I have currently no financial instruments available to address the issue of children associated with armed confl ict. There was one multi-donor initiative programme that addresses this issue. There was a shortfall in funding and I followed several ‘avenues’ to find additional funding but to no avail. opment policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 55 226 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, p. 55, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 55 227 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: 6.2, p. 56 228 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 56

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In another priority country a further respondent stated that:229 We hope that with the new financial instruments, the Delegation will have more flexibility in using funds in order to address different aspects of the issue.

The respondents listed five areas as the most important for how their mission impact could be improved for CAAC, with the most important listed first:230 1. 2.

3. 4. 5.

Clear priorities from headquarters on the issue Better sectoral coordination amongst EU members (on for example, education, health, governance, disarmament, demobilisation and reintegration issues) Greater complementarity between political/diplomatic and development/humanitarian response Staff training in children affected by armed conflict issues Better mainstreaming of CAAC issues into sectoral areas

While the respondents listed clear priorities from headquarters as the most important issue to improve with better coordination as second, interestingly enough they did not think that “reducing the number of other thematic priorities and reducing regulations generally” would be very important.231 As regards the question: “Does your mission have good synergy between its diplomatic/political actions with regards to children and armed conflict and its ability to target development/humanitarian programming” regarding

229 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 56 230 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/ delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 56 231 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 56

The European Union’s Work on Children and Armed Conflict

CAAC?, “some” synergy was found.232 However, not much knowledge regarding neither “any coordination and complementarity between different EC and MS diplomatic actions” on CAAC issues nor regarding “its ability to target development/humanitarian programming” were found. In this context, the respondents who gave “very good” and “good” answers came from priority countries, however they were not the persons who were responsible for the CAAC issues.233 Concluding, the survey found that between the EU missions in the field there were both “limited coordination and complementarity” on CAAC issues. In addition, just because there was a person appointed as responsible for CAAC issues did not entail that the coordination and complementarity between the EU missions increased.234 7.6.

Revised Implementation Strategy of the European Union Guidelines on Children and Armed Conflict

The EU Political and Security Committee (PSC) and the Council Working Group on Human Rights (COHOM) adopted in December 2010 the Revised Implementation Strategy, after that the EU conducted a review of its documents, policies and other developments concerning children and armed conflict.235 The review was carried out with two purposes, of which one was to establish “a more comprehensive and holistic approach” to CAAC and secondly to develop how the EU responds to this issue and how to give support to “other relevant actors” 232 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, p. 57, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 57 233 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, p. 57, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 57 234 Annex 3: Survey Results, Children affected by armed conflict, Survey of EU missions/delegations, Report, ECDPM, Maastricht (Netherlands), 20 November 2007, Analysis by Sara Erlandsson of ECDPM, p. 57, in Sheriff, A., Enhancing the EU response to children affected by armed conflict, With particular reference to development policy, Study for the Slovenian EU Presidency, Discussion Paper No. 82, December 2007, www.ecdpm.org/dp82: p. 57 235 2010 Review of the Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Concept Note, prepared by Dr. Gosia Gorska (EEAS, Human Rights and Democracy Directorate), Veronique Joosten (Belgian Presidency) and Kati Leinonen (EEAS, Human Rights and Democracy Directorate), para. 3 (i), p. 6

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which include the UNSGSR-CAAC and UNICEF, DPKO, DPA, ILO, UNHCR and OHCHR.236 The review included EU documents on CAAC such as the European Commission Communication “A Special Place for Children in EU External Action and Children in Emergency and Crisis Situations” from 2008, studies, seminars, the 2006 “Checklist for integration of children affected by armed conflicts into the European Security and Defence Policy, in particular its missions abroad”, the “Evaluation of the implementation of the EU Guidelines on Children and Armed Conflict in 13 original priority countries” from 2009, recommendations, and a review of the implementation of CAAC-targeted projects (with special focus on the priority countries) in the context of that the EU began to fund projects on CAAC from many different EU funding instruments in 2003 and onwards, here reference was made to the “Investing in people thematic programme” from 2008 and the “European Instrument for Democracy and Human Rights” from 2009.237 It was noted here that the EU member states in addition fund projects in third countries bilaterally. The overall review also included international developments like the Paris Commitments and Principles of 2007, Security Council resolution 1882, the 10-years Strategic Review of the Machel Report, the reports by the UN SRSG-CAAC, and the conclusions and documents of the UN Security Council’s working group on CAAC, the International Criminal Court’s work as well as different publications, guidelines and tools such as by the UNICEF Innocenti Research Centre.238 Furthermore the review encompassed consultations with especially various stakeholders and civil rights organizations, and specifically with regards to “consultations on the ground”; in this context in all the 19 priority countries the EU delegations had been asked “to organize a meeting with local, locally present international NGOs as well as relevant UN agencies to discuss the implementation of the EU Guidelines on CAAC as well as draw on recommendations to improve EU’s response in this field. The Delegations provided reports from the meetings by the end of September [2010].”239. 236 2010 Review of the Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Concept Note, prepared by Dr. Gosia Gorska (EEAS, Human Rights and Democracy Directorate), Veronique Joosten (Belgian Presidency) and Kati Leinonen (EEAS, Human Rights and Democracy Directorate), p. 1-2 237 2010 Review of the Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Concept Note, prepared by Dr. Gosia Gorska (EEAS, Human Rights and Democracy Directorate), Veronique Joosten (Belgian Presidency) and Kati Leinonen (EEAS, Human Rights and Democracy Directorate), p. 1-3 238 2010 Review of the Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Concept Note, prepared by Dr. Gosia Gorska (EEAS, Human Rights and Democracy Directorate), Veronique Joosten (Belgian Presidency) and Kati Leinonen (EEAS, Human Rights and Democracy Directorate), p. 3-4 239 Review of the Implementation Strategy of the EU Guidelines on Children and Armed Confl ict, Concept Note, prepared by Dr. Gosia Gorska (EEAS, Human Rights and Democracy Directorate), Veronique Joosten (Belgian Presidency) and Kati Leinonen (EEAS, Human Rights and Democracy Directorate), p. 5

The European Union’s Work on Children and Armed Conflict

In the 2010 Revised Implementation Strategy, the EU takes a long-term, specialized, inclusive and a differentiated child-centred approach.240 The specialized approach means viewing children as a “distinct” group from adults with specific needs, and that children and communities should participate actively in “all stages of programme assessment, planning, implementation and evaluation activities”, and the inclusive approach entails that all children are harmed by an armed conflict and therefore all children that have been affected by an armed conflict, in particular children who are vulnerable to be recruited or who self-demobilize, should be included in the EU work. The differentiated approach means that a child’s individual needs must be taken into account, where special attention needs to be paid to “girls in general, orphans, children out of school, children with disabilities, children who do not benefit from official programmes, children separated from armed forces and groups, and not integrated into society”.241 Furthermore, “the different impacts of armed conflict on girls and boys” is to be included in assessments and recommendations for action by EEAS, EU delegations and embassies, EUSRs and CSDP missions and operations. Three areas are especially to be focused on, and they are prevention (where the prevention of child recruitment, sexual violence, killing and maiming of children are important issues), protection (where international human rights and humanitarian law, the EU policy in general on the promotion and protection of children’s rights, the implementation of the EU Guidelines on International Humanitarian Law and the Guidelines on Protection of Civilians in the CSDP Missions and Operations should be included), and rehabilitation and reintegration (where the EU Concept for support to DDR, the Paris Commitments and Principles, and the Integrated Disarmament, Demobilisation and Reintegration Standards are to be followed).242 Some “specific actions” have been identified that are to be taken by the different EU organizations to strengthen the work of the EU on CAAC and they include:243 1.

Organise joint COHOM-CODEV discussions on the links between development assistance, humanitarian aid and CAAC, including with the view of programming new financial instruments post 2013. [These are to be conducted every year, and the responsible EU organizations are COHOM, CODEV, European Commission, member states.]

240 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 3 241 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 4 242 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 4 243 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 5-6

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2.

3.

4.

5.

6.

Ensure that funding on CAAC is adequately included in the new financial instruments. [The responsible EU organizations are EEAS/COM, units in charge of the programming, relevant Council working groups] Ensure that a child needs assessment is conducted prior to or during country-level programming of EU funds, particularly EDF, in the focus countries. [Responsible EU organizations are EU delegations, and member states embassies] Update the mapping of EU funding on CAAC projects, including funding by Member States. [Responsible EU organizations are EEAS in cooperation with EU delegations, member states and CSDP missions and operations; by 1 June 2011] Consider CAAC in the implementation of Security Sector Reform (SSR) and Disarmament, Demobilisation and Reintegration (DDR) programmes. [Responsible EU organizations are EU delegations, member states embassies, COM, EEAS, CSDP missions and operations; on-going action] Actively engage in local child protection networks and working groups where they exist and encourage the establishment of such networks where they do not yet exist. [Responsible EU organizations are EU delegations, member states embassies, CSDP missions and operations]

According to the 2010 Revised Implementation Strategy, the EU and UN bodies are to work “closely” together with regards to the UN 1612 MRM mechanism, including the UNSC resolution 1882, and actions to be taken include sending information packages “to EU Delegations, MS Embassies and CSDP missions and operations on the UN MRM together with a note giving instructions to cooperate closely with and support the UN bodies”, here the EEAS is the responsible EU organization and it was to be done by 1 June 2011 (3.1.7).244 The EU delegations and the EU member states embassies by 1 September 2011 are to hold “meetings with UN Country Teams, Peacekeeping Operations and existing Task Forces on Monitoring and Reporting to discuss how best the EU can support the implementation of UNSC resolution 1612 locally, coordinate and complement actions”. Furthermore, EU delegations and member states embassies are to “[r]egularly engage with the work of the Task Forces on Monitoring and Reporting in order to support their work and to be fully informed on key concerns for the protection of children” (3.1.9). Further, by the July 1 every year, ad hoc requests and reports and annual reports shall be submitted by the EU delegation and member states embassies at the UN in New York, as they are to cooperate with the UN in New York, and this includes to “[r]egularly consult on the state of implementation of the MRM and to propose appropriate steps by the EU to ensure progress in this regard”, and to “[r]egularly engage with the UN SRSG/CAAC and UNICEF, ensure the support of the EU and Member States for the continued engagement of 244 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 7

The European Union’s Work on Children and Armed Conflict

the Security Council and its Working Group on Children and Armed Conflict” (10.1, 10.2).245 Finally the EU delegations and the EU member states embassies are to “[s]upport the country work of the UN SRSG-CAAC by organizing EU meetings during her country visits” (11).246 At the EU level, the EU delegations in all countries affected by armed conflict and not only in the 19 priority countries are to also report on CAAC “in their regular monthly reports and specialised human rights reports”, and if conditions in the field so permit additional information by the HoMs (Heads of Missions) is to be submitted.247 The actions which are to be taken in this context include for the EEAS (European External Action Service) to make “[e]xplicit reference, in the template for human rights country strategies to the guidelines on CAAC under a specifically dedicated heading” (3.2.12); that EU delegations, EU member states embassies and CSDP (Common Security and Defence Policy) missions and operations by February 2011 included in the portfolios of the human rights focal points CAAC issues (3.2.12); to for instance in the monthly reports on the political situation by the EU delegations “[i]nclude in relevant analytical reporting information on the situation of children affected by armed conflict” (3.2.14); that the EEAS by September 1 every year “[s]end a reminder to EU Delegations about above-mentioned reporting” (3.2.15); and that the EEAS within one month from having received the report “[p]rovide feedback on monitoring and reporting to EU Delegations”(3.2.16); and finally that the EU Delegations, COHOM (Council of the EU Working Group on Human Rights), the Regional Council Working Groups in the “COHOM review of situation in focus countries once a year” “[m]onitor the situation of CAAC, and suggest appropriate EU action” (3.2.17).248 According to the 2010 EU Revised Implementation Strategy, the EU special representatives (EUSRs) have a key role to play with regards to the EU Guidelines on CAAC implementation, especially concerning “reporting and the formulation of policy recommendations”.249 In this area, action that is to be taken by the EU special representatives, EEAS, and EUSRs Council working groups is to a the time of the renewal of the mandates of the special representatives have CAAC “included in the mandates of all EUSRs in countries affected by armed conflict”(4.18); and that by 1 June 2011 all the EU special representatives were sent a letter on the EU Guidelines on CAAC, the Revised Implementation Strategy and other key 245 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, para. 10, p. 8 246 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Confl ict, Brussels, 6 December, 17488/10, para. 11, p. 8 247 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 9 248 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 9 249 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 10

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issues by the EEAS (4.19); and that the EUSRs on a regular basis “include in their reporting and presentations to PSC and other Council Working groups information and recommendations on the protection of children” (4.20).250 Furthermore, CAAC issues as well as in post-conflict situations should be included when the EU engages in political dialogues with third countries and regional organizations, and these political dialogues at all levels for which the EEAS, the EU delegations and EU member states are responsible are to include for instance “[f]ollow up to UN recommendations, e.g. Security Council WG on CAAC, UN SRSG on CAAC”, furthermore “[e]ncourage to grant humanitarian access to all areas in the country; Urge unconditional release of all children associated with armed forces and groups and a stop to recruitment by all armed forces and groups; Intensification of efforts to prosecute perpetrators of crimes committed against children and to fight impunity; Ratification of international instruments, such as the Optional Protocols to the UN Convention on the Rights of the Child, ILO Convention 182 and the Rome Statute; Development and strengthening of basic social services, including education, health, child and social protection systems” (5.21).251 In démarches and public statements to third countries the EU is to urge such countries “to take effective measures to ensure protection of children from the effects of armed conflict, to end the use of children in armed forces and armed groups and to end impunity,” and by 1 September 2011 the EEAS and the EU delegations were to “[i]mplement a démarche round in the priority countries on the revised implementation strategy and possibilities of cooperation on CAAC issues”(6.22); that after reports and conclusions have been put forward, the EEAS, EU delegations (“UNICEF to inform EEAS regularly”) “[c]onsider démarches after the issuing of a country report/recommendation by the UNSG, the UNSRSGCAAC or the SC Working Group conclusions” (6.23); for EU Delegations and COHOM on a regular basis “[f]ollow up on urgent action appeals”(6.24); and that each year the EEAS, EU delegations and NGOs, and UNICEF “[i]ssue an EU Statement on the International Day against the Use of Child Soldiers (12 February) and accompany the statement by local action (statement, meetings with NGOs, etc.)”(6.25).252 Acknowledging the lack of awareness and knowledge about the EU Guidelines on CAAC and CAAC issues in general within the EU and some of its partners, the 2010 Revised Implementation Strategy includes action on annual training by the EEAS on the rights of the child including on CAAC which is to be “open to all EU institutions, EU Delegations and Member States, as well as staff 250 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 10 251 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 11 252 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 12

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from CSDP mission and operations” (7.26).253 Plans to, with the assistance of Save the Children and other organizations, train “EU Delegations and CSDP missions and operations at the local level in priority countries” are to be developed (7.27). Also the EU member states on a regular basis should include CAAC in their national training programmes especially with regards to military and civilian personnel which are to be deployed in CSDP missions(7.28); and at the local level the EU delegations and member states embassies are to conduct “[a]wareness-raising … to increase knowledge on EU policy on CAAC, inclusion of information on EU Delegations’ and MS’ Embassies web pages, information sessions in human rights working groups and corresponding structures” (7.29); and by 1 July 2011, the EEAS should have given an “information package on the rights of the Child to all actors involved and put them on the EEAS website”, and by July 2012, the EEAS should have created a toolkit on this issue (7.30).254 Further, the coordination efforts need to be taken by the EU with various stakeholders, which includes that “at least annually” the EU Delegations and member states embassies are to organize by EU HOMs discussions with local stakeholders on CAAC(this includes with NGOs and international organizations)(8.31).255 The implementation of the 2008 Checklist for the Integration of the Protection of Children Affected by Armed Conflict into CSDP Operations (9822/08) must be intensified (it is still valid), and the 2010 Revised Implementation Strategy provides that the COHOM Chair and the PMG (Politico-Military Group) and CIVCOM (Civilian Crisis Management Committee) are to follow up on the Checklist’s implementation by for instance “[i]ncluding the Checklist implementation as an item in its discussions on CAAC”(9.34); that the PMG, CIVCOM, CMPD and CPCC conduct reviews annually “of the implementation of the Checklist by CSDP missions and operations by the relevant Working Groups, particularly PMG and CIVCOM” (9.35); that the PSC, CMPD, CSDP missions and operations and EUSRs engages in “[m]ainstreaming CAAC into discussions at PSC, notably through briefings to PSC by relevant actors such as the UN SRSG CAAC, EUSRs, CSDP HoMs and Operational Commanders”(9.36), and that the CMPD sees to it that every semester in the Council conclusions on CSDP issues on CAAC be included (9.37).256

253 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 13 and footnote 6 254 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 13 255 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 14 256 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, p. 15

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In terms of follow-up, according to the 2010 Revised Implementation Strategy, the EU list of priority countries on CAAC should remain and be updated, and in this respect the two annexes to the UN SG’s annual reports on CAAC should be used as guidance when the EU is to update its priority countries.257 As is underlined these lists can be changed and are not “exhaustive”. Finally the 2010 Revised Implementation Strategy was to be circulated by the COHOM chair by 1 June 2011 “to the Chairs of all the relevant Council working groups and other actors,” and the revised strategy is to be revised every two years by COHOM.258 7.7.

Conclusion

The most important issues for the EU mission staff members and member states mission staff members in EU designated priority countries on CAAC should be to gain awareness and learn about the issues concerning children affected by armed conflict as well as about the EU Guidelines on CAAC and the other EU human rights guidelines as they interrelate to children and armed conflict. Because of the complexity of not only the CAAC issues both as an emergency issue and a long-term development issue, but also because of the complicated structure of the EU as an organization as well as what issues the different member states choose to prioritize in a certain country, it is very challenging within the EU to address CAAC issues in an effective way. However since the EU as a whole funds many projects regarding children, it is fundamental that the issue of CAAC becomes much more focused and detailed for effective implementation of the goals of the EU as an organization. Furthermore, much more committed interaction with a given government of a priority country on CAAC and the different national and local organizations in that country that work with CAAC and children’s issues needs to take place. Here there is a need for the EU missions and the member state missions to learn how to apply the Guidelines on CAAC and what it means for a country within the EU context to be designated a priority country for CAAC. A discussion should take place between the host government and the national and local NGOs about what the EU means by this designation, and what is expected of them as well as what can be expected from the EU missions and the EU member state missions in such a country regarding CAAC also within the overall context that the promotion and protection of the human rights of all children is a priority area of the EU’s overall human rights policy. The 2010 Revised Implementation Strategy is a start to improve the work of the EU on CAAC as there is a realization within the organization that the EU really needs to improve its work, rein in its scattered approach to CAAC and take 257 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, para. 10, p. 16 258 Council of the European Union, Revised Implementation Strategy of the EU Guidelines on Children and Armed Conflict, Brussels, 6 December, 17488/10, para. 10, p. 16

The European Union’s Work on Children and Armed Conflict

committed action. For instance it must be possible for persons outside of the EU to be able to at least contact a person or unit within the EU in Brussels that can actually explain the reasons behind EU’s documents on CAAC and how they are being developed and which entity is designating the priority countries on what criteria, which has been a great challenge to this author (both at the national level and EU level) even if within the European External Action Service, EEAS, Human Rights and Democracy Directorate it has recently improved. Another issue is that many of the EU’s documents are not dated nor is the EU institution that has adopted a document always listed, an area where the EU could learn from the UN. Furthermore, importantly as the EU is to work within the context of the 1612 MRM closely with the UN SRSG-CAAC and take into account the conclusions and work of the UN Security Council Working Group, this can potentially step up the implementation of the 1612 MRM if swift, forceful and effective action is also taken by the EU member states and the EU delegations, both at the country level and the UN headquarters level given their presence, funding capacity and possible clout.

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The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

I never made any other attachments. … You never knew when someone you cared about would be killed or you would have to kill them. – Fabian Tamayo, a former child soldier with the FARC’s 44th Front in Colombia after being forced to kill his closest friend La Bruja.1 I was with my best friend Oleg inside the school. When the siege started, we tried to run together but I lost him. Later on I found one of the sleeves of his sweater. I never saw Oleg again. I found out that he had died. … He was my very best friend and I really miss him. If you could measure it in electricity volts, it would be 9,000 million volts. – Cherman, seven years August 2005, one year after the three day siege of the Beslan School Number One on 1 September 2004 by pro-Chechen armed men which Cherman lived through. As a result of the siege Cherman lost some of his hearing, and 171 children and 200 adults died.2 After the first explosion, a terrorist’s grenade was hit by a bullet. They all had grenades slung around them. He blew up and his brains hit me in the face. It was horrible. It was fatty and slippery. – Cherman seven years again I draw the terrorist and burn them for all the children who died in the school. I want to take revenge on them for killing those children. – Laima, nine years one year after the Beslan siege of 1 September 2004.3

1 2 3

Wilson, Scott, A Hard New Life Inside the Law, Colombian Ex-Rebel Fights to Forget Haunting Memories of Childhood, July 27, 2003, page A01, Washington Post Ewart, E., Producer, Children of Beslan, Beslan Children Still Tormented, 30 August 2005, http://news.bbc.co.uk/2/hi/europe/4187924.stm Ewart, E., Producer, Children of Beslan, Beslan Children Still Tormented, 30 August 2005, http://news.bbc.co.uk/2/hi/europe/4187924.stm

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It is time to reconsider the myth and realize that few, if any, children experience war without some psychological residual effect.4

8.1.

Introduction

All children suffer in armed conflicts to various degrees as a result of what they are exposed to including violence, disorder, chaos and disruption of schools and other services, even if not everybody has the same experiences or reacts in the same ways to traumatic events. The report by Graça Machel in 1996 was the very first report to seriously raise awareness of the impact of armed confl ict on children and youth as a global concern.5 In Colombia Professor Duran Strauch points out that even if the issue of children and youth in armed conflict is a very critical issue, and the conflict in Colombia has been going on for a long time, it is only recently that there have been any studies on the subject.6 There is an increasing interest in finding out what kinds of traumatic events children actually are exposed to in a given conflict situation, and much research is beginning to be carried out that identifies the specific traumatic events a child experiences, what kind of psychological and emotional reactions a child has had to these events, if any, and the age and gender of the child (who the child was). Many medical and health personnel in conflict areas have increasingly conducted in-depth research on how armed conflict and violence affect children, such as in Colombia, Israel and the Gaza Strip, and this research has led to a much greater understanding of the reality of the children’s situation beginning to develop. While armed conflicts are carried out in all different parts of the world, in the context of different cultures and environments, these studies still reflect many similar traumatic events and reactions, while the response might differ taking into account among other things cultural aspects. There is a great need to learn more about the situation for children in order to be able to help the children heal, also taking into account the fact that children feel very deeply and need help to process these feelings as some of the abovementioned quotes reflect. The psychological symptoms that children may suffer from as a consequence of traumatic experiences in war will not be the same for all children and they will be different between war zones.7 These psychological symptoms range from 4

5 6

7

Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 817 Machel, G., Impact of armed conflict on children, A/51/306 and Add.1, 1996 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, p. 189, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, Translated by author Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 808-809

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

emotional responses such as fear and anxiety, depression, anger, blame and guilt, behavioural problems like aggression and noncompliance, children engaging in post-traumatic play, having bad dreams and nightmares, children facing the world with silence and exhibiting psychosomatic reactions such as headaches and dizziness.8 Importantly Elbedour et al. have pointed out that nearly all of these symptoms develop as a result of the concerns children have in and about war such as “[f]ear of separation from significant others, lack of secure base, unhelpful sociocultural milieu, broken rules and structure of society and loss of meaning to make some kind of logical sense in a nonsensical situation”.9 These symptoms can surface a long time afterwards, which is a characteristic of post-traumatic stress disorder (PTSD), however some children because of strong personal resiliency might not show much change of their emotions and might cope better than other children.10 Whatever the reasons are as to why some children cope better than other children do, and whether the psychological effects are short-term, immediate, long-term or postponed for the individual child, a child’s behaviour needs to be examined in the context of dynamics inter-related to each other and not in isolation.11 In order to analyse children’s different coping and response mechanisms in war and to determine how maltreatment of children can be understood one needs to look at the individual, family, community and cultural mechanisms as well as “the level of intensity, duration and suddenness of the conflict”.12 In war situations children’s own resources and development characteristics, including age and gender, the parent’s ability to cope with stress and trauma, the disruption and fragmentation of community ties, the culture of the child including political ideology, religious beliefs, attitudes and values toward violence and how intense, long and sudden the war situation is, all contribute to how a child is able to cope

8

9

10

11

12

Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 808 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 808-809 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 809 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 809 Belsky 1980 in/and Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805-819, 1993, p. 809

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with traumatic events in war and to recover from war.13 More clearly as to whether a child will suffer from psychological effects as a result from war trauma, the five factors that Elbedour et al. have identified and that play a role in regulating the level of harm are: “1. the ontogenic features of the child such as age and gender; 2. the reaction of parental figures in the family microsystem to the experience of war; 3. the child’s connection with a broader community ecosystem, including an extended family and social support network; 4. the cultural macrosystem and its expectations and attitudes toward violence; and 5. the duration, suddenness and intensity of the conflict – the nature of war.”14 These five factors will help establish how often, for how long the symptoms will occur, the gravity of the symptoms, as well as a child’s perception of a war event which all affect children’s different coping skills.15 Smith et al. have created a list of children’s common reactions after war and they include: nervousness, jumpiness (“especially at loud noises”), fears, worries, anxiety, frightened to go outside, withdrawal, depression, crying easily, getting upset over minor things, not wanting to play, irritable, quick to anger, temper tantrums, restless, problems concentrating, problems sleeping, nightmares, playing war games, bereavement reactions, fear of death of other family members, lost interest in the things they do, moodiness or rapid mood changes, images come back during daytime.16 Post-traumatic stress disorder symptoms can be categorized into three groups, re-experiencing, avoidance and arousal, and with regards to re-experiencing symptoms include: “1. Recurrent and intrusive recollections of the traumatic event, including thoughts, images, or perceptions; or repetitive play in young children. 2. Recurrent distressing dreams of the event; or generally frightening dreams in young children. 3. Acting or feeling as if the event were recurring (‘flashbacks’); or re-enactment in play in young children. 4. Intense psychological distress at exposure to reminders. 5. Physiological reactiv-

13

14

15

16

Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 809-814 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 814 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 814 Taken in full from Chart 2: Common Reactions of Children After War, in Children and War, Teaching Recovery Techniques by Patrick Smith and William Yule, Institute of Psychiatry, London, England, and Atle Dyregrov, Center for Crisis Psychology, Bergen, Norway, In co-operation with Leila Gupta, Sean Perrin and Rolf Gjestad, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 91

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

ity on exposure to reminders.”17 The avoidance symptoms include: “1. Efforts to avoid thoughts, feelings or conversations associated with the event. 2. Efforts to avoid activities, places, or people that arouse recollections of the event. 3. Inability to recall an important aspect of the event. 4. Markedly diminished interest or participation in significant activities. 5. Feelings of detachment of estrangement from others. 6. Restricted range of affect (unable to have loving feelings, e.g.). 7. Sense of a foreshortened future.”18 The symptoms of arousal include: “1. Difficulty falling or staying asleep. 2. Irritability or outbursts of anger. 3. Difficulty concentrating. 4. Hypervigilence. 5. Exaggerated startle response.”19 The advantages of letting the children feel safe to express themselves at home and talk about their feelings are many such as getting things out in the open, having the parents better understand the child, relieving tension for parents and child, making the child feel better, talking makes it easier to forget, the child can begin to distance himself/herself from painful memories, puts a child’s fears in perspective, meaning that the child does not have to bottle up everything, that children can be helped if they are listened to, helping the child get a different perspective on things and that the child by talking about his/her feelings understands that these feelings are normal and that there is nothing wrong with the child.20 At the same time the reasons as to why children might not want to talk about difficult events include because it is too painful to talk about it, they lack the words or concepts to express what they feel inside, their feelings and emo-

17

18

19

20

All information in this paragraph on post-traumatic stress symptoms come from Chart 3: Post-traumatic Stress Symptoms, in Children and War, Teaching Recovery Techniques by Patrick Smith and William Yule, Institute of Psychiatry, London, England, and Atle Dyregrov, Center for Crisis Psychology, Bergen, Norway, In cooperation with Leila Gupta, Sean Perrin and Rolf Gjestad, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 92 All information in this paragraph on post-traumatic stress symptoms come from Chart 3: Post-traumatic Stress Symptoms, in Children and War, Teaching Recovery Techniques by Patrick Smith and William Yule, Institute of Psychiatry, London, England, and Atle Dyregrov, Center for Crisis Psychology, Bergen, Norway, In cooperation with Leila Gupta, Sean Perrin and Rolf Gjestad, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 92 All information in this paragraph on post-traumatic stress symptoms come from Chart 3: Post-traumatic Stress Symptoms, in Children and War, Teaching Recovery Techniques by Patrick Smith and William Yule, Institute of Psychiatry, London, England, and Atle Dyregrov, Center for Crisis Psychology, Bergen, Norway, In cooperation with Leila Gupta, Sean Perrin and Rolf Gjestad, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 92 Smith, P., Dyregrov, A., Yule, W., Children and War, Teaching Recovery Techniques, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 68

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tions are contradictory, they feel guilt and confusion, they are afraid of not being heard or they are afraid of losing control.21 If children are not allowed to talk about their feelings in combination with them cutting of their emotions, it could be challenging for them to be able to develop any feelings of compassion for another person, and if this mental and emotional state continues there might be a risk for support of violence in the future. However as will be seen later in chapter for instance with regards to Israel there are issues involved regarding having the child and the family talk about their experiences of war, since such family environments can also create more fear.22 A Colombian study has shown the physical, psychological and psycho-social consequences that children and youth experience as a consequence from having participated in different armed groups.23 The physical consequences include skin infections due to the climate such as humidity, different stomach infections due to contaminated water, tropical diseases such as malaria, snake bites (also deaths from snake bites), insect bites, malnutrition due to poor diet and lack of food. As a consequence from having had to engage in unsafe sexual relations without protection as well as sexual abuse, different transmitted sexual infections and HIV/ AIDS are common.24 Research in Colombia has revealed that the children and youth experience the same main physical problems regardless of which group they belong to.25 Even if there are some differences due to for instance the region they live in, such as living in high altitude areas. Further research has demonstrated that different substances are being used within the different armed groups in Colombia, where in the paramilitary groups (AUC), especially marijuana and cocaine have been used.26 This particular research showed that at the time marijuana use was 32.3 per cent in AUC, 12.6 per

21 22

23

24

25

26

Smith, P., Dyregrov, A., Yule, W., Children and War, Teaching Recovery Techniques, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 69 See also Smith, P., Dyregrov, A., Yule, W., Children and War, Teaching Recovery Techniques, Children and War Foundation, Bergen, Norway, 1999, revised 2002, p. 68 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 190, Translated by author Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 190, Translated by author Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 206, Translated by author Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 205, Translated by author

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

cent in FARC and 8.6 per cent in ELN, and that regarding cocaine use, the percentage was 29.0 per cent in AUC, 5.6 per cent in FARC and 2.8 per cent in ELN. 8.1.1.

How to Make Sense of the Violence That the Children Have Been Through What does harmful mean? What does harmless mean?

Many children in conflict situations live and participate in conflicts they do not understand. In such environments to be imposed issues of religion, ethnicity, hatred, division and intolerance cannot be considered as anything else but child abuse. There is a susceptibility of youth to powerful messages from people who seem to care for them and their futures. There is many times an underlying anger beneath this susceptibility and to understand what that anger represents would be helpful in understanding the causes of for instance radicalization. When a child has experienced the killing of one or both of their parents, siblings, relatives or friends, feelings of revenge and vindication naturally often develop. In the context of a conflict situation, when not properly channelled or dealt with, the child risks acting out these feelings by joining an armed group. Revenge is one powerful incentive to join an armed group, but as child soldiers, the children are forced to carry out acts that they are not mentally or emotionally fit to understand. However, as the Palestinian adolescents participating in the first Intifada of 1989–1993 showed, children can also exhibit “a clear sense of meaning” regarding their participation in an armed conflict.27 As Barber has explained, the youth participating in the first Intifada “were not passive recipients of the trauma of war”, but instead displayed a deep understanding of the reasons for the Intifada and were politically knowledgeable more broadly.28 Nevertheless, the violence that they were participating in and were exposed to also left marks. As has been documented, the Palestinian children during the first Intifada were exposed to a very high degree of violence and brutality where many children died or were injured.29 Between 20,000 and 25,000 children needed medical treatment during the first year of the first Intifada (9 December 1987–9 December 1988) for injuries

27 28 29

Barber, B. K., Political violence, family relations and Palestinian youth functioning, Journal of Adolescent Research, Vol. 14, No. 2, April 1999, p. 223 Barber, B. K., Political violence, family relations and Palestinian youth functioning, Journal of Adolescent Research, Vol. 14, No. 2, April 1999, p. 222 Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children: Children are all persons under 18 years of age.

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that the Israeli military personnel or settlers were responsible for.30 Some children did not want to be registered as having what was termed Intifada-related injuries because of fear of harassment and intimidation from an Israeli military interrogation. This led to some children seeking alternative care in their homes instead of hospital care. Children younger than 13 years and their parents were less afraid of seeking care and to be registered as an Intifada-related injured patient than older individuals because they had not as much fear of being harassed or arrested by the Israeli military.31 However 13 to 15 year old boys were afraid of harassment and being arrested when seeking health care, and in some cases as a result of for instance curfews, sieges, round-ups and mass-arrests children could not go to a hospital and had to resort to home care.32 During the first year of the Intifada children between 0 and 15 years of age constituted about 18 per cent of all the persons who had been killed, and these children “died as a direct result of the conflict”.33 The causes of death for the children included beatings, tear gas (the so-called silent death), gunshot wounds, and burns and explosions, and the injuries were mainly caused by beatings, tear gas, gunshot wounds, metal balls, and rubber-coated balls.34 From December 1987 to December 1989 “six children died each month and one child was killed every five days”, and of all child deaths during this time period due to the violence children under one years of age con30

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Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 195, Appendix E, Methodology Child Injury Record Collection, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 199, Appendix E, Methodology Child Injury Record Collection, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 200, Appendix E, Methodology Child Injury Record Collection, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 229, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 294, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

stituted 19 per cent of all such deaths, 27 per cent were between 0 and five years of age, and children aged ten years or younger constituted 35 per cent of all the child deaths.35 Gunshot wounds and injuries from tear gas exposure were the main causes of death for children under 18 years during the first six months of the Intifada, and gunshot wounds became the most common cause of death after these six months until December 1989.36 Nixon et al. have reported that “[t]he average age of the children killed in the first two years was 10 years of age”.37 There was a difference at the time in the risk of being killed between the children living in the Gaza Strip and the West Bank. For the children who lived in Gaza there was a higher risk of being killed by 1.4 times compared to the children who lived in the West Bank.38 That these events and experiences would not leave any marks on these children and their communities and later on impact their thinking and behaviour would have been both an insensitive and irresponsible conclusion as these children did not act in a vacuum. Instead they acted within a context of continuous Israeli occupation and control, competing Palestinian power interests as well as Palestinian state building. The Gaza Community Mental Health Programme (GCMHP) did a study of three thousand children from Gaza that had experienced the first Intifada. The study confirmed again that the children had experienced a very high degree of violence and many traumatic events during the time of the first Intifada.39 While these experiences and events had all affected them psychologically, it was found that the hardest experience for many had been to 35

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Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 295, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 295, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 296, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988. Nixon, Anne Elizabeth, Bing-Canar, Jennifer, Bing-Canar, John, The status of Palestinian children during the uprising in the Occupied Territories, Part 1, Child Death and Injury, Volume 2: Appendices, January 1990, Rädda Barnen, Swedish Save the Children, p. 297, Appendix G.2, Statistical Patterns of Child Death and Injury – the First Year, 9 December 1987 - 9 June 1988. Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 2 of 5, www.gcmhp.org/topic_details.asp?

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witness their fathers being beaten by Israeli soldiers and not being able to defend themselves.40 These combined experiences in the end changed this generation of the first Intifada into something new, and they are now the men of the brutal and divisive second Intifada.41 The second Intifada has been characterized by its brutality, hatred and unchecked violence. Dr. El-Sarraj has stated that these children of the first Intifada believed in a much better future for themselves and their families and acted upon this belief, but lost hope about this better future when they in the end witnessed their fathers being helplessly beaten by Israeli soldiers.42 The role model became instead the Israeli soldier who used force to show his power and defend himself. What is being termed “chronic social toxication” is a phenomenon that has been found to be a consequence of long-term armed conflicts, and leads people to exhibit less sensitivity, more brutality, irrationality, being more impulsive and prone to violence.43 It leads some individuals to establish new groups that are separate and different from the traditional family structures as well as from the traditional society, and they are not afraid of using ruthless force and violence as a means of establishing and maintaining power.44 The leaders of these new groups then in turn become the new role models for especially the disadvantaged and vulnerable in society. One important finding from studies of the first Intifada is that it has been shown that there was a strong link between neighbourhood social disorganization and “higher levels of Intifada involvement”.45 As was shown, for adolescents living in socially disorganized neighbourhoods there was a strong connection between “higher levels of Intifada involvement, higher levels of parental psychological control, lower levels of parental monitoring, lower levels of school and religious integration, and higher levels of deviant peer associations”.46 An additional consequence of chronic social toxication is specifically the loss of the authority of the father and the values and morality of the family unit as 40 41 42 43 44 45

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Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 2 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 2 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 2,3 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 3 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 3 of 5, www.gcmhp.org/topic_details.asp? Barber, Brian, K., Political Violence, Social Integration, and Youth Functioning: Palestinian Youth from the Intifada, Journal of Community Psychology, Vol. 29, No. 3, 259-280, 2001, p. 269 and 272-273 Barber, Brian, K., Political Violence, Social Integration, and Youth Functioning: Palestinian Youth from the Intifada, Journal of Community Psychology, Vol. 29, No. 3, 259-280, 2001, p. 272-273

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

well as of society, and especially young men’s search for identity results in looking for new role models that are not as vulnerable or helpless as their parents.47 This creates a gap and into this gap step, in the Palestinian context, different Islamic organizations and armed militia groups to provide that new strong identity, and the consequence has been that many young people have become estranged from their own communities and from society at large.48 This is also within the context of a government ruled by the Palestinian Authority (PA) that has performed very poorly and resulted in the further disintegration and chaos of the Palestinian society, also leading to even more new groups being established first with the support of the PA but which later turned against the PA.49 While the first Intifada encompassed solidarity between the Palestinian people, resiliency and “the commitment to shared moral values”, the second Intifada has been characterized by “chaos, disintegration and division”.50 8.1.2.

The Issue of Exposure

Furthermore in a conflict situation people live with a threat that they not always can control, and it is important to understand how this affects people. When a bomb explodes, a person is utterly exposed, and the feeling of being exposed can remain for life. If a person is exposed over and over again to extreme danger, his/ her capacity to sense danger risks being damaged as well as that people might get desensitized to the feeling of fear. This damage will be reflected in an individual’s inability to understand if a person is good for you, mean well for you or not. Also, the sense of exposure leads to boundaries breaking down. It can have consequences for an individual as an adult and for example this individual might put his/her own children at risk with people that are not good for their children. And it is all done at an unconscious level. The sense of exposure also affects what is considered as acceptable behaviour for an individual. It is important to understand that also children not directly exposed to a violent event but who live in the context of a conflict situation may develop emotional problems such as high anxiety and worry levels because of the violence occurring around them.51 A Palestinian study from the Gaza Strip carried out from January to February 2001 examined both children who had been directly 47 48 49 50 51

Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 3 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 3 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 3, 4 of 5, www.gcmhp.org/topic_details.asp? Dr. Eyad, El-Sarraj, The Psychosocial causes for the Palestinian factional war, January 10, 2007, p. 4 of 5, www.gcmhp.org/topic_details.asp? Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04

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exposed to bombardment and home demolitions and children who had not been directly exposed.52 It was found that the children in the non-exposed group were significantly younger compared to the children in the exposed group and that if the parents had higher education their children were not as directly exposed to bombardments or home demolitions as the children with parents with lower education levels were. The exposed children who had lost their homes in bombardments had “severe to very severe” post-traumatic stress disorder reactions, and the children who had been directly exposed to bombardments and home demolitions in addition exhibited “significantly higher” levels of symptoms of PTSD.53 These children however did not exhibit as high anxiety levels as the children in the non-exposed group did.54 The children in the non-exposed group showed high levels of anxiety that were manifested in that the children always felt alone and were worrying a lot of the time. More specifically 73 per cent of the children not directly exposed stated that “I feel alone even when there are people with me”, and 71 per cent stated that “I worry a lot of the time” and 64 per cent stated that “I worry when I go to bed at night”.55 These children experienced the violence and different violent events from the media as well as from watching how the adults around them reacted to these events, and exhibited “anticipatory anxiety thinking” and were worrying about “what might happen” to them.56 The children in the directly exposed group had “significantly higher” levels of fear and they most commonly were found to fear: “being at a high place; you feel that it will collapse” (76 per cent); “feeling scared in a dark place” (71 per cent); “fears of being in a closed space” (69 per cent); “fears of height and high buildings” (69 per cent); “fears of things and people the child knows will not hurt him” (67 per cent); “fears of having an untreatable disease” (64 per cent).57 This study showed that “[c]hildren’s emotional responses to different kinds of exposure to political violence are acute and severe”.58 This study underlines the importance of paying “special attention” also to those children who have not been directly exposed to 52

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All the 180 children ranged from 9 to 18 years of age, Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1802 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1803 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1803 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1804 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1803 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1804

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

a violent event, because they also suffer the consequences of living in a context of a conflict.59 And many times their emotional problems risk being neglected because their problems are not being acknowledged and thus not receiving adequate attention.60 The study also showed that it is important to provide training to other health care professionals and professionals such as teachers that come into contact with these children and not primarily mental health care specialists, and that this training can be developed to help them alleviate the children’s emotional problems.61 Otherwise the children risk being left alone and worrying on their own with their limited ability to process and understand the trauma as well as with some children’s limited ability to convey their feelings. The television is an instrument of exposure to the continuous violence for the Palestinian children in various ways and it has consequences. The internal violence between Fatah and Hamas as seen on TV has led to children in schools imitating the scenes of clashes between the different groups.62 The children copy both the scenes of the clashes as well as the martyrs’ funerals as seen on TV. It is important to note here that it is “realistic violence” that the children are copying and imitating, that their games are not merely fantasies being played out.63 Fatah and Hamas both have television stations that produce programmes for children, and the programmes for children also at times feature political issues as well as glorify the martyrs and martyrdom.64 One finding of a survey of Palestinian children regarding their reactions to scenes on TV was that scenes of martyrs and scenes of people getting injured were the “most common traumatizing” events to watch for the children surveyed (98.5 per cent of the 415 children said so).65 Of interest is that for adults to watch mutilated bodies and wounded people on TV was the most common traumatizing event a study in the Gaza Strip showed (97.1 59 60 61 62

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Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1804 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1801 and 1804 Thabet, AAM, Emotional problems in Palestinian children living in a war zone: a cross-sectional study, Lancet, 2002, 359:1801-04, p. 1804 Ms. Mohaisen, in Report on GCMHP’s Activities of “Protection of Children from Violence in the Media” Campaign, November 19, 2007, p. 3 of 5, www.gcmhp.net/ File_fi les/ChildNov2k7.html Gaza Mental Health Programme, GCMHP, in Report on GCMHP’s Activities of “Protection of Children from Violence in the Media” Campaign, Activities of Second session, Strategies of Child Protection from Violence in Media, November 19, 2007, p. 4 of 5, www.gcmhp.net/File_fi les/ChildNov2k7.html The Child Soldiers Coalition, Occupied Palestinian Territory, Child Soldiers Global Report 2008, p. 259 Dr. Abedel Aziz Thabet, in Report on GCMHP’s Activities of “Protection of Children from Violence in the Media” Campaign, November 19, 2007, p. 3 of 5, www. gcmhp.net/File_fi les/ChildNov2k7.html

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per cent of the adults surveyed thought this).66 In a study regarding trauma exposure of pre-school children in the Gaza Strip aged three to six years, it was found that “the most common traumatic event” for the children in this age group was “watching mutilated bodies and wounded people on television” (91.6 per cent).67 Other events frequently experienced were “witnessing bombardment of other people’s houses by airplanes and helicopters” (51.3 per cent) and “witnessing firing at neighbour’s house by tanks and heavy artillery” (27.9 per cent), while the events “witnessing the beating of a close relative” and “witnessing the killing of a close relative” scored the lowest.68 While the children at the urban kindergartens in the Gaza Strip were more exposed to traumatic events than other children, all the children in the study exhibited behaviour such as “faddy eating, difficulty in going to bed, sleeping with their parents, poor concentration, attention-seeking, dependency, temper tantrums, worries and fears”.69 This study showed that it is important to understand that all children regardless of age experience the effects of conflict in various manners and degrees in terms of behavioural and emotional problems, and that it is vital to acknowledge that a child’s ability to communicate his or her feelings or thoughts might be limited because of age and therefore extra attention needs to be given to these children.70 8.1.3.

What Characterizes Strength? What Does It Mean to Be Powerful?

When a person lives in an environment where he is faced with guns, attacks and shootings on a daily basis, the ones who are carrying out the shootings are the ones defined as being powerful and strong, when at the same time they might feel vulnerable, helpless, powerless and maybe worthless because of the violent environment that causes them to act out. At the same time people show genuine strength and resilience in living through these experiences. Many times people unknowingly demonstrate that real strength comes from within and not from violence and being in the possession of a gun. In addition this strength is many 66

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Thabet, A.A., Abu Tawahina, A., El Sarraj, E., Vostanis, P., Effect of political violence on Palestinians in the Gaza Strip, March 24, 2008, www.gcmhp.org/research/ details.asp?id=50, p. 5 Thabet, AAM, Karim, K. and Vostanis, P., Trauma exposure in pre-school children in a war zone, British Journal of Psychiatry, (2006), 188, 154-158, p. 155, and Table 1, Children’s exposure to traumatic events during the previous year (n=308), p. 155 Thabet, AAM, Karim, K. and Vostanis, P., Trauma exposure in pre-school children in a war zone, British Journal of Psychiatry, (2006), 188, 154-158, p. 155, and Table 1, Children’s exposure to traumatic events during the previous year (n=308), p. 155 Thabet, AAM, Karim, K. and Vostanis, P., Trauma exposure in pre-school children in a war zone, British Journal of Psychiatry, (2006), 188, 154-158, p. 155, and Table 2, Frequencies of Behaviour Checklist items reported as ‘definitely present’, p. 156 Thabet, AAM, Karim, K. and Vostanis, P., Trauma exposure in pre-school children in a war zone, British Journal of Psychiatry, (2006), 188, 154-158, p. 157

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

times not acknowledged by outside actors that confuse being victimized with being a victim. The feelings of vulnerability and of being powerless and worthless are many times made worse by having outsiders defining who you are, how your words and acts are to be understood, of being seen as a victim. These beliefs make people susceptible to manipulation by those who want to use other people for their own interests. There is a need to heal the beliefs of being helpless, powerless and worthless. It is of vital importance to address the issues of victimization and the feeling of being powerless that manipulators tap into. Why is there a need to convince youth that they are victims and powerless? The issue of the susceptibility of youth to powerful messages from people who seem to care about them and their future is real. 8.2.

The Impact of Prolonged Conflict and Exposure of Conflict on Children and Youth We were not scared because there had been hours of shooting. – Mervat, Palestinian girl, talking about that day in school when Hoda, her schoolmate, was shot in the head sitting at her desk in their classroom. UNRWA fi lm, 2003. Even day-time shooting scares me now. – Another of Hoda’s schoolmates talks about her feelings after the shooting. UNRWA fi lm, 2003.

The children of the second Intifada that begun in 2000 are what their parents call “the lost generation of Palestine”, and this generation is considered to be the “most radical, most accepting of violence and most despairing” of any generation so far.71 Opinion polls conducted by the Palestinian Center for Policy and Survey Research have shown “that this generation is more supportive of armed struggle and terrorism than their parents”.72 Their research also showed that the youth directed violence against each other and that Israel was not the only target. In her report from her visit to the West Bank and Gaza in April in 2007, the United Nations Special Representative of the Secretary-General for Children and Armed Conflict, Ms. Coomaraswamy, stated that:73

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Erlanger, Steven, Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times Erlanger, Steven, Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times United Nations, Visit of the Special Representative for Children and Armed Conflict to the Middle East, Lebanon, Israel and occupied Palestinian territory, 9-20 April 2007, p. 14

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Like all children, Palestinian children have that inner strength and optimism that is inherent in all youth. However, there is a palpable sense of loss and a feeling of hopelessness that places the children of the West Bank and Gaza apart from all other situations the SRSG has visited to date.

Of all the countries and territories that Ms. Coomaraswamy had visited in her capacity as the Special Representative by 2007, the sense of loss and the feelings of hopelessness that the children she met in the West Bank and Gaza exhibited had been by far the worst she had encountered. These comments show the urgent need for the international community to address the situation for the Palestinian children without delay. As the abovementioned quotes by Palestinian school children clearly show, the Palestinian children have been deeply affected by the continuous violence in fundamental ways. About 39 children in the occupied Palestinian territory (OPT) died between January and March 2008, while in 2007 within the same period ten children died.74 In 2007, 70 per cent of those 124 children that were killed in the conflict were adolescents aged between 13 and 18 years of age.75 In 2007 more children in the OPT died in internal violence than in the two years before that.76 While Gaza has been under a virtual siege since June 2007, in the West Bank the expansion of the closure regime led to closures having increased to 580 obstacles to movement by spring 2008 from 376 in November 2005.77 As was noted above the Palestinian children of the second Intifada of the year 2000 are considered to be the generation that is the most accepting of violence.78 This is within a context of a very young population, where half of the population in Gaza is under 15 years of age, 66.7 per cent of the population in the OPT are between 0-24 years of age, and 23 per cent of the whole population is between 10–19 years.79 For the adolescents 13–18 years of age from 2003 to 2008 a decrease in their psy-

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UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 2 UNICEF, Occupied Palestinian Territory, Adolescents, Action, www.unicef.org/ oPt/adolescents.html, May 22, 2008 UNICEF, UNICEF Humanitarian Update, Occupied Palestinian Territory, 17 December 2007, UNICEF is responding to the urgent needs of children and women, p. 1 UNICEF, At a glance: Occupied Palestinian Territory, Funding appeals and humanitarian action updates, 5/16/2008, www.unicef.org/infobycountry/oPt_31445.htm Erlanger, Steven, Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times UNICEF, Occupied Palestinian Territory, Adolescence, www.unicef.org/oPt/children_213.html, accessed September 2008

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

chosocial situation resulted, the UNICEF reported.80 They exhibit headaches, sleeping disorders, violent acts and loss of appetite, and they are more vulnerable to aggression, rebellion, risk-taking behaviour, feelings of helplessness, frustration and withdrawal compared to other children.81 The World Bank has stated that the result of the continuous conflict since 2000 and especially after Hamas’ win in the Palestinian legislative council elections of January 2006 has been “a near collapse” of the Palestinian economy, as well as high unemployment and poverty rates.82 The establishment of the Caretaker Government in 17 June 2007 sworn in by President Abbas, declaring that the authority of Hamas was no longer legal in the Gaza Strip, led to the international community and Israel accepting this government and restarting economic and technical assistance.83 Israel began again transferring the clearance revenues and accrued interest it is obliged to transfer to the Caretaker Government led by President Abbas. As a result, the West Bank made some economic progress since 2007, however this economic progress did not encompass the Gaza population which amounts to 40 per cent of the population in the OPT.84 The World Bank reported in 2008 that the economic gap between the West Bank and Gaza widened as a result of the difficult situation in Gaza.85 The closure policy which Israel implemented as a response to the second Intifada in 2000 and which became stricter following the takeover by Hamas of the Gaza Strip in June 2007 has had such a devastating impact on the economy of Gaza that it will be very hard to undo the effects the World Bank has warned about.86 While the Palestinian economy in the OPT had a steady growth until 1999 due to both public investments and investments in private enterprises, such investments ceased and this has severely 80 81 82

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UNICEF, Occupied Palestinian Territory, Adolescence, www.unicef.org/oPt/children_213.html, accessed September 2008 UNICEF, Occupied Palestinian Territory, Adolescence, www.unicef.org/oPt/children_213.html, accessed September 2008 The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 1 of 4 The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 1 of 4 The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 2 of 4 The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 3 of 4 The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 3 of 4

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affected the Palestinian productive sector and instead created a dependency on governmental jobs and international aid.87 Deprivation, poverty, feelings of anger, frustration, hopelessness, feelings of powerlessness and despair have characterized the situation for the people in Gaza as a result of the continuous siege and escalating violence.88 This situation does gravely impact the mental health of the population and the psychological pain the people experience is being manifested in “high levels of domestic, tribal and community violence”.89 The effects of the situation on the children have consequences for not only their behaviour but for how they mentally think about social and political peace.90 The issue many Palestinians have had is that people have had a sense that they do not know how it is going to end, that people do not know where to go from here.91 The siege and the violence have also resulted in heightened feelings of resentment, oppression, defiance and extremism and these feelings risk affecting the mentality of the young people who risk developing new expressions of violence and ideologies of extremism in the future if not dealt with.92 This is being reflected in the growing radicalization of youth, and not only in Gaza, as there is increasing support of Hamas in the West Bank.93 The youth have had a sense that there is no future. To find a viable solution to the political situation is necessary. The violence the children have been exposed to in the Gaza Strip include killings, being maimed or injured, being caught in the cross-fire between local 87

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The World Bank Group, Country Brief, Middle East and North Africa Region, West Bank and Gaza, 2008, www.worldbank.org/WBSITE/EXTERNAL/COUNTRIES, May 27, 2008, p. 3 of 4 Gaza Community Mental Health Programme, On the Occasion of the “International Human Rights Day” the World Turns Their Back on the Palestinian Rights, 10 December, 2007, www.gcmhp.org/pr/includes/menus/print.asp?id Gaza Community Mental Health Programme, On the Occasion of the “International Human Rights Day” the World Turns Their Back on the Palestinian Rights, 10 December, 2007, www.gcmhp.org/pr/includes/menus/print.asp?id Gaza Community Mental Health Programme, On the Occasion of the “International Human Rights Day” the World Turns Their Back on the Palestinian Rights, 10 December, 2007, www.gcmhp.org/pr/includes/menus/print.asp?id Hansjoerg Strohmeyer, Chief of Policy Development and Studies Branch, OCHA, The Humanitarian Crisis in Gaza and Beyond, The Foundation for Middle East Peace and the UN Association of the National Capital Area, Carnegie Endowment for International Peace, Washington, D.C., March 3, 2008 Gaza Community Mental Health Programme, On the Occasion of the “International Human Rights Day” the World Turns Their Back on the Palestinian Rights, 10 December, 2007, www.gcmhp.org/pr/includes/menus/print.asp?id Hansjoerg Strohmeyer, Chief of Policy Development and Studies Branch, OCHA, The Humanitarian Crisis in Gaza and Beyond, The Foundation for Middle East Peace and the UN Association of the National Capital Area, Carnegie Endowment for International Peace, Washington, D.C., March 3, 2008

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

groups or between local forces and Israeli military forces, being shot in their living rooms, being struck by explosives or shellings in their backyards, and being shot at while in school. The Palestinian Centre for Human Rights (PCHR) has warned against the continuous militarization of the Palestinian society.94 The enveloping security chaos and the lack of the rule of law have not been an environment conducive to the building of a peaceful and democratic state. With the siege, the children grow up within a context where all people experience different degrees of trauma. This means that the adults the children depend on also experience trauma and might therefore not be able to adequately care for their children. Many people become restless and anxious because the siege traps them in such a way that they feel that they cannot escape or find a way out from the situation.95 Dr. El-Sarraj has explained that this leads to people building up a lot of violent energy that they must fi nd an outlet for which “makes everyone suffer from trauma, especially the children”.96 The Palestinian adolescents suffer to a great extent from the endless violence that they grow up with and they are an especially vulnerable group. For instance, of all the children killed in 2007 within the OPT, 78 per cent were between 13–17 years of age.97 UNICEF underlines that the never-ending violence leads to “extreme emotional duress” and “feelings of great insecurity” for the adolescents.98 More children have been dropping out at the secondary school level because of reasons such as “low learning achievements, poverty and early marriage”.99 Also, within the context of growing up to be responsible adults, the adolescents receive little information about issues such as HIV/AIDS and other current issues

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Palestinian Centre for Human Rights, PCHR Warns against the continued militarizing of society, Hamas members takeover the Khan Yunis Youth Club, 25 May, 2008, Ref: 49/2008, http://www.pchrgaza.org/fi les/PressR/English/2008/52-2008. html Amr, W, Interview with Iyad Sarraj in Gaza, Fear and fury traumatise Gazans up against Israel, April 28, 2001, Mid-East Realities, www.middleeast.org/print.cgi? Amr, W, Interview with Iyad Sarraj in Gaza, Fear and fury traumatise Gazans up against Israel, April 28, 2001, Mid-East Realities, www.middleeast.org/print.cgi? UNICEF, UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 UNICEF, UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 UNICEF, UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3

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of importance. UNICEF says that almost all adolescents know about HIV/AIDS, however 91 per cent do not know how to protect themselves from the disease.100 The value of a peace process should not be underestimated because a peace process has great value in itself in bringing some kind of normalcy to families and children. During the peace process in Palestine between 1994 and 2000, the children experienced some level of normalcy in their lives.101 They could focus on their studies and could dream about the future. But after the end of the peace process, the effects of the on-going conflict on the children and youth in the Palestinian territories have been devastating. The Palestinian Child Secretariat tried to get children in the Palestinian territories to imagine what they would do the following year. However, the children could not answer this question, because they could not see their future longer than to the present week. They said “I don’t know if I’m alive then”.102 Kairo Arafat, a child psychiatrist and the director of the Palestinian Child Secretariat, explains that “[c]hildren act in their own home environment”, and that the rights of the Palestinian children are being violated constantly.103 Further Kairo Arafat has pointed out that the Palestinian children learn very early on that “their parents cannot protect them from the bombs, the shootings, the house demolitions and the arrests”, and as well they have become accustomed to death.104 Kairo Arafat means that when children grow up in such environments they “lose their sense of fear, – even if they are fearful and anxious as all other children”.105 Marianne Albina, a Palestinian activist, argues that children growing up with so much uncertainty “become helpless, aggressive, afraid, extremely disobedient or compliant, depressed and fatigued”.106 Dr. El-Sarraj of the Gaza Community Mental Health Programme has said regarding the failure of the Oslo peace accord that “[i]t is true that the failure of 100 UNICEF Humanitarian Action Update, Occupied Palestinian Territory, 4 April, 2008, UNICEF’s emergency programmes focus on health, education, child protection and adolescent development, p. 3 101 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, (Palestinian psychiatrist warns that the violence creates young people without fear of death) Translated by author 102 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, Translated by author 103 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, Translated by author 104 See for instance Kairo Arafat in Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, and Marianne Alba, Palestinian children are not terrorists, October 15, 2004, Seattle Post-Intelligencer 105 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, Translated by author 106 Alba, M., Palestinian children are not terrorists, October 15, 2004, Seattle Post-Intelligencer

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

the Oslo peace accord [1993, author’s note] created an atmosphere of such profound disappointment and despair that a large portion of the population believed that they had nothing to lose and nothing to live for. Our nation has become one of anger and defiance. The struggle today is how not to become a suicide bomber, because there are long queues of people willing to join the road to heaven.”107 Kairo Arafat has stated that “I see children that are no longer afraid of Apache helicopters or of being shot at. They have gotten used to it. And they have gotten used to death. We have 13–14 year old children who say that ‘I don’t care if I die, since I’ll get to a better world then.’ These children don’t have any difficulties with reconciling with the thought of death. In their everyday life there are so many barriers, so many frustrations. They believe that their lives after death will become better lives.”108 Regarding the Palestinian suicide bombers Kairo Arafat has categorized them into three different groups:109 Some are fundamentalists. They see the Israeli military’s actions as direct harrassments of Islam. According to them, the only way they can defend their faith is through attacking Israelis wherever they are. – Others do it in order to become heroes. – For a third group it is more a matter of personal beliefs. They may have lost their closest relatives, experienced how the military has destroyed their homes, how family members have been jailed since a long time, how their cities and villages have been closed off for long periods of times. They take their lives to defend their nation. These young people know that Israel has one of the world’s most sophisticated weaponry, both in terms of materiel and expert-knowledge. The only weaponry they have is to offer their own lives – and that is probably the weapon the Israelis fear the most.

As a consequence of the continuous violence, the Palestinian children have developed deep-seated fears that have resulted in physical symptoms such as involuntary urination. According to the Director of the Psychiatric Hospital in Gaza, Aish Samour, 30 per cent of the children under the age of ten experience this condition.110 The exposure to high levels of violence on a continuous basis has long-reaching effects means Aish Samour. He means that “[a] child exposed to this much violence becomes violent in his interactions with his peers and sib-

107 Victor, B., Army of Roses, Inside the world of Palestinian women suicide bombers, 2003, p. 233 108 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, Translated by author 109 Hammargren, B. Palestinsk psykiater varnar för att våldet skapar unga utan rädsla för döden, April 11, 2002, Svenska Dagbladet, Translated by author 110 Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890.

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lings, and his condition lowers his educational level and weakens his ability to concentrate”.111 The increase of violence since 2006 including the inter-factional Palestinian violence has also increased the number of children that seek help at the Gazan Psychiatric Hospital with 30 per cent by 2007.112 The Gaza Community Mental Health Programme conducted a study that revealed that 45 per cent of the children that took part in the study had witnessed first-hand how Israeli soldiers had hit and insulted their fathers.113 Dr. El-Sarraj means that a child feels directly “estranged” if the child bears witness to the fact that the father cannot provide security.114 Dr. El-Sarraj explains that because of the on-going violence the children no longer have a sense of security and a sense of joy and happiness, which are the two main central foundation blocs for a child’s development.115 The loss of a sense of security and the fact that there is no protection from the violence not even within the family environment has real consequences. It leads to some children turning to the different armed groups. Dr. El-Sarraj means that the Palestinian children that turn to armed groups do so in order to obtain “a new strong identity that can protect them”.116 From the child’s perspective such groups give the impression of being able to provide not only protection but also some degree of certainty and discipline, as Dr. El-Sarraj says “Hamas, for instance, functions as a clan … It is a new family. It offers protection to the children who follow it. It offers an identity.”117 111

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Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health ./.and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Dr. Eyad El-Sarraj in Beaumont, Peter, Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, guardian.co.uk/world/2008/feb/10/

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

The chronic malnutrition has an effect on the intellect of the child, Dr. ElSarraj explains. He says that because of the malnutrition, 15 per cent of the children in Gaza experience “impairments in their intellectual abilities”.118 Research that is being done in Colombia regarding the consequences for children and youth that have been members of armed groups shows that in general terms the children and youth exhibit psychological symptoms such as difficulties in concentrating, nightmares, difficulties in establishing intimate relationships and that they are used to using violence as a way to interact with other people.119 Further research has shown that other psychological effects include aggression, irritability, a sense of loss of one’s personal identity, suicide thoughts, and the displaying of paranoid symptoms.120 Psycho-social symptoms were found to include lack of trust in other people, feelings of uncertainty of the future, feelings of loss of identity, difficulties in making decisions, the internalization of violent forms in order to achieve justice and an identity based on the use of force. Professor Duran Strauch argues that much more research needs to be done with regards to the psychological and psycho-social symptoms that children and youth suffer from as a consequence from having been members of an armed group.121 He means that each child’s experience is different from another child’s, and each child handles his or her experiences differently. Furthermore, in Colombia, there are differences from having been a member of one of the guerrilla groups, FARC or ELN, or of a paramilitary group because the children have had different experiences in these different groups and because of these different experiences they suffer from different health symptoms. Also, subsequent research has shown that regarding the social competences of these children and young people their interpersonal relationships are being affected, such as their ability to communicate, as well as their pro-social conducts such as their ability to take responsibility, to cooperate and show respectful behaviour, and other issues that can impede effective social interaction like adaption to norms, physical aggression and verbal aggression are also being affected.122 118

Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. 119 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 191, Translated by the author 120 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 191, Translated by the author 121 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 190-191, Translated by the author 122 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006, p. 212, Translated by the author

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Since the Palestinian and Israeli conflict has been going on for such a long time, Dr. El-Sarraj says that the violence and the repression that the children experience has been accumulating over the years and that this situation has an effect on the creative capacities of the child, and has led the child to use “extreme acts that reflect the pain and frustration” that the child experiences.123 In 2008 research showed that about 36 per cent of the Palestinian boys aged eight to 12 years and 17 per cent of the Palestinian girls wanted “to die in attacks on the occupation army”.124 Others point out that the scenes of the violence, killings and the destruction have led to behavioural changes in especially children of the primary school age.125 These scenes stay in the minds of the children and come out when the children draw pictures because most of the time they draw “jets, tanks, bulldozers, martyrs, destroyed homes and trees”.126 8.2.1.

How the Palestinian Internal Infighting Has Affected the Palestinian Children

The internal security chaos and lack of respect for the rule of law have continued in the Gaza Strip after “unprecedented levels of political violence” in 2007 conducted by the different factions of Fatah and Hamas.127 Many civilians including children lost their lives or were injured as bystanders to this violence, and between January and June 2007 about 350 had died and over 2,000 had been injured due to the violence.128 Amnesty International stated that grave human rights violations were carried out by all the security forces and armed groups

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Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Faten Shekshek, a social guidance counselor working in a program offering psychological support to children affected by shelling, in Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Amnesty International, Occupied Palestinian Territories, Torn apart by factional strife, 20 October, 2007, p. 1 of 28, http://archive.amnesty.org/library/print/ENGMDE210202007 Amnesty International, Occupied Palestinian Territories, Torn apart by factional strife, 20 October, 2007, p. 1 of 28, http://archive.amnesty.org/library/print/ENGMDE210202007

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

belonging to Fatah and Hamas showing no respect for the civilians.129 Further Amnesty International listed several abuses that both sides had been responsible for and they included the reckless use of force, deliberate killings of political opponents and of hostages, the use of hospitals, schools, civilian residential buildings from where attacks have been conducted, abductions, hostage-taking, arbitrary detention, torture and ill-treatment.130 The use of weapons in personal and clan disputes has worsened the security chaos situation in the Gaza Strip.131 As an example of the internal security chaos, the armed takeover by masked gunmen belonging to Hamas of the Khan Yunis youth club showed how the lack of the respect for the rule of law exposes civilians to arbitrary actions by groups that violate fundamental human rights.132 The prevalent presence of masked gunmen in the Gaza Strip also reflects the militarization of the society. When Hamas took over the Gaza Strip in June 2007 it was the first time that Hamas had actually controlled territory. The situation in the Gaza Strip increased the influence of Hamas’ local leaders as opposed to the Hamas leadership in the West Bank and in exile. Hamas initiated a campaign against the different opposition groups in Gaza, which seemed to have been coordinated and well planned.133 The Fatah leader in Gaza, Zakariya al-Agha, was arrested and imprisoned by Hamas as “a direct response” to the Hamas members of the Palestinian Legislative Council (PLC) being arrested in the West Bank by Fatah.134 Furthermore, the governors connected to the PA in Gaza City, Khan Yunis and Rafah were arrested by Hamas. The governor of Rafah alone was let go at the time. The Gaza police and the Qassam Brigades launched “a mass arrest campaign” where certain people were targets and where some had been indis-

129 Amnesty International, Occupied Palestinian Territories, Torn apart by factional strife, 20 October, 2007, p. 2of 28, http://archive.amnesty.org/library/print/ENGMDE210202007 130 Amnesty International, Occupied Palestinian Territories, Torn apart by factional strife, 20 October, 2007, p. 20 of 28, http://archive.amnesty.org/library/print/ENGMDE210202007 131 Palestinian Centre for Human Rights, Security Chaos and Proliferation of Weapons, Using Weapons in personal and clan disputes, 24 March 2008, “Two persons wounded in Khan Yunis by gunmen thought to be members of the ‘Izziddin alQassam Brigades”; 132 Such as the right to form associations, see Palestinian Centre for Human Rights, PCHR warns against the continued militarizing of society, Hamas members takeover the Khan Yunis youth club, 25 May, 2008, Ref: 49/2008, http://www.pchrgaza. org/fi les/PressR/English/2008/52-2008.html 133 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No.24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 5 134 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No.24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 6

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criminately arrested.135 Also, about 205 local political, social and cultural offices and organizations in Gaza became targets because of suspicions that they were connected to Fatah in Ramallah, of which 140 had been civil society organizations according to leaders of Fatah, while others were connected politically in one way or another.136 Just like the PA had justified a similar operation in the West Bank by Fatah against organizations suspected of being affi liated with Hamas, with saying that the organizations did not have official papers and were not following regulations from Ramallah, Hamas said that the Fatah affi liated organizations in Gaza did not follow the regulations of the interior ministry in Gaza.137 Several of these organizations could go back to work, except for those organizations where Hamas considered “Fatah had direct involvement” or that had “security concerns.”138 Some Hamas leaders have acknowledged “the excesses” of the powers that Hamas has shown including its use of excessive brutal force for example during the attack against the Hillis family in August 2008. However while these leaders have acknowledged the excesses and have understood the anger this has caused, they have said at the same time that they anticipate that the people would eventually be appreciative of the Hamas government and forget the excessive abuses.139 Keeping in mind Hamas’ own inability to forget the abuses of for example Fatah and pays back without a problem, these leaders’ anticipation might be to underestimate the power of other people’s emotions. Regarding the governmental agencies in Gaza, Hamas has wanted to have administrative control, and has focused on especially the ministries of health and education.140 While earlier Hamas replaced the upper tier of these governmental departments and public sector institutions consisting of Fatah members with Hamas affiliated persons, the lower tiers such as the teachers and healthcare workers were focused upon next, which Fatah responded to by organizing strikes by its affi liated workers. The competition between Fatah and Hamas has been on-going for a long time, with competing interests for influence and power. The Palestinian Authority that was created in 1994 conducted arbitrary arrests and used torture of those Palestinian men they thought were opposing them from the start of its estab135

International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 6 136 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 6 137 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 6 138 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 6 139 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 8 140 International Crisis Group, Round Two in Gaza, Update Briefing, Middle East Briefing No24, Gaza City/Ramallah/Brussels, 11 September 2008, p. 8

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

lishment.141 The Palestinian Authority has long been characterized by corruption and favouritism. The renewed internal in-fighting since 2000 has manifested in tribal and family feuds, which has resulted in a political fragmentation and a restriction of people’s sense of identity.142 The Palestinian aggression that had been directed solely against Israel began to be directed against the Palestinian community itself. These signs have been reflected in the establishment of new armed militia groups and that people have taken the law into their own hands due to the authority and law vacuum that has been created.143 Also, leaflets were beginning to be circulated that accused members of the Palestinian Authority of being corrupt and they also received death threats. In terms of identity, with Israel as the common enemy, people saw themselves as Palestinians. However with the internal in-fighting, people have increasingly come to represent militia groups, a political party or a tribe or a family, and that identity takes precedent over a national identity.144 The going back and forth of the internal Palestinian violence culminated in the summer of 2007 with the Hamas takeover of the Gaza Strip after Hamas won the Palestinian legislative council elections in Gaza in January 2006, with members of Hamas screaming “payback time” to the Fatah members they were fighting with. The inter-factional fighting since 2006 between Hamas and Fatah has had devastating effects on the sense of unity among the Palestinian people which also has now trickled down to how children are being treated and how they act towards each other. “We are pushed all the time to be more political, more militant, more religious, more extreme” argues Shadi el-Haj a student at An Najah.145 He continues “We want to be Palestinians, like the generation of the first intifada. But people push you, ‘Are you Fatah or Hamas?’ All our problems start with, ‘I’m Fatah, I’m Hamas.’ It wasn’t like that before”.146 Children as young as eight years old have been harassed by armed men from Hamas for wearing a Fatah garment.147 An eight year old boy, Shahab al-Akhras, was harassed by four armed men from Hamas on a street in Rafah because he wore “the hata” which is the 141 142 143 144 145 146 147

El-Sarraj, Eyad, Dr., The Psychosocial causes for the Palestinian factional war, January 10,, 2007, http://www.gcmhp.org/topic_details.asp?id=367&type=2 The Palestinian Report, Interview with Eyad Sarraj, Media Monitors Network, February 8, 2001 The Palestinian Report, Interview with Eyad Sarraj, Media Monitors Network, February 8, 2001 The Palestinian Report, Interview with Eyad Sarraj, Media Monitors Network, February 8, 2001 Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias

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scarf that is connected to Fatah.148 The boy said “[t]hey took off my shoes and put them on the scarf and stamped on them. … Then they told me to put out my arms in front of me and beat me with a stick. They said that if they saw me wearing the scarf again they would shoot me in the legs. I hate them!”149 Hamas seemed to have defeated Fatah in Gaza in the summer of 2007, and many children of members of Fatah witnessed their fathers and other male relatives losing this fight. Some of these children have now become rebellious and adopting adult responsibilities and are increasingly defying members of Hamas in ways that the adults would not be able to do.150 This rebellion has had the consequences of having schools divided and making not only teachers and other members of the society concerned, but also members of the different armed groups.151 An ex-spokesperson for Hamas, Ghazi Hamid, has stated that “I have never seen such splits in Palestinian society. Such hatred. And it really worries me. I have eight children and they talk about what goes on in school. The children abuse each other over what party they say they follow. Because people know who I am, I am recognised in the streets. Then they shout: ‘Shia! Shia!’ It is shameful.”152 When youth direct their violence against each other it deepens the sense of division that is already there even further. Within the context of increased extremism, bitterness and polarization that exist already between the adults, the children and youth are to find their way growing up. This division between adults is now having an effect on their children and it risks having negative consequences for a peace process as well as for the final establishment of an independent takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10/israelandthepalestinia... 148 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 149 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 150 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 151 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 152 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia...

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Palestinian state. If this division is allowed to deepen then what will an independent Palestinian state be built on and consist of? If hate between children and youth is allowed to continue, how then can that hatred be conducive for a peace process with the Israeli people? What is very disturbing is that very young children are becoming deeply affected by this sense of division. As a mother of a five year old daughter explained: “I once took my primary school age daughter out to a park, and there was this other little girl there. My daughter came to me and said the other girl kept saying how Hamas was better than Fatah. I told her to go back and talk about school things and play. But the other girl just carried on ... It is damaging everything, this hatred. What will happen when these five-year-olds become 18? All these children will remember is how Fatah and Hamas fought. That is why I am worried for the future.”153 Dr. El-Sarraj of the Gaza Community Mental Health Programme says that also his then two-year old son was “very pre-occupied” with the question of who belongs to Fatah or Hamas.154 His son asked him if he was Fatah or Hamas, while he always answered “I’m Palestinian”. Professor Nader Said of Birzeit University in Ramallah argues that “with this internal fighting, there is more and more a feeling that we don’t deserve a state, that we’re inadequate, which kills the morale of the young”.155 Mr. Zubeidi, “a hero of the first Intifada”, has explained that “[w]hen I was younger I thought, ‘if I die, that’s natural, it’s for a cause.’ … And today I think differently. To die? For what? For these people who can’t agree? That’s what this generation fears. That it is lost, and its sacrifices are meaningless. Is the Palestinian dream dying? In these circumstances, yes.”156 Youth played a key role during the first Intifada, but that is not the case any longer. “[N]ow the youth are irrelevant”, says Professor Nader Said.157 As Erlanger explains “this generation has lost faith in political solutions”. Professor Nader

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Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times: At the time of the article Mr. Zubeidi was heading the Al Aksa Martyrs Brigades in Jenin. Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times

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Said continues that “[t]hey haven’t lived one moment in a period of real hope for a real state”.158 One of the most harmful results of the second Intifada, is the glorification of death. Dr. El-Sarraj means that “the psychology of the people has changed with many younger Palestinians instinctively prepared to sacrifice their lives.”159 He continues that the Intifada not being constrained was “a disaster” from the beginning, not only resulting in a cult of death, “but also in vigitalism, revenge killings and a frayed social fabric”.160 Other internal consequences have been a proliferation of militias, mafiosos, security officers and weapons, in a context of impunity.161 The level of internal violence that Palestinian children and youth have experienced is very high. As an example Fatah conducted a demonstration in Gaza in November 2007 in memory of Yassar Arafat, and the demonstrators were attacked by members of Hamas.162 Several children were injured and the severities of the injuries reveal how much violence children are encountering. As examples, one 13 year old boy was shot in the head, an 11 year old boy was shot in the stomach and a twelve year old boy was so severely beaten that his pelvis broke.163 This violence that children and youth experience is being committed within the context of increased intra-family violence, in addition to the violence that has been committed by the different Palestinian factions between the adults and the violence committed by the Israeli military and security forces. However, not all children and youth are glorifying death. Rafat a 13 year old boy is the grandchild of the Hamas member and suicide bomber Fatima al-Najar. In 2006 she died when detonating a bomb injuring five Israeli soldiers. Rafat does not want to belong to any party and says “I don’t want to belong to Hamas, or any party. … But there is sometimes trouble at school between the parties. There 158

Erlanger, S., Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times 159 Dr. Iyad Sarraj in Profi le: Mood of Palestinians in the Fift h Year of the Current Intifada, All Things Considered, October 14, 2004, National Public Radio, www.npr. org/programs/atc/transcripts/2004/oct/041014.mccart 160 Dr. Iyad Sarraj in Profi le: Mood of Palestinians in the Fift h Year of the Current Intifada, All Things Considered, October 14, 2004, National Public Radio, www.npr. org/programs/atc/transcripts/2004/oct/041014.mccart 161 Dr. Iyad Sarraj in Profi le: Mood of Palestinians in the Fift h Year of the Current Intifada, All Things Considered, October 14, 2004, National Public Radio, www.npr. org/programs/atc/transcripts/2004/oct/041014.mccart 162 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 163 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia...

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

are arguments and fights. And there is pressure from other students to join their side.”164 Rafat explains further how the situation is at his school and how much the two political parties have infi ltrated the school environment: “The first day of term they’ll hand you timetables they’ve made up to show how good their party is, or get your books or they ask you to sit with them. If you do that and the other side sees you sitting with people from the other party, then they won’t talk to you again. It bothers me that politics is coming into school, which should be a place just for learning. But since the internal violence between Hamas and Fatah, it is happening so much more.”165 The continuous siege and the sanctions regime of February 2006 have led to widespread poverty in especially the Gaza Strip, since at the time donors stopped sending aid while Israel stopped paying out the tax and custom money it collected on behalf of the Palestinians.166 These decisions led to a situation where in 2006 the 165,000 employed by the Palestinian Authority got no more than 50 per cent of their salaries.167 By August 2007 more than 90 per cent of the population in Gaza were living under “the official poverty line”, and about 1.1 million people out of the 1.4 million people living in the Gaza Strip were given food aid from UNRWA and the World Food Programme.168 While the living conditions in Gaza had even before 2006 been very difficult, they have taken a turn for the worse in Gaza, and the international sanctions have had severe consequences on governance, law and order and the social cohesion among the population, with the Palestinian security agencies not having had enough capacity to deal with the situation.169 Also many people have lost their jobs, and unemployment and poverty have led to the social network that had existed before in Gaza not 164 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www/ guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 165 Beaumont, P., Gaza’s factions take their fight into the school playgrounds, Children as young as five are learning a deep hatred as the power struggle between militias takes a disturbing new course, The Observer, Sunday February 10, 2008, www. guardian.co.uk/world/2008/feb/10//israelandthepalestinia... 166 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 167 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 168 United Nation, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, A/62/275, 17 August, 2007, para. 21, p. 11 169 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington DC, May 22, 2007, webcast, www.wilsoncenter.org

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functioning properly.170 At the same time as the conflict with Israel as well as the internal infighting continue several people have become very pessimistic.171 The Gaza Strip was designated by Israel “a hostile territory” in September 2007 which further worsened the situation.172 In addition, because of the internal infighting and continuous violence people have begun to lose hope. Also, since year 2000 there has been “an increasing conservatism” in Gaza, and after Gaza was closed off in 2006 many people turned even more to introverted ideas since people have not been able to leave Gaza.173 The whole situation has led to low morale in Gaza and the siege is threatening the whole social fabric of the society.174 That the escalation of violence from 2007 has had psychological consequences for the people in the Gaza Strip is shown by a survey conducted by Dr. Taiseer Diab.175 Dr. Taiseer Diab found that there were considerable clinical differences among the Gazan population regarding their mental health between two time periods surveyed by him in 2007. Dr. Diab looked at the period between 1 January 2007 and 1 June 2007 and compared it with the period between 1 June 2007 and 30 November 2007. It was found that in the second period “new psychological symptoms” had developed due to the escalating violence, and that people experienced symptoms such as “identification with the aggressor, feelings of mistrust between people, frustration, hopelessness, and lack a sense of affi liation with a group”.176 In the second period it was also found that there was “a significant increase” of

170 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 171 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 172 United Nations Security Council, Under-Secretary-General, Briefi ng Security Council, Tells of Deep Concern Over Palestinian Situation, Amid Intensive Political Dialogue, on Lebanon, he calls Presidential election ‘essential’ after failure to hold vote, SC/9155, 24 October, 2007 173 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 174 United Nation, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, A/62/275, 17 August, 2007, para. 21, p. 11 175 Dr. Taiseer Diab, GCMHP Conducts a Study Day on the impacts of siege on the Palestinians mental health, 11 December, 2007, p. 1 of 2, www.gcmhp.net/File_fi les/ news11Dec2k7E.html 176 Dr. Taiseer Diab, GCMHP Conducts a Study Day on the impacts of siege on the Palestinians mental health, 11 December, 2007, p. 2 of 2, www.gcmhp.net/File_fi les/ news11Dec2k7E.html

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

fear, feelings of insecurity, irritability, and domestic violence.177 More school children and university students showed poor concentration in their school work. Before the international community imposed the sanctions regime in 2006, the international budgetary and development support of about USD 6.5 billion that had been thought to have been given to the Palestinian Authority was “the highest per capita aid” provided to any developing country, and by May 2007 it was falling apart.178 There have been very high human and material costs as a result of the international sanctions. For instance Save the Children reported in 2007 that over 70 per cent of the nine month old children were anaemic in Gaza, 140 Palestinian children died during 2006 because of the violence, and that about “two thirds of the children living in the West Bank and Gaza do not have safe areas for entertainment, socializing and playing sports”.179 In the West Bank and Gaza, 73 per cent of the 40,000 children under 18 years of age have had to work because they have needed to help support their families because of the poverty according to Save the Children. With the Operation Cast Lead between late December 2008 and January 2009, the situation has deteriorated even further. 8.3.

The Effects on Parenthood and Families and the Concept of Protecting the Children We are really in a dilemma. Our family structure is disrupted, and children grow up with little guidance. With the war, the ‘fireplace values’ passed on through storytelling are no longer there. – George Omono of GUSCO, northern Uganda180 I feel there is no way I can protect them or hide them”, Mrs. Assar says. Her husband Mr. Assar continues: “We can’t give them security and safety. They can’t

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Dr. Taiseer Diab, GCMHP Conducts a Study Day on the impacts of siege on the Palestinians mental health, 11 December, 2007, p. 2 of 2, www.gcmhp.net/File_fi les/ news11Dec2k7E.html 178 Karen Koning Abu Zayd, Commissioner-General, UNRWA, Palestinian Refugees: A Challenge for our Times, speech at Woodrow Wilson International Center for Scholars, Washington D.C., May 22, 2007, webcast, www.wilsoncenter.org 179 Save the Children, West Bank and Gaza Strip, Save the children in the West Bank and Gaza, http://www.savethechildren.org/countries/middle-east-eurasia/westbank-and-gaza-strip.htm, 11/08/2007 180 Women’s Commission for Refugee Women and Children, Youth speak out: New voices on the protection and participation of young people affected by armed conflict, January 2005, p. 15

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live as normal children. When a kid realizes a parent can’t supply security and safety, what is the point of these parents?”181 – Mr. and Mrs. Assar, Palestinian parents of two children

A conflict situation in many ways takes away the ability of parents to conduct effective parenting in various ways. In the occupied Palestinian territories there are different types of violence that the children are exposed to within the family context. They include intra-family violence where the mother or the father use physical violence against their children and/or each other, and/or violence such as when fathers have been beaten, tortured or threatened either by internal Palestinian armed groups or by Israeli forces. To help the child heal it is important that the child can re-establish “a sense of emotional attachment and a sense of continuity of care”, and therefore the communities need to become part of the response.182 A child can gain a better sense of self-understanding by having contacts with relatives, friends and other people who share the same language, culture and physical features.183 As Elbedour et al. have stated, “[c]hildren of war often progress along a series of emotional reactions to the situation in which their emotional damage cannot be understood apart from the intra-and extra-familial dynamic processes in which they are living”.184 The lack of protection for the children also indicates that there is a level of acceptance of the violence since there has been no intervention or effort to stop it. This must be very confusing for the children, and which worsens the feelings of confusion and fear that might already be present. It also might lead to the children believing that the use of violence is acceptable. When parents start to lose their ability to provide adequate parenting and provide for the most basic needs this has consequences for the children. The lack of protection and the perception that it is acceptable to use violence, risks leading to some children losing not only confidence in the adults but also to stop counting on the adults in general. This might result in them not taking adults seriously anymore, which will lead them to do things on their own, in their own way, and become more independent and turn to new alternative people and groups that they believe they can count on.

181

Erlanger, Steven, Years of strife and lost hope scar young Palestinians, March 12, 2007, New York Times 182 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 816 183 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 816 184 Elbedour, S., Ten Bensel, R., Bastien, D. T., Ecological integrated model of children of war: individual and social psychology, Child Abuse and Neglect, Vol. 17, p. 805819, 1993, p. 817

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

In a Palestinian study in 2006, one-third of the parents interviewed said that they were not able to fully care for their children.185 In a subsequent study in 2006, one in two mothers interviewed said that their children had been exposed to violence, of which 93.3 per cent revealed that another family member was the abuser.186 It has been shown that constant violence has an effect on the whole family and that it is not only the children who become traumatized, their parents also become traumatized without always consciously understanding it. This in turn affects how they are able to care for their children. Dr. Aish Samour of the Gazan Psychiatric Hospital said in 2008 that 47 per cent of the children patients were experiencing psychological shock, but that their families had not understood this.187 Violence is an endemic feature in the Palestinian camps, in Lebanon, the West Bank and Gaza. Violence against women and children has increased. UNRWA has noticed that intra-family violence has increased due to the over-crowded living conditions, poverty and unemployment.188 The unemployment and poverty make people and especially the men feel useless, and some men take that frustration out on their families. Dr. El-Sarraj of the Gaza Community Mental Health Programme stated in 2001 regarding the increase of intra-family abuse that “in many cases children perceive the trauma through the eyes of the parents, through their behaviour. A father tortured in Israeli jails would come home and project all his anger and aggressiveness against his wife and children. Domestic abuse is on the rise again.”189 In 2007 two in five women were victims of violence, while in 2006 the number was one in five.190 Also honour killings have increased, with 12 such killings in 2007 while there were four killings in 2004.191 In the Palestinian context it has been shown that since many of the Palestinian parents cannot provide for their children’s most basic needs, such

185 186 187

188 189 190 191

UNICEF, Occupied Palestinian Territory, Action, Child Protection, www.unicef. org/oPt/protection.html, 2008-06-04 UNICEF, Occupied Palestinian Territory, Action, Child Protection, www.unicef. org/oPt/protection.html, 2008-06-04 Saleh Al-Naami, Gaza’s suffering children, the Israeli occupation and its relentless attacks destroy the mental health and lives of children of Gaza, Al-Ahram Weekly On-line, 27 March-2 April 2008, Issue No. 890. Andrew Whitley, Director of the Representative Office UNRWA meeting at the UNRWA office at the United Nations, New York, March 24, 2008 Amr, W, Interview with Iyad Sarraj in Gaza, Fear and fury traumatise Gazans up against Israel, April 28, 2001, www.Middle East.org/read UNICEF humanitarian action update, Occupied Palestinian Territory, 17 December 2007, UNICEF is responding to the urgent needs of children and women, p. 2 UNICEF humanitarian action update, Occupied Palestinian Territory, 17 December 2007, UNICEF is responding to the urgent needs of children and women, p. 2

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as food and security the children feel abandoned and neglected.192 The change in the dynamics of the conflict since the second Intifada – with a continuous siege, international sanctions, an escalation of internal infighting and violence – has also impacted the ability of the Palestinian parents to provide protection of the children from the violence psychologically. Research regarding the first Intifada has showed that “perceived parental acceptance” regarding Intifada participation had the effect of protecting the male adolescents “from the stress and trauma of the political violence” they experienced in such a way that their children did not engage in more antisocial behaviour, while the adolescent males who participated in the Infitifada and had “lower levels of parental acceptance” actually showed “higher levels of antisocial behavior”.193 Without that parental protection the children become totally exposed to the violence and in a sense are on their own in finding a way through the violence. With the decreasing authority of the fathers and the family values as is happening in the Gaza Strip, the parents risk having less impact on the values and morality of the child and the child risks turning elsewhere for not only protection but guidance. It is also of importance to note that during the first Intifada, the importance of school and religion played a role regarding the behaviour of the children. Research has also shown that school values and religiosity protected youth who participated in the Intifada from antisocial behaviour.194 This can be interpreted to mean that real, positive and healthy values carry an invaluable importance and if those values are becoming of lesser value in the context of a disintegrating society, these values will be replaced by other values reflecting that society at that given time. In many cases the children need to take on the responsibility of an adult for their families because of the poverty in the context of an on-going conflict. Some children have supported their families through sending money or food to them while being a member of an armed group such as in DRC.195 As long as the conflict is still on-going and the peace process not complete, becoming reintegrated into the family and the community requires an approach where the family is supported in a way that the child can go to school and ultimately be able to build a new life. As long as the seemingly only viable option to earn money or receive food is through joining an armed group, the risk remains that the child can feel 192 Gaza Community Mental Health Programme, On the Occasion of the “International Human Rights Day” the World Turns Their Back on the Palestinian Rights, 10 December, 2007, www.gcmhp.org/pr/includes/menus/print.asp?id 193 Barber, Brian, K., Political Violence, Social Integration, and Youth Functioning: Palestinian Youth from the Intifada, Journal of Community Psychology, Vol. 29, No. 3, 259-280, 2001, p. 274 194 Barber, Brian, K., Political Violence, Social Integration, and Youth Functioning: Palestinian Youth from the Intifada, Journal of Community Psychology, Vol. 29, No. 3, 259-280, 2001, p. 275 195 Amnesty International, The Democratic Republic of Congo: Children at war, creating hope for the future, p. 17-18.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

pressured or forced to re-join an armed group in order to be able to support the family. The children in this context need to grow up very fast and their childhoods are lost. Because of the devastating impact of the on-going conflict and general societal pressures and changes in the DRC, many parents cannot cope well as providers for their children. This includes not being able to pay school fees and medical fees, as well as not being able to provide emotional support to the children. This is manifested in different ways such as that the whole concept of protecting children has become a low priority for families.196 Another issue is “increasing social violence against children” in DRC where one manifestation is children being accused of witchcraft which can take many forms and where children are at times being rejected by their parents.197 In the context of witchcraft some children are violated against by their own parents because of a severe breakdown in the structure of the family.198 In other situations, the combination of external threats faced by families pushes parents or guardians to negatively magnify individual characteristics and likes and dislikes of the child, including disability, behavioural issues, or liking a particular musical instrument into something that is wrong with the child, to the point that they are considered possessed by witchcraft.199 However this is only one reason, other reasons are changes in family relations and lack of community support. Further some revivalist churches in DRC play a big role in promoting witchcraft, and here it is the church that provides a remedy against witchcraft for the parents and children against a fee.200 To make the situation even more complicated, these families are many times dependent upon these churches as they receive basic social services from them. Here, as Aguilar Molina of Save the Children underlines, another “striking” issue “is the State authorities’ complete failure to take any action to halt” witchcraft and the violence against children by not enforcing laws and protecting the children, which the government is ultimately responsible

196 Save the Children, The True Face of War, 27/04/2005. 197 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 21, 34 198 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 19, 22 199 Save the Children, The Invention of Child Witches in DRC: la Sorcière, 27/02/2006; and Visit to Centre Olame, Bukavu, South Kivu, May 2007 200 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 24, and Save the Children, The Invention of Child Witches in DRC: la Sorcière, 27/02/2006

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for.201 For instance some state and community officials earn money (illegally) by awarding permits to revivalist churches so that they can “legally” function.202 Further as Aguilar Molina of Save the Children importantly emphasizes, any cultural changes that are taking place in the different countries must be studied and the real problems that the population have to address must be acknowledged in order for different actors to be able to be of assistance in these situations.203 In the context of the societal and cultural changes taking place in so many countries, Aguilar Molina of Save the Children further means that the international aid organizations need to acknowledge and understand these properly with an open eye to fundamentally be able to offer help and not apply their own cultural interpretations onto something that they might actually not understand but need to learn about.204 That the situation is very complex in DRC is further shown by the International Crisis Group (ICG) reporting in 2003 that as a result of “the trauma of violence” more ritual killings took place within the Lendu and Hema communities in Ituri including in Bunia.205 When conducting a ritual for protection, elements of that ritual consisted of mutilating bodies, engaging in cannibalism and trophies showing body parts, and this was carried out in a systematic way from 2000 by the Lendu militias.206 Later the displaced people fleeing the extreme violence in Bunia also began using witchcraft as well as rituals.207 As the ICG reported “[w]hereas initially a drink mixture combined with drugs was believed sufficient to protect against bullet wounds, the consumption of human body parts slowly became a must”.208 Then the Hema community began doing the same. These are multifaceted issues that really require much thought and work. 201 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 21 202 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 6, 21 203 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 34 204 Aguilar Molina, J., Save the Children, The Invention of Child Witches in the Democratic Republic of Congo, Social cleansing, religious commerce and the difficulties of being a parent in an urban culture, March 2006, p. 34 205 International Crisis Group, Congo Crisis: Military Intervention in Ituri, 13 June 2003, p. 6 206 International Crisis Group, Congo Crisis: Military Intervention in Ituri, 13 June 2003, p. 6 207 International Crisis Group, Congo Crisis: Military Intervention in Ituri, 13 June 2003, p. 6 208 International Crisis Group, Congo Crisis: Military Intervention in Ituri, 13 June 2003, p. 6

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

In the DRC the parents are so stressed and become overwhelmed by the constant pressures and stresses, so that anything viewed as negative is being misinterpreted into something severely wrong, and they project their overwhelming feelings onto the child. The child becomes the problem, and if there is anything wrong with the child, this becomes magnified into something enormous. Instead of having to deal with and find ways to address the pressures that cause so much distress, the parents project these stresses onto the children and make them wrong. All perspective is lost. This shows that there is a great need to assist families in conflict areas in how to handle these fundamental stresses psychologically, especially in prolonged situations. That the lack of adequate parenting is of a major concern for children and youth in armed conflict has been shown by for instance a study conducted in Kosovo, northern Uganda and Sierra Leone by the Women’s Commission for Refugee Women and Children.209 In this study it was shown that young people in northern Uganda and Sierra Leone cited as major issues for them for instance lack of parental and family care, child abuse and neglect by elders and the government.210 In all the three countries where the Women’s Commission for Refugee Women and Children carried out surveys, all children and youth surveyed said that gaps in family and community support had a profound impact in seriously making them even more vulnerable to different kinds of threats.211 Many of the children explained that they felt betrayed by adults and society, and that they many times did not feel loved and cared for.212 One consequence was that friendships were even more central to the lives of these children and youth, as they felt that the adults failed them by not being able to protect them. Much more research is needed on these issues both from the perspective of the parents and of the children, and on what can be done to alleviate the burden of both parents and children. In Colombia, Instituto Colombiano de Bienestar Familiar (ICBF) and Profamilia have noted that because of “the pressure and changes in the family dynamics” due to displacement, there is a rise in domestic violence within these

209 Women’s Commission for Refugee Women and Children, Youth speaks out: New voices on the protection and participation of young people affected by armed conflict, January 2005 210 Women’s Commission for Refugee Women and Children, Youth speaks out: New voices on the protection and participation of young people affected by armed conflict, January 2005, p. 7 211 Women’s Commission for Refugee Women and Children, Youth speaks out: New voices on the protection and participation of young people affected by armed conflict, January 2005, p. 6 212 Women’s Commission for Refugee Women and Children, Youth speaks out: New voices on the protection and participation of young people affected by armed conflict, January 2005, p. 16

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families.213 The Women’s Commission for Refugee Women and Children has stated that in refugee and IDP settings domestic violence is “the most under-reported and ignored form of gender-based violence”.214 Also, the internal displacement of families many times leads to family members becoming separated to the point that they “dissolve themselves” as a family and stop to exist as a family unit.215 In addition, 175,000 to 200,000 people from Colombia are estimated to have become refugees in the neighbouring countries, but very few have received recognition as a refugee.216 Of those refugees, women and children constitute 75 to 80 per cent, which equals the percentage for the internally displaced. The control that some of the paramilitary groups in Colombia hold over the population also has psycho-social consequences for the dynamics within the family units. These groups in some areas decide what for instance young women are to wear or how to behave, and what the parents find to be acceptable clothing and/or behavior is disregarded by these groups.217 With the armed actor being part of the public sphere in society, interfering in the private sphere of people through this control of what to wear, who to see and how to handle family conflicts distorts parental authority.218 Duran Strauch stresses that the parental authority within the family is in this way replaced with the military actor’s mindset of war which includes notions of “domination, control, exclusion, imposition and alienation”.219 The way families negotiate and work things out together is here substituted through the introduction of the use of force by the military actor and a military authoritarian mind-set. The family no longer functions as a protective unit for the development of the child with regards to those children who have become associated with an

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Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October, 2006, para. 84; www.cidh.org/countryrep/ColombiaMujeres06eng/I-II.htm Women’s Commission for Refugee Women and Children, Displaced women and girls at risk: Risk factors, protection solutions and resource tools, February 2006, p. 10 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 3 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 3-4 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 10 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 11 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 11

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

armed group.220 The armed group replaces the family unit as well as takes the place of the child’s parents and this way the parents’ authority and ability to parent the child are broken by the armed group. As Duran Strauch explains the children stop going to school and lose their childhood friends, while at the same time they are forced to take part in adult activities such as becoming combatants, porters, or engaging in sexual activities. It can be very confusing in many ways for the children to have a mother and a father who go through all of the ordeals in a war situation, as many times issues are hidden while at the same time there might be a lot of tension, grief, anger and guilt in the family environment. For instance in Georgia there have been high levels of domestic violence among the IDPs after the August war in 2008, which shows the need for trauma and psychological assistance to the IDPs including for the families, which has been lacking.221 In these environments the children might think that they do not have anyone to turn to for help. To live in a context of fear and chaos and to see family and friends die leads to a lot of confusion for children because they live with a fear and confusion that they might not understand. The lack of protection for children from the violence also to some degree indicates a degree of acceptance of the violence since it is allowed to continue. The fact is that the children and their families are left to fend for themselves, in a context of no protection of civilians. This also leads to parental and family breakdown, in that many parents because of an overwhelming disastrous situation stop being able to care for their children. Children and their situation are not really taken into account or being respected, they are merely viewed as victims of war and not as valuable participants of society. With the constant violations of their human rights how can a child be expected to respect the rights of others when, as an example, in school a child sees a schoolmate or a teacher being killed? The fear and uncertainty such situations create deeply affect the child. How can a child understand that he or she has a right to live in peace and dignity in such an environment? What does the right to education mean in such a situation? What does the child’s concept of peace consist of and what will it develop into?

220 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 9 221 Tinatin Khidasheli, International Secretary, Republican Party of Georgia, and Giorgi Chkheidze, Executive Director, Georgian Young Lawyers’ Association, Human Rights, Democracy and Displacement in Georgia, A Brookings-Bern Project on Internal Displacement, November 19, 2010; See also August Ruins, Report of the Georgian Non-Governmental Organizations on Violations of Fundamental Human Rights & International Humanitarian Law, August War 2008, Tbilisi 2009

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8.3.1.

The Specific Relationship Between Mothers and Their Children

A psychosocial intervention programme was created for a group of displaced mothers in Bosnia-Hercegovina in 1996 for five months with weekly group meetings with the purpose of assessing how such an intervention would affect their children and the psychosocial functioning of their young children aged between five to six years in war conditions.222 In addition, their mother’s mental health was to be examined. The intervention for the mothers was shown to have positive effects on their children, with reductions of their restlessness, distractibility, clinginess and drastic mood changes.223 The most significant positive change was that there was a considerable higher weight gain among the children whose mothers participated in this intervention as opposed to those that did not, with the children in the intervention group weighing 600 grams more when compared to the other children.224 These children had before the intervention weighed one to two kilos less and had been 0.5 to 1 centimetre shorter when compared to the normal weight and height in Bosnia.225 The trauma symptoms of the mothers were reduced and the level of their life satisfaction improved, as a result of the intervention. In addition, among other things the cognitive performance of the children got better and the mothers described the children in more positive terms. These findings are of significance because it was a programme for the mothers in which the children did not participate, and as such, they were only indirectly affected and still there were such positive consequences for them.226 One reason for these positive findings was the possibility that since the intervention resulted in that the mothers’ distress symptoms declined, they had more resources to care for their children.227 The intervention was undertaken six months after the conclu-

222 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1214 223 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1224 224 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1224 225 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1226 226 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1227 227 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1228

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

sion of the Dayton Peace Agreement in 1995. As Dybdahl explained, the findings indicated that exposure to trauma had been very severe in general for the Bosnian population as the trauma experiences the women who participated had endured were not unique and it was shown that the women’s distress levels were high not only before the intervention but also afterwards, and it is therefore very important to plan for psychosocial interventions early on in war situations irrespective of challenges as there is an urgency to address the needs that are there.228 8.3.2.

The Situation for Children in Gaza During and After Operation Cast Lead

When Operation Cast Lead began on 27 December 2008 staff at the Gaza Community Mental Health Programme (GCMHP) reported through emails on 1 January 2009 that the children were terrified, and that people tried to keep the children from watching TV where war scenes were being continuously broadcasted. Children were screaming when bombs close to their homes hit the ground, and many symptoms of trauma were directly noticeable among the children as a reaction to the bombings, including everything from bedwetting at night, the children holding on to or wanting to be very close to the older members of the families, many children thinking that they wanted to die together with their parents, that they did not want to be left alone, that they were panic-stricken, and hyperactivity. Dr. Eyad El-Sarraj reported through GCMHP’s website on 31 December 2008 that during the ten minutes of bombings of 300 targets by 100 Israeli F16 planes (this was one such targeted attack alone) about 200 people died and many more were injured. He described how his stepdaughter at first was totally quiet, and then started to cry and laugh hysterically as a response to the first bombings of 28 December 2008. In these types of situations the parents and other adults cannot protect the children from harm, because they are themselves unprotected and traumatized. The United Nations said that there was no safe place in the Gaza Strip, and this was in the context that the population was not allowed to flee the Gaza Strip, and therefore they could not flee from the bombings. At the time there were talks about finding a way to evacuate the children and bring them to safer areas outside of the Gaza Strip, but such a separation risks only to make worse the psychological conditions for the children (which the author pointed out at the time as part of such a discussion). For a child to be separated from his or her family can be an especially traumatic event because “this separation often results in the loss of primary caregivers, which eliminates a crucial protective factor against stress in times of war”.229 228 Dybdahl, R., Children and Mothers in War: An Outcome Study of a Psychosocial Intervention Program, Child Development, July/August 2001, Volume 72, Number 4, p. 1214-1230, p. 1225 and 1228 229 Thabet et al., 2004, Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, Grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 20

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The Gaza Community Mental Health Programme has continuously stressed the negative psychological and behavioural reactions children exhibit as a result of having been exposed to different forms of aggression in the context of an armed conflict. The Programme’s study “Effect of war on Palestinian children’s mental health in the Gaza Strip” found that after the 23 days long war on Gaza by Israel from December 2008 to January 2009 (Operation Cast Lead), 42 per cent of the children surveyed expected that they would experience similar events in the future; 36.4 per cent of the children felt disturbed and tense by events that reminded them of the war; 98.5 per cent of the children felt powerless when it came to their ability to protect themselves and other people’s inability to protect them during the war; and 61.5 per cent of the parents saw the emergence of unusual behaviour among their children as a result of the war, such as continuous crying and restlessness; 40.6 per cent of the parents said that their children had problems with their peers; 82.1 per cent of the children were convinced that Gaza was unsafe; 73.5 per cent of the children were afraid of being targeted and killed; and 76.6 per cent were afraid that they would again experience what they went through during the war.230 As a consequence of the war, 2.1 per cent of the fathers said that they felt safe at home, while 2.8 per cent of the mothers did; only 3.1 per cent of the fathers said that they were able to protect their children, while 6.6 per cent of the mothers said that they were able to; 2.8 per cent of the fathers said they were able to protect themselves, while 6.1 per cent of the mothers said that they were able to; and 3.1 per cent of the fathers said that others outside of the home were able to protect him, while 2.8 per cent of the mothers said that this was the case.231 In another study carried out right after the end of Operation Cast Lead on how the 23 days of war had affected the children who were directly exposed to it, it was found that 1.3 per cent of the children had no symptoms of PTSD, 7.2 per cent had mild PTSD symptoms, 29.9 per cent had moderate PTSD symptoms, while 61.5 per cent had severe to very severe PTSD symptoms.232 This study clearly showed that PTSD symptoms were “significantly associated” with trauma exposure. The traumatic events that the children were exposed to included hearing the shelling of the area by artillery (93.9 per cent), hearing the sonic sounds of the jetfighters (93.9 per cent), leaving homes for more safe places (69 per cent), and

230 Gaza Community Mental Health Programme, On the international children’s day and the international day of innocent children victims of aggression, “Save the children of Palestine,” June 3, 2009 231 Gaza Community Mental Health Programme, On the international children’s day and the international day of innocent children victims of aggression, “Save the children of Palestine,” June 3, 2009 232 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 2

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

exposure to burns from bombs (24.5 per cent).233 As a result, 96.3 per cent of the children said that “they were not safe at home”, 96.3 per cent that they “were not able to protect themselves”, 96 per cent that they “were not able to protect family members” and 94.4 per cent that “other people outside of the family were not able to protect them”.234 As many as 50.5 per cent of the children surveyed had lost a close relative, friend or someone else during the war. After the war ended, the population exhibited several different types of psychological symptoms. These symptoms included “excessive fears, panic attacks, amnesia, helplessness, hopelessness, and uncertainty about the current situation and the future in the area”.235 The “witnessing of the killing of a close relative” and the “witnessing of the assassination of people by rockets” were predictors in children of traumatic grief, with the girls and boys responding almost the same. The “psychological reactions to trauma of war” that the children experienced included: identifies event as extreme stressor (86.1 per cent); afraid when thinks about event (64.4 per cent); intrusive images and sounds (63.1 per cent); fear of recurrence after reminders (61.2 per cent).236 Five traumatic events were identified to be “significantly” linked to symptoms of PTSD in children and they were: to be threatened by shooting; being forced to leave one’s home during the war; witnessing the killing of a friend; witnessing the home demolition of a friend’s house; and hearing the killing of a close relative.237 As a result of being in a state of “high alert”, fears and nightmares are examples of initial “acute responses”, while later reactions include symptoms of avoidance.238 This study reflected the same results as most other related studies had done before, however “new traumatic events” had been introduced during this war (Operation Cast Lead) such as being forced to leave one’s home because of the

233 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 2 234 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 2 235 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 3 236 Table 5, Psychological reactions to trauma of war (CPTSD-RI), Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 14 237 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 17 238 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 19

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conflict and the exposure to burns by phosphorus bombs.239 There were no differences in the responses from boys or girls, or in ages, which was different from earlier studies where boys have reported higher levels of traumatization compared to girls. During Operation Cast Lead children and families did not have any safe place to go to, the children could not feel safe, and they did not think that anyone could provide protection to them.240 The grief reactions of children who lost someone close to them during this war have encompassed: having good memories of the lost person (51.35 per cent); feelings that even if this person is gone he or she is still an important part of his or her life (42.9 per cent); feelings of revenge (40.7 per cent); having unpleasant, bad and upsetting thoughts about how the person died which interfere with the enjoyment of good and pleasant memories of this person (25.9 per cent).241 These findings were not the same as found in an earlier study conducted in the south of Gaza where the main symptoms of grief consisted of having pleasant or comforting dreams about the person who died, seeing the dead person, crying when remembering the dead person, and the denial that he had died.242 The continuous occupation, economic, social and cultural hardship, combined with a difficult internal political process has had social and psychological consequences on the whole population, while the disrupted peace process led to a loss of hope, direction and dignity.243 This has resulted in an increase of child labour, and in new forms of social violence such as suicide, honour killings and incest.244 Marwan Diab describes a list of human rights violations that the people in Gaza have been living with under the siege of Gaza and they include “brutal checkpoints and closures, power blackouts, unpredictable access to clean water, major interferences with education, or health care, targeted assassinations, massive home demolitions, ‘genocidal’ destruction of the means to live of an identified group of people by destroying their food sources, and water, blatant land 239 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 17 240 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 17-18 241 Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 13, Table 4. Grief reactions in children due to loss 242 Shaat and Thabet, 2007, in Thabet, A. A., Salloum, A., Tawahina, A.A., El Sarraj, E., Vostanis, P., Trauma, grief, and PTSD in Palestinian children victims of war on Gaza, Sent to author June 2009, p. 18 243 El Sarraj, S., Ibraheem and His Bird, www.gcmhp.net/File_fi les/ibraheeeem.html, accessed June 5, 2009 244 El Sarraj, S., Ibraheem and His Bird, www.gcmhp.net/File_fi les/ibraheeeem.html, accessed June 5, 2009

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

confiscations in the form of settlements, routine brutalities of occupying soldiers, sniper killings, Apache helicopter and F-16 attacks, torture, routine imprisonment, routine humiliations – the voice of a young soldier emanating from a loud speaker instantly intimidates a hundred grown men and women, epidemic levels of malnutrition among children.”245 In this kind of environment people become dispirited and “overwhelmed by waves of discouragement and helplessness”.246 The social network has disintegrated, and politics has become the issue that is most talked about also by the children.247 Clinically feelings of helplessness and frustration have led to especially high degrees of depression and anxiety among the population.248 Among the youth drug addiction has rapidly increased. Different forms of physical, verbal and antisocial behaviour have increased, as has infighting among families, clans and political factions where aggression has turned inward.249 As was noted as a result of the continuous Israeli blockade of the Gaza Strip and because of the trauma of war (Operation Cast Lead) and increased stress, addiction to painkillers and tranquillizers has greatly increased also among teenagers in the Gaza Strip.250 One such painkiller that is being used is Tramadol hydrochloride which is being sold under the name “Tramal” and has become “the drug of choice in the Gaza Strip”, and the Hamas police spokesman, Islam Shahwan, has explained that it has become popular among both male and female high schools students in Gaza.251 Psychiatrist Taysir Diab working at the Gaza Community Mental Health Programme said that “[t]o deal with depression here in Gaza, many take these drugs, especially youths who’ve lost their jobs, who sit at home and don’t have a salary”.252 The medical doctor and pharmacist, Salim, said that as a result of the latest war (Operation Cast Lead) the use of antianxiety drugs and anti-depressants increased significantly, and that “during the war people were tense, afraid, and they lacked the ability to concentrate. … The 245 Diab, M., Human rights violations in Gaza, “A voice from besieged Gaza, www. gcmhp.net/File_fi les/Arti05May2k8.html, accessed June 5, 2009 246 Diab, M., Human rights violations in Gaza, “A voice from besieged Gaza, www. gcmhp.net/File_fi les/Arti05May2k8.html, accessed June 5, 2009 247 El Sarraj, S., Who is to be blamed?, www.gcmhp.net/File_fi les/Women/WHO%20 IS%20TO%20BE%20BLAMED.html, accessed June 5, 2009 248 El Sarraj, S., Who is to be blamed?, www.gcmhp.net/File_fi les/Women/WHO%20 IS%20TO%20BE%20BLAMED.html, accessed June 5, 2009 249 El Sarraj, S., Who is to be blamed?, www.gcmhp.net/File_fi les/Women/WHO%20 IS%20TO%20BE%20BLAMED.html,, accessed June 5, 2009 250 Al-Mughrabi, N., Karakashian, I., Pills that are Gazans’ Little helpers, May 8, 2009, Reuters, www.alertnet.org/thenews/newsdesk/L429399.htm 251 Al-Mughrabi, N., Karakashian, I., Pills that are Gazans’ Little helpers, May 8, 2009, Reuters, www.alertnet.org/thenews/newsdesk/L429399.htm 252 Al-Mughrabi, N., Karakashian, I., Pills that are Gazans’ Little helpers, May 8, 2009, Reuters, www.alertnet.org/thenews/newsdesk/L429399.htm

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situation continued after the war because of the continued state of internal division and the possibility of a renewal of war.”253 This type of drug should not be given without assistance of a medical doctor and a prescription, but since there is not enough trained psychiatrists or psychologists, doctors who do not have adequate training and knowledge of these drugs are prescribing them anyway, and in addition while there is a law that prohibits the selling of these drugs without a prescription, Gaza does not have a control system in place to enforce the law and as a result it is not difficult to get a hold of this type of drug.254 It is important to know that just before Operation Cast Lead between the beginning of 2008 and November 2008, about 101 children were killed because of the conflict.255 Of those, 86 per cent were killed by the Israeli army, and 13 per cent by the Palestinian armed groups. The children killed by the Palestinian armed groups were killed because of the infighting between different Palestinian groups, or from misuse of weapons and explosives.256 This shows that the children live very violent lives, with much exposure to violence that they have no control over. During the summer of 2010, UNRWA’s annual summer camp for the children was set on fire twice by extremist groups, and also anonymous threatening letters including bullets were sent to John Ging, the director for UNRWA, and of his Palestinian staff members two received such letters as well.257 However UNRWA continued providing the summer camp to about 250,000 Palestinian children, with strong support from their parents. Four schoolgirls came to John Ging after the fires and the letters telling him that he should not give in to the extremists, urging him “to show courage. They wanted to show how much they appreciated the summer camp. They were not afraid of the extremists they said, and wanted to continue coming, since it was good for them psychologically, physically and because of gender equality reasons!”258 One reason as to why the extremists attacked the summer camps was because as John Ging says UNRWA has been very successful in its overall work and equality between girls and boys is a big part of that work, and he continues that “[p]eople in Gaza do not like the extremists. We felt even stronger public support after these events. Let us be 253 Al-Mughrabi, N., Karakashian, I., Pills that are Gazans’ Little helpers, May 8, 2009, Reuters, www.alertnet.org/thenews/newsdesk/L429399.htm 254 Eyad El-Sarraj in Al-Mughrabi, N., Karakashian, I., Pills that are Gazans’ Little helpers, May 8, 2009, Reuters, www.alertnet.org/thenews/newsdesk/L429399.htm 255 DCI-Pal, CRC anniversary attests to child rights deterioration in oPt, November 20, 2008, www.dci-pal.org 256 DCI-Pal, CRC anniversary attests to child rights deterioration in oPt, November 20, 2008, www.dci-pal.org 257 Hammargren, B., Kamp mot intolerans i Gaza, Svd, Utrikes, p. 21, October 8, 2010, Translated by the author. 258 John Ging interview in Hammargren, B., Kamp mot intolerans i Gaza, Svd, Utrikes, p. 21, October 8, 2010, Translated by the author.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

crystal clear: a small extremist movement tries to make the Palestinian society more intolerant. But our task is to help the civilized majority, so that it comes through the fight stronger.”259 Further, in Gaza the unemployment rate among youth is about 80 per cent and in this context it is easy for the different groups to buy young followers, and as some Gazan men said “[p]olitical parties are able to attract boys in the upper teens in exchange for a simcard for the mobile. Guess which party has the most money here? Hamas, of course.”260 On 4 May 2011, Fatah and Hamas reached a Reconciliation Agreement in Cairo, Egypt, bringing together a number of agreements already entered into, where they decided to among other things form of a transitional government to prepare for the general elections (legislative, presidential, Palestine National Council) to be held.261 However at the time of writing there has been no movement on this accord. 8.4.

Case Studies

In this section several case studies regarding the particular events that children in armed conflict have experienced in different countries and the psychological and traumatic effects that they suffer from will be examined. 8.4.1.

Psychosocial Effects of War Among Displaced Children in Southern Darfur in Sudan

In a first study that was conducted in Southern Darfur on the psychosocial consequences of the war that broke out in 2003 in Southern Darfur on children 331 internally displaced children in Southern Darfur aged between 6–17 were interviewed from three different IDP camps, the younger children being 6–12 years of age and the older children 13–17 years of age.262 This study makes it clear that the children had been exposed to extreme numbers, levels and types of war experiences. The study identified the most common war atrocities the children had experienced and then examined how these had impacted the psychological well-

259 Hammargren, B., Kamp mot intolerans i Gaza, Svd, Utrikes, p. 21, October 8, 2010, Translated by the author. 260 Hammargren, B., Kamp mot intolerans i Gaza, Svd, Utrikes, p. 21, October 8, 2010, Translated by the author. 261 Thirteen factions signed the agreement, footnote 1 in International Crisis Group, Palestinian Reconciliation: Plus ça change…, 20 July, 2011, Middle East Report No 110, Executive Summary and Recommendations and p. 1, www.crisisgroup.org 262 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253

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being and adjustment of them.263 Included in the study were 43 per cent girls and 57 per cent boys with the average age of 12 years and they had all been displaced from villages in Southern Darfur in Sudan. The children were selected randomly for the study by their school principals in their respective camp from first to seventh grade. With regards to this group of children the definition of age is determined by culture, and therefore the children’s ages were determined by at least one of these four criteria: “grade level, reported age of child by parent, local means of counting the harvest years as remembered by the child, and physical appearance”.264 The children’s most common war experiences included being forced to abandon their homes (98 per cent), home invasion (95 per cent) and being a witness to their homes being burned down (94 per cent).265 The children had been exposed to extreme danger and had experienced extremely high levels of violence. About 90 per cent of the children had been forced to protect themselves from the risk of being raped or killed.266 Seventy-five per cent of the children had witnessed a family member being tortured or they had themselves been tortured, and this included 70.4 per cent of the younger children and 82.4 per cent of the older children.267 Among the children 45.9 per cent had lost a sibling, with 52.8 per cent of the older children and 40.7 per cent of the younger ones.268 Among the children 49.5 per cent had been threatened with being killed, with 52.7 per cent of the boys, 45.8 per cent of the girls, and 42.9 per cent of the younger ones, and 58.5 per cent of the older children. All children exhibited a very high degree of fear of starvation, 77.9 per cent, and the younger children had more fear of starvation than the older ones, 79.4 per cent compared to 76.1 per cent. Also the boys exhibited a higher 263 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253 264 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 232 265 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 234 266 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 234 267 Table 2. War Experiences of Children by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 234 and 236 268 All data in the rest of the paragraph comes from Table 2. War Experiences of Children by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 236

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

degree of fear of starvation than the girls did with 79.7 per cent to 75.5 per cent. These findings show very high levels of distress for all the children and reflect the extreme circumstances the children were living in. The boys and girls experienced the same types of war events, also for instance rape as gender played no particular role in this regard.269 Rape of both boys and girls was widespread, with 14.8 per cent of all children having been raped, with 12.8 per cent of the boys, and 17.4 per cent of the girls, with 13.8 per cent of the younger children and 16.2 per cent of the older children.270 The older children aged 13–17 had encountered more war events than the younger ones aged 6–12 years, as age did matter, and for instance there was a higher risk for the older children to be forced to fight or to hurt or kill a family member, and they had witnessed more incidents of shootings, torture, rape and houses being burned, and more of them had lost a sibling or a parent.271 About 21.5 per cent of all the children had been forced to kill or hurt a family member, of which 24.1 per cent of the boys and 18.1 per cent of the girls.272 As more of the older children had been forced to kill or hurt a family member, 26.1 per cent, a significant number of younger children with 18 per cent had also been forced to commit such atrocities. In addition, 13.9 per cent of the children had been forced to fight, with 16.6 per cent of the boys and 10.4 per cent of the girls, and again the younger children had been forced to participate in the fighting with 11.1 per cent of the younger children and 17.6 per cent of the older children. It was found that 74.9 per cent of the children exhibited PTSD symptoms, and in terms of clinical trauma there were almost no differences between the boys (74.3 per cent) and girls (75.6 per cent).273 The older children showed a somewhat higher degree of trauma symptoms with 78.2 per cent when compared to the younger children with 72.5 per cent. The older children showed “more somatic 269 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 234-235 270 Table 2. War Experiences of Children by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 236 271 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 235 272 All data in this paragraph comes from Table 2. War Experiences of Children by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 236 273 Table 3. Trauma Symptoms by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 237

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responses, more reliving of trauma events, more fear of the event recurring, and feeling isolated from other people”, while the younger children had higher levels of sleep disturbances.274 In the study 16 war experiences were identified and the study showed that a higher number of war experiences resulted in children experiencing higher levels of traumatic reactions, depression and grief symptoms. The war experiences that were most predictive of causing traumatic reactions were as follows, with the strongest listed first: “1) abduction, 2) hiding to protect self; 3) being raped; 4) forced to hurt or kill family members; and 5) seeing someone burned alive”.275 Thirty-eight per cent of the children had clinical symptoms of depression, and while there were no real differences between the younger and older children, the girls exhibited considerably higher levels of depression compared to the boys, with 54.9 per cent of the girls and 25.1 per cent of the boys having symptoms of depression.276 The girls showed more interpersonal problems, ineffectiveness and anhedonia, while the girls and the boys showed the same levels of negative mood and self-esteem.277 The war experiences that were most predictive of depressive symptoms were identified and consisted of: “1) being raped; 2) witnessing others raped; 3) the death of parent/s; 4) being forced to fight; and 5) having to hide to protect oneself”.278 About 20 per cent of the children showed high levels of grief symptoms, and five war experiences were found to be most predicative of total grief symptoms, and they were: “1) abduction; 2) death of one or more parents; 3) seeing homes burned; 4) witness shooting; and 5) witnessing rape”.279 There were no direct gender differences for grief symptoms or regarding the three grief subscales that were being used, traumatic grief, existential grief and positive connection, 274 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 237 275 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Sudan, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 237 276 Table 5. Depression Symptoms by Gender and Age, Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 239 277 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 239 278 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 239 279 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 241

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

but the older children showed much higher levels of grief symptoms compared to the younger ones.280 The study revealed that there was “a direct relationship” between the amount of specific war events the children were exposed to and the occurrence of trauma, depression and grief in them.281 In terms of the relationship concerning depression and war experiences, it was found that it is through the mediation of trauma that this relationship becomes the strongest.282 This was also found to be the case regarding the relationship concerning grief and war experiences in that the strongest relationship between the two is through trauma mediation. The authors argue that their finding should guide future interventions for children in war, in that it is the trauma experiences of the children that need to be focused upon first in any intervention with the purpose of fi rst reducing the trauma in the children so that the grief and depression levels of the children subsequently can be lessened.283 Since the strongest relationship between depression and war experiences and grief and war experiences were found to be mediated through trauma it is an important finding that any intervention would first address the trauma, and not the depression or grief levels which this study showed actually complicates and undermines the understanding of the children’s reactions to the war experiences they have endured. This in turns leads to such interventions becoming less effective and the children not receiving the help they need. While there were no real difference between gender and exposure to war events, a difference between age and the amount of war exposure was found.284 However, a “strong” correlation between how many war events a child had been exposed to and the children’s trauma reactions was found, as 75 per cent of the children showed high levels of symptoms of PTSD, which reflects the context of the on-going war in Darfur which has resulted in children having been exposed to and experiencing a large number of war related events on a continuous

280 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 241 281 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 241 282 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 242-244 283 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 244 284 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 244

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basis which has had a direct effect on their survival according to the authors.285 Another reason for the high levels of PTSD symptoms could be that the society as a whole has been affected by the long-term conflict where many have lost family members and homes and suffer trauma on a continuous basis, and that it is not only the children who have suffered.286 The formerly customary coping mechanisms have become disrupted by the conflict, and as the society has disintegrated because of the constant war, the parents and the other adults are not as able anymore to properly care for the children.287 With regards to the girls showing higher levels of trauma symptoms compared to the boys, one reason for the gender differences, the authors argue, could be that girls more often acknowledge that they have problems and more easily show how they feel than boys do.288 Further, the reason why age did not affect whether a child would develop symptoms or not, the authors argue, could be that the Janjaweed targeted everybody irrespective of age in their attacks on the villages and that the communities and social infrastructure in their entirety have been indiscriminately demolished.289 This has meant for the children that all children no matter the age had been exposed to a high number of war events and basically the same types of events, even as it was found that the older children experienced more events, and that the parents have not been able to protect the youngest children because of these indiscriminate attacks. The children showed high intrusion and avoidance levels, however not hyperarousal, which could be explained by the unrelenting nature of the war and that they were constantly reminded of traumatic events.290 The authors argued that to the children the hyperarousal reactions may have represented a form of adaptation, and as a consequence behaviours such as startled responses, hyper-

285 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 244-245 286 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 244-245 287 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245 288 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245 289 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245 290 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

vigilance and symptoms associated with bodily arousal could have been made into something normal to them.291 Finally it was found that especially separation from family members, having to hide or protect oneself, being raped, being forced to kill or hurt members of the family and seeing someone being burnt strongly affected the prediction of symptoms of trauma.292 That the child’s primary caregivers are no longer present as a consequence of such a separation in an armed conflict means for the child that a fundamental form of protection to alleviate traumatic conditions is gone.293 This is a highly traumatic situation for the child and very difficult for the child to process. Only 38 per cent of the children were found to suffer from depression while 75 per cent of the children had symptoms of trauma, and one reason for this could be that depression as a result of a traumatic war event is many times a delayed response and first becomes noticeable in the long-term.294 An additional explanation could be that the instrument the authors applied was based in Western culture and this became evident when in order for the children to be able to express themselves they did it by telling stories and the use of local idioms and not by “quantitative” expressions like “less than once a month” or “always” as a response to a question.295 Instead, as an example, when the authors intended to ask about how often (frequency) a child cried, one child tried to describe “the ‘depth’ of his tears” by saying that “I cry as much as the rain falls in the rainy season and soaks the fields and as fast as the blood flows in my body”.296 Furthermore, another child responded to the question regarding “how much he cries” that he cried “just like the morning dew”, referring to both how often he cried and how much. 291 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245 292 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 245-246 293 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246 294 Here the authors refer to several studies by Goenjian et al. (1995), Najarian et al. (1996), Terr et al. (1999), Thabet et al. (2004), in Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246 295 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246 296 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246

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As a result of these findings the authors reconfirmed the need for the inclusion of cultural factors in psychosocial interventions for children in conflict zones. These examples show how deeply children feel and that if we want to know how children feel we need not only to ask them about their feelings, but to ask them such questions which accurately reflect them, their experiences and understanding. In this study the girls experienced higher levels of symptoms of depression compared to the boys, but all children still showed “high levels of anhedonia and negative mood” symptoms.297 In terms of the predictors of symptoms of depression, family separation did not strongly predict these symptoms for the children, it was found. Strong predictors of such symptoms were rape, watching someone being raped, the death of one or both parents and hiding to protect oneself.298 In this regard the authors argued that if a child becomes separated from his/her family there is always hope for reunification, and that hope in some ways prevents the child from becoming deeply depressed. However, in the cases of having been raped, seeing someone raped or experiencing the death of one or both parents, these events cannot be made undone and thus cannot be changed and the consequences for the child to cope with are long-term.299 Also, there is a higher risk for symptoms of depression to occur as a result of feelings of helplessness, shame, survivor guilt and hopelessness which a child can have if the child feels that he/she cannot provide protection to his/her family.300 Another factor is that there is much social stigma surrounding rape which often leads to the children not having the permission to talk about what they have experienced.301 This leads to the children not being able to find a way to sort out what they feel, such as anger, and as a result there is an increased risk for symptoms of depression to occur. In terms of grief reactions the children experienced high levels of grief symptoms even if not as high as the levels for trauma and depression, and they

297 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246 298 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 246 299 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 300 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 301 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

showed symptoms of traumatic grief and existential grief.302 The older children had higher levels of grief reactions compared to the younger children, and the reasons for this could be that the older children could more easily put into words their grief, and also because they understood more about death because of their age.303 To understand what death is depends on the stages of development of the children, and their capacity according to age and development to understand the notions of “finality” and “irreversibility” which are abstract concepts.304 For a natural grieving process to take place, a child needs to be able to have a certain tolerance level for thinking of and remembering a loved one who has died, as well as being able “to remember the person as whole”, and tolerating any remorseful and guilty feelings regarding this person, and take in that when an a loved one has died it is something permanent.305 However, there were children in the Southern Darfur study who could not think about their loved ones at all without intrusively re-experiencing the death of the loved one, showing arousal symptoms and reactions of avoidance.306 For these children all thoughts, memories and reminders of the loved one, also the happy ones, became “traumatic memory reminders” triggering all these reactions.307 It was that hard and difficult for these children to even think about their loved ones in any way. Traumatic grief is when the grieving process becomes disrupted because of “ongoing distress reactions caused by the circumstances leading to the death of a significant other”.308 In on-going conflict situations there are many times no time or room to grieve properly, and often it is not possible for family members to conduct a traditional burial ceremony due to the conflict and as such their grieving 302 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 303 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 304 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 305 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 306 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 307 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 308 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248

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process becomes disrupted. For children in these situations, as a result of having seen “traumatic deaths” together with not having been able to mourn properly, there is an increased risk for “abnormal” reactions to grief like traumatic grief to occur.309 Existential grief is when an individual develops a negative belief in the value and meaning of his/her own life as a response to a family member’s death.310 The study found that there was a clear link between the amount of war events that a child had experienced and existential grief symptoms. As a result, for the children exhibiting existential grief symptoms in the study, the higher the number of war events a child had gone through the more dark was the future for this child.311 The study found that the predictors for traumatic grief and existential grief were the same, however not for the predictor “separation from one or more family members”.312 The traumatic grief and existential grief reactions overlap yet they are not the same, where avoidance and “autonomic physical reactions” are examples of traumatic grief reactions, while regarding existential grief reactions it is about how a child defines his/herself following the passing of a loved one and how as a result the child is able to predict his/her future and give meaning to his/ her life.313 The authors argued that this study showed that it is especially important that future psychosocial interventions for children in war situations particularly, but also for any individual who has experienced war, combine elements of “trauma-focused and grief-focused treatment”.314 In addition they argued, consistent with what other studies have found, that interventions on trauma for children should be conducted first before any grief intervention takes place because if “the sensory aspects of PTSD symptoms” are first taken care of, it will be easier for the 309 Smith et al. (2002) in Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 247 310 The authors used Brown and Goodman’s definition of existential death (2005), in Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 311 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 312 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 313 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 314 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

children to deal with the memories of the loved one(s) who has died and thus be able to begin the process of grief.315 Finally the authors emphasized the importance of including a focus on traumatic grief reactions for war-affected children in all clinical interventions so that children in war will get the best help and treatment.316 They gave as an additional example a study done of children in Kenya after the American Embassy bombing in Nairobi in 1998, where it was found that among the Kenyan children studied their grief symptoms continued as long as one year after the bombing and that these symptoms of grief lasted for a more extended period of time compared to their posttraumatic symptoms.317 8.4.2.

Psychosocial Assessment and Psychosocial Intervention for WarAffected Children in Sierra Leone

A psychosocial assessment study was carried out of 315 displaced children in Sierra Leone to assess their mental and emotional health after the RUF invasion of the Sierra Leonean capital Freetown on 6 January 1999, before and after a RapidEd Trauma Healing intervention had taken place that was developed by PLAN International, the UNESCO Institute for Education and the Sierra Leone Ministry of Youth, Education and Sports.318 The purpose of the RapidEd Trauma Healing intervention was two-fold including re-opening the primary schools quickly in order to normalize the lives of the displaced children, and to lessen the children’s psychosocial distress by having them engage in different trauma healing and expression activities.319 A Rapid Education (RapidEd) “School in a Box” was handed out at four displaced camps in Freetown, and the intervention 315

Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 316 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248 317 Morgos, D., Worden, J. W., Gupta, L., Psychosocial effects of war experiences among displaced children in Southern Darfur, Journal of Death and Dying, Volume 56, Number 3/ 2007-2008, p. 229-253, p. 248; See also in the book on the situation for these children years after the terrorist bombing. 318 Reference on this study will be made throughout the section to these two articles: Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, www.reliefweb. int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009; and Gupta L. And Zimmer C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216 319 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 2 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

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consisted of both basic literacy and numeracy skills training and trauma healing and expression training. A recreational kit was also included. The RapidEd Literacy and Numeracy Modules were developed so that they would correspond with the Sierra Leone curriculum, and were designed to help the children reintegrate from the displaced camps into their normal school environment.320 The RapidEd intervention also included a Trauma Healing Module which was developed to lessen the traumatic stress symptoms the children experienced and this was to be done through different structured activities that were based in the local culture, and included story-telling, drawing, writing, talking, drama, dance, music and athletic activities.321 The assessment study was carried out by PLAN International, the UNESCO Institute for Education and the Sierra Leone Ministry of Youth, Education and Sports between October 1999 and January 2000, which was about 9–12 months after the RUF invasion. The children were between 8–17 years of age and were selected from four internally displaced camps in Freetown, the Trade Center and Grafton camps. There were two reasons as to why the assessment study was carried out which included assessing what kind of war exposures the children had been exposed to and how severe the children’s psychological reactions had been, as well as to evaluate whether the RapidEd Trauma Healing intervention had affected the children’s intrusive recollections and arousal symptoms.322 All of the children had been exposed to a very high number of violent events and violence during the invasion as 98.7 per cent responded that they had seen or witnessed violence during the fighting.323 Basically all the children (99.7 per cent) had seen the most violence after the coup in May 1997, and 89 per cent said that they had seen someone either killed or injured during the most recent fighting. About 80 per cent of the children had a family member who had died in the last two years from the fighting, and during the RUF invasion in January 1999 320 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 2 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 321 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 2 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 322 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 2 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 323 Table 2, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 9 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

in Freetown, 43.7 per cent of the children had a mother or a father who had been killed during the fighting. About 20 per cent of the children had a sibling that had been killed during the fighting, and 16.8 per cent of the children had lost a grandparent and nearly 30 per cent had lost other relatives.324 The children had witnessed very high levels of violent acts during the invasion with 54 per cent having seen a family member killed, 89 per cent having seen someone killed or injured by weapons, 74.5 per cent having seen someone killed or injured by machetes, 68 per cent having seen someone burned to death, 98.7 per cent having seen houses that had been destroyed, more than 58 per cent having seen someone raped or sexually assaulted, 95.5 per cent having seen dead bodies or body parts and more than 66 per cent having seen someone being tortured.325 Almost all, 99.7 per cent, had heard someone being killed or injured, 90 per cent had heard someone screaming for help, 85 per cent had heard a family member being threatened and almost everybody had heard gunfire, bombings or shellings. About 40 per cent of the children had been forced to participate in the killing or maiming of other people during the invasion, and about 63 per cent had a close family member who had been abducted.326 Almost all the children had thought that they would die during the invasion and 99 per cent of the children had to hide in order to protect themselves for periods of between one to four weeks on average. With regards to PTSD, children and adolescents exhibit more different types of PTSD symptoms than adults do.327 A greater understanding has developed over the years as to why it is important to hear the children’s perspective on and their feelings about their traumatic experiences during war, as it has become understood that adult caregivers most often “underestimate the objective effects of traumatic experiences on children”.328 There are three types of reactions that children and adults alike most commonly exhibit and they are “intrusive recol324 Table 2, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 9 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 325 Table 2, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 9 of 12, 326 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 327 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12 www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 328 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12

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lections of the traumatic event; physical and emotional avoidance of the event or reminders of it; and increased physiological arousal”.329 In this study intrusive recollections of events were very common among the children surveyed, as 95 per cent of the children said that they thought about the event sometimes or often when they did not want to, and about 71 per cent had recurrent pictures of the worst events popping up.330 In addition, most of the children sometimes or often experienced waves of strong feelings about the event, as well as that physical reminders in their environment would trigger thoughts about the worst event. About 97 per cent of the children sometimes or often avoided things that would remind them of an event, and other avoidance symptoms included that 92 per cent of the children tried not to talk or think about the worst event that they had experienced during the war. The increased physiological symptoms of arousal that the majority of the children exhibited were irritability, excessive startle reactions, hypervigilence, and bodily reactions including sweating or trembling when a child was reminded of a traumatic event. About 64 per cent of the children had sleep disturbances, 80 per cent had difficulty concentrating at school and 72 per cent had bad dreams and/or nightmares about the event and more than 75 per cent worried that they would not live until adulthood.331 The study revealed that the children had been exposed to an average of 25 war-related events, between eight to 34 experiences, and there were no significant gender differences regarding the number of war-related exposures.332 The trauma healing part of the RapidEd intervention was conducted during a four week long period twice a week and the structured trauma healing activities were aimed at lessening the emotional distress levels the children had as well as their post-traumatic stress reactions like difficulty concentrating, nightmares, flashbacks and hyper-vigilance as they tend to get in the way of the learning abili-

www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 329 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12 www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 330 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 331 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 5 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 332 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, www.reliefweb. int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

ties of the child.333 The organizers used these techniques to help the children participate in the trauma healing activities:334 (a) (b) (c) (d)

providing a safe environment to share their war experiences; providing accurate information about the war to clarify misunderstandings and correct magical thinking; normalising children’s reactions to reassure them that they are ‘not crazy’; rekindling a sense of optimism/hope about their future by linking some of their positive memories before the war with their present life and future aspirations.

The “structured trauma healing activities” consisted of having the children share their war-related stories with each other in pairs or small groups, to draw pictures of one of their worst memories, to share their drawings in small groups with the other children, to write essays about their experiences, to participate in roleplays, to sing or perform traditional dances and to play musical instruments.335 Unstructured recreational activities (such as jumping rope and playing football) were planned into the schedule in order to help the children release tension in an enjoyable manner, as well as that this was a way to let the children disengage for a while from the memories, thoughts and feelings that caused them distress.336 After the children had gone through the trauma healing activities for four weeks they showed a significant decline of intrusion and arousal symptoms, however the avoidance symptoms showed a small increase.337 The authors argued that one reason as to why the intrusion levels had decreased could be that particularly the structured drawing and writing exercises were effective at reducing those symptoms, and that the arousal symptoms were reduced because the recreational activities were especially effective at reducing those.338 After the RapidEd trauma healing intervention the frequency of the intrusions the children had experienced had been reduced by 63 per cent for the chil333 334 335 336 337

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Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 213 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 213 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 213 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 213 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 6 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216

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dren who had sometimes or often had pictures in their minds of the worst event before the intervention, and for the children who had difficulties concentrating in school the frequency of the arousal symptoms had been reduced from 80 per cent pre-test to 9.9 per cent after the intervention.339 After the trauma healing intervention 73.4 per cent of the children said that they felt better and 22.3 per cent said that they felt much better than before.340 Roughly 96 per cent of the children had a significant reduction of their concentration problems, their sleep disturbances, their bad dreams and nightmares, as well as of their intrusive images. More specifically there was a 49 per cent reduction of sleep disturbances, a 47 per cent reduction of irritability, a 29 per cent reduction of startle reactions and a 38 per cent reduction of the frequency of bad dreams/nightmares.341 After the intervention the children reported a 33 per cent reduction of their fear of not being able to live until they became adults. The boys and girls all showed almost similar decreased levels of intrusion and arousal, which was the case within all age groups and the time period these children had spent in their camps or their living situation did not influence the results.342 However, the girls showed a somewhat higher elevated level of concentration difficulties than the boys did, while the boys showed a somewhat higher level of bodily arousal symptoms.343 Among the children, 91.3 per cent reported that their strongest feeling during the war was fear and 8.7 per cent said sadness.344 However, after the RapidEd trauma healing intervention 47.9 per cent of the children reported that fear was their strongest feeling, while 51.1 per cent reported that sadness was their strongest feeling. 62.7 per cent said that they felt safe now after the intervention and as many as 73.2 per cent felt hopeful about the future, however at the same time 97.8 per cent of the children said that they still worried about what would happen to them and their families in the future. While the Lomé Peace Accord had been signed in July 1999 and many of the rebels had been demobilized, the children 339 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 214 340 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 214 341 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 6 of 12, 342 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 214 343 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 6 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 344 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

and their families still lived in camps, their losses had been many and they had lived through much uncertainty which might be some of the reasons behind why the children worried so much about the future. Almost half of the children, 46.7 per cent, reported that they trusted adults less at the time of the interview than they did before the fighting began.345 A majority though, 57.5 per cent, believed in a justice system where the perpetrators would be punished. Maybe they had picked up on the discussions of having a criminal tribunal for Sierra Leone where the main perpetrators of the war would be prosecuted. Furthermore, anger was still prevalent as 30.4 per cent of the children still had feelings of wanting to take revenge on the individuals who had injured or killed their family members.346 The children were asked what they wanted to do when they grow up and wanting to become a soldier was listed as a choice. However very few of the children wanted to participate in any further war as this choice was the least desired occupation with 0.3 per cent of the children wanting to become a soldier.347 The most popular choice of occupation was trader with 16.5 per cent, then doctor 13.3 per cent, nurse 12.1 per cent, teacher 10.8 per cent, driver 10.5 per cent, seamstress 10.2 per cent, business 5 per cent, police 3.5 per cent, pilot 2 per cent, carpenter 1.9 per cent, soldier 0.3 per cent and other 14.4 per cent.348 The children were also asked what they wanted to have the most at that moment, and they overwhelmingly responded education with 64.1 per cent, 22.2 per cent said peace, 7 per cent money, 5.4 per cent food and other 1.3 per cent. Among the children, 51.5 per cent said that they felt relief while drawing pictures, talking or writing about their memories and feelings, while 36.4 per cent felt sadness.349 Only 0.7 per cent said that they had felt no feelings at all when par345 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 346 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 347 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 348 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leonep. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 349 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 6 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

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ticipating in these activities. This intervention showed that it is possible to gain a significant reduction of intrusion and arousal symptoms that interfere with learning by using an integrated approach of both trauma healing activities and basic education.350 As was noted this is a way to help restore the children’s sense of optimism for the future. With regards to the small elevated level of avoidance that the results showed, the authors argued that this might reflect acute post-conflict environments in general as studies on children from the genocide in Rwanda and the takeover of Kabul by the Taliban in Afghanistan also showed an increase of their cognitive and behavioural avoidance scores.351 In these cases for the short-term the elevated avoidance reactions function as “adaptive defence mechanisms” for the children, making it possible for the children to not become overwhelmed while dealing with the post-conflict situation.352 The children in Sierra Leone were at the time of the intervention reminded daily about the RUF invasion with the rebels returning from the bush to get demobilized and disarmed, and they lived in a postconflict environment with soldiers from ECOMOG and UN peace-keepers, with much destruction of buildings and infrastructure and seeing many people who had been mutilated and injured during the war.353 On the other hand, the authors argued, it is viewed as maladaptive to deny and avoid traumatic memories for a longer period of time, and post-traumatic stress disorder can as a consequence arise.354 Gupta added to the findings that while this study showed that an intervention such as the RapidEd can have positive effects on reducing traumatic stress symptoms among children having been exposed to many different war experiences, other mediating variables and/or potential stressors can also have an impact on the children’s levels of traumatic stress symptoms (and not only exposure variables) and coping mechanisms.355 These include poverty, availability of social 350 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 214 351 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 215 352 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 215 353 Table 6, Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 10 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 354 Gupta, L., Zimmer, C., Psychosocial intervention for war-affected children in Sierra Leone, the British Journal of Psychiatry (2008) 192, 212-216, p. 215 355 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 8 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

support, housing, coping style, personal coping skills and previous exposure to traumatic events.356 In addition, it was noted, the children participating in the RapidEd intervention were all displaced children living in camps in Freetown, and the children who had not become displaced might have shown different results. The RapidEd intervention, which was developed specifically for the postemergency setting of Sierra Leone together with PLAN, UIE and the Sierra Leone Ministry of Education, and its combination of education and psychosocial intervention was intended to encompass a holistic approach as envisioned by Article 39 of the UN Convention of the Rights of the Child, which specifically states that “states parties should undertake all appropriate measures to promote physical and psychological recovery and social reintegration of child victims of armed conflict”.357 8.4.2.1.

A Response to Psychosocial Intervention for War-Affected Children in Sierra Leone as It Relates to Sri Lanka

Many children and their families were exposed to war related trauma during the long-term armed conflict in Sri Lanka both directly and indirectly, including from suicide bombings and claymore mine explosions.358 There were schools in Sri Lanka that put up photos on the walls of their students who have died as a consequence of the war, to help facilitate the children’s process of bereavement, as well as to help them deal with their anger and teach them how to “combat” terrorism.359 However, these photos also served to remind the children of the traumatic events. As Professor Kuruppuarachhi and Dr. Hapangama argued, it is important to acknowledge that children as a consequence of war might suffer from PTSD symptoms and that children also exhibit different types of PTSD

356 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 8 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 357 Gupta, L., Psychosocial assessment of displaced children exposed to war related violence in Sierra Leone, 25 February, 2000, Freetown, Sierra Leone, p. 8 of 12, www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/615fb4a419cba540c125691a00394..., 7/17/2009 358 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 359 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009

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symptoms.360 In addition, they have pointed out the need to acknowledge the consequences that the repetition of war events might have on children, and the long-term effects of such consequences. They underline that children many times are also indirectly repeatedly exposed to war related events through media, like television news coverage of different combats, or footage of the sound of gunfire, the screaming of people who have been injured, and images of mutilated bodies.361 In this context, new traumatic events can reactivate earlier instances of depressive illnesses or PTSD, the authors argue. They referred to the case of a nine year old boy from Gampaha in Sri Lanka who Professor Kuruppuarachchi had treated and who after having watched a television news broadcast of a suicide bomber’s assassination attempt of a politician had become deeply distressed.362 In the TV footage he had seen dead bodies, the suicide bomber’s body that had been decapitated and injured people who had been brought to the hospital.363 While watching the broadcast, the boy had become “extremely fearful”, began to cry and ran out of the room asking his parents to turn off the TV. Afterwards he was not able to sleep, and clung to his mother saying that he saw those images over and over again. After that day he did not want to be alone, he even needed a parent to come with him to the bathroom. He remained extremely fearful, and slept poorly and had many fearful dreams. He no longer wanted to watch television, and avoided being in the room when it was turned on. Also, his performance in school suffered and he who used to like to draw stopped engaging in his hobbies. He usually was very outgoing and had many friends, but began to withdraw. As it was found out during examination he had preoccupying thoughts that a bomb would explode next to his house or school or when he was travelling.364 He said that every time he watched television intrusive images of the bomb explosion came to his mind, and he could no longer concentrate as well in school. He had not been directly exposed to the bomb blast, only through television but he 360 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 361 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 362 See case study in Kuruppuarachchi, K.A.L.A., William SS, Gadambanathan, T., Case Report, Post-traumatic stress disorder after watching violent scenes on television, Ceylon Medical Journal, Vol. 45, No. 4, December 2000 363 Kuruppuarachchi, K.A.L.A., William SS, Gadambanathan, T., Case Report, Posttraumatic stress disorder after watching violent scenes on television, Ceylon Medical Journal, Vol. 45, No. 4, December 2000 364 Kuruppuarachchi, K.A.L.A., William SS, Gadambanathan, T., Case Report, Posttraumatic stress disorder after watching violent scenes on television, Ceylon Medical Journal, Vol. 45, No. 4, December 2000

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

had become traumatized by this TV broadcast and got treatment and became much better. The authors importantly point out that the broadcast and print media show such events with a level of insensitivity and without real reflection on what consequences such broadcasts can have on people, and especially on children.365 As was noted, and many people can contest to, also elderly people may have memories triggered by watching violent scenes on television and the previous trauma resurfaces again. The coping strategies and clinical presentation of children are not fully the same as they are for adults, as children do not have the maturity enough to have a cognitive understanding of “the concepts and consequences of war related trauma”.366 In addition, children have several other vulnerability factors that contribute to developing psychiatric disturbances. It is essential to take into account that societies themselves like Sri Lanka encompass protective factors like good family support, as well as importantly the society itself is to a certain extent flexible enough in being able to handle its losses.367 After many years of war, the people and the society have had to adapt to the shifting circumstances and as a result become more capable to handle adversity. The mediating and moderating factors are influenced by culture and religion and importantly can change the outcome of a trauma.368 As a result, Professor Kuruppuarachchi and Dr. Hapangama mean that in any psychosocial intervention family and community resources should be part of the planning, and school teachers, parents and clergy men should be included, and those cultural factors that are relevant need to be acknowledged 365 Kuruppuarachchi, K.A.L.A., William SS, Gadambanathan, T., Case Report, Posttraumatic stress disorder after watching violent scenes on television, Ceylon Medical Journal, Vol. 45, No. 4, December 2000; While for instance in USA after 11 September 2001 and in Israel, the print and broadcast media have become much more aware of the traumatic effects broadcasting over and over again footages of a terrorist act can have on people, it is still focused on not to give the terrorists too much coverage and attention. Most print and television media broadcast daily sensational footage of dead and injured people in war and from natural disasters without giving much thought to the consequences especially for the children arguing that this is the responsibility of the parents. 366 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 367 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 368 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009

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when planning psychosocial interventions of children who have become traumatized by war.369 As research from Sri Lanka indicates it is not only individuals that possess resilience, but also societies themselves, and the resilience in a society itself may have the effect that children are being shown that adversity is not the end of the world, that life goes on, as they are being shown that their families and communities are able to handle adversity. 8.4.3.

Psychological Disturbances of War-Traumatized Children From Different Foster and Family Settings in Bosnia-Hercegovina Seven Years After the 1992–1995 War / Caring for War Orphans

A 2012 study was conducted of children seven years after the end of the war that went on from 1992–1995 in Bosnia-Hercegovina in order to examine the psychological health of war traumatized children.370 Elementary school children aged 12.7-/+1.8 years were selected from four groups of children: children who lived in a governmental orphanage, in an NGO orphanage (SOS Children’s Village), children who had lost one parent and lived with the surviving parent and children who lived with both parents. They were examined in order to determine the presence of war trauma, posttraumatic stress disorder (PTSD) and depression. During the war, 48.4 per cent of these children had become displaced. The findings of the study showed that children who had lost one parent and lived with the surviving parent showed a higher prevalence of PTSD than children who lived in the NGO orphanage or who were living with both parents.371 Among the children 22.6 per cent showed symptoms of depression, and there were no significant differences between the different groups of children. There were no differences between boys and girls in terms of who showed symptoms of PTSD or depression. There was a higher prevalence of PTSD and depression among the children that had lost one parent, while among the children who had lost both parents the PTSD prevalence was higher, however not for depression. The study found that all the children had experienced war trauma, which had resulted in psychological consequences for many of them still seven years after the end of the war and that during the war they had suffered from the same 369 Kuruppuarachchi, K.A.L.A., Hapangama, A., A response to psychosocial intervention for war-affected children in Sierra Leone, Faculty of Medicine, University of Kelaniya, Ragama, Sri Lanka, 22 May, 2008, http://bjp.rcpsych.org/cgi/eletters/192/3/212, accessed 7/17/2009 370 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94 371 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 85

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

fears.372 However, the children from the NGO orphanage had experienced the most war traumatic events, such as having to leave their homes due to the war (89.6 per cent), losing a family member/s in the war (97.9 per cent), the mother was killed in the war (52.1 per cent), the father was killed in the war (89.6 per cent), one grandfather was killed (47.9 per cent), a cousin was killed (52.1 per cent), a close friend was killed (45.8 per cent), a family member was wounded (64.6 per cent).373 These children personally experienced during the war shooting and firing near them (58.3 per cent), sniper shots (25 per cent), the wounding of other/s near them (54.2 per cent), the killing of other/s in the war (48 per cent), being in a situation they could be killed in (27.1 per cent), lack of food and water (35.4 per cent). As a result of these events these children felt during the war: “I was afraid of sniper shots (27.8 per cent), I was afraid of air bombarding (52.1 per cent), I was afraid of shelling (62.5 per cent), I was afraid of possible rape (10.4 per cent), I was afraid of starving (37.5 per cent), I was afraid of coldness and freezing (43.8 per cent) and I was afraid of losing my family (12.5 per cent).”374 Keeping in mind that this study was conducted seven years after the war, the findings of the study found that the children in the NGO orphanage experienced the highest rate of PTSD symptoms of all the groups, however the children who lost one parent were the second group that experienced the highest rate of PTSD.375 The PTSD symptoms surveyed were identification of events as extremely stressful; disturbing to think about traumatic events; fear of repeating the trauma; fear when thinking about the events; avoidance of reminders; being easily startled; avoidance of feelings; intrusive thoughts; bad dreams; sleeping disturbances; intrusive images and sounds; loss of interest in meaningful activities; concentration difficulties; alienation (interpersonal distance); learning ability influenced by thoughts and experienced events; and feelings of guilt.376 There were 372 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 85 and 89 373 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 89 374 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 89 375 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 89 376 Table 2, Frequency of posttraumatic stress disorder (PTSD) symptoms in 186 elementary school children from different foster and family settings in Bosnia and Hercegovina, 7 years after the 1992-1995 war, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 90

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no significant differences between boys and girls either with regards to PTSD symptoms or depression. With regards to depression, the children in the NGO orphanage showed the highest rate of depression, with the children from the governmental orphanage coming next and then the group of children who lost one parent, however there were no significant differences.377 The children living with both parents had the lowest level of depression, and this was considerably less compared to the children in the NGO orphanage. While there was not a large difference between the rate of depression between the groups, the children showed more differences regarding specific depressive symptoms such as negative mood, interpersonal problems, ineffectiveness, anhedonia, and negative self-esteem.378 The children from the NGO orphanage experienced higher levels of negative mood, anhedonia and negative self-esteem than the other children. Many children from all the groups had interpersonal problems, and girls had a higher level of interpersonal problems than boys had. In addition, the girls who had lost one parent or who lived with both parents showed significantly higher levels of interpersonal problems than boys in the same groups.379 However, the boys and girls showed no differences with regard to ineffectiveness, anhedonia, negative self-esteem and depression.380 The children from the two orphanages showed higher levels of negative self-esteem than the children who lived with two parents. However, the children who lived with only one parent showed the highest degree of negative self-esteem. Furthermore, the children from the NGO orphanage showed a higher degree of having suicidal thoughts but would not commit suicide, while the children from both orphanages showed a considerably higher level of suicidal thoughts than the children living with both parents.

377 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 90 378 Table 3. Prevalence of depressive symptoms, 186 elementary school children from different foster and family settings in Bosnia and Hercegovina, 7 years after the 1992-1995 war, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 90-91 379 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 90 380 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 91

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

The children from the NGO orphanage showed the highest rate of PTSD and depression as they were the most traumatized of all the children in the study.381 These children had experienced “the highest rate of loss of one or both parents and forced leaving of family setting with no ability to return” to these family units.382 The children from the two orphanages had the highest levels of “suicidal thoughts”. During the war from 1992–1995 in Bosnia-Hercegovina, about 25 to 30 per cent of the Bosnian refugee children lost their fathers.383 In this study more than half of the children had lost a parent, with most coming from the NGO orphanage. The authors of this study mean that the trauma of losing a parent taken together with having experienced other types of trauma is the explanation as to why these children experienced such a high degree of serious psychological disorders.384 They also argue that since the level of PTSD between the children from the governmental orphanage and the children who lived with one or both parents did not differ much, the reason could be that the children from the governmental orphanage “had more interpersonal relationships” and more male caregivers. Having more interpersonal relationships and male caregivers has been shown to contribute to having a protective role to play in helping to prevent psychopathological consequences from serious trauma.385 In addition, importantly, the other family members had also experienced war and were most likely traumatized as well and therefore had not been able to sufficiently care for the child. For the children living with one parent this study showed a very high degree of PTSD symptoms and the reason for this could be, as the authors explain, that the children lived in “vulnerable families” where also the family members were grieving the loss of member(s) of the family and were in an on-going mourning

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Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 91-92 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92

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process.386 Since the surviving parent and other family members also could be suffering from PTSD and depression, they might not have been able to establish a protective enough environment in which the child could grow and develop.387 In this context the authors noted that children who live with parents who are depressed are known to be “at a higher risk of psychopathology and other difficulties”. Other factors that exacerbate the psychological and psychosocial situation for the children living with only one parent are a continuous dire socio-economic situation and the interruption of “stability and cohesiveness of emotional relations” in their families, especially in situations where refugee families are unable to return to the lives they enjoyed prior to the war because of the loss of a family member.388 Resilience, as the authors said, is developed in a child through having a positive relationship with the parents and the loss of a parent especially through war interrupts this process. While it has been found that psychological distress in children can be predicted by a child having been exposed to natural disasters, or physical or sexual abuse, it is also argued here, importantly, that such distress can be predicted by the child having been exposed to severe loss and lack of care.389 With regards to the symptoms of depression, the children who had lost one parent compared with the children who had lost no parent did not show much difference between them, which indicates the importance of having a parent present in a child’s life.390 The high rates of co-morbidity of PTSD and depression shown by the children in especially the NGO orphanage reflect that both social isolation and a history of personal injury contribute to PTSD, and that children with these kind of experiences need not only material support. In this context the authors argue that when it comes to resettling unaccompanied minors in BosniaHercegovina, the authorities need to take into account that “children with trau-

386 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 387 Table 1, Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 388 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 389 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92 390 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 92

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

matic symptoms” might have specific needs based on their experiences during the war.391 When it comes to having lost a parent or both parents during early childhood and such an event’s relationship with long-term psychological problems, it appears that the disruptions and chronic stresses a traumatic event gives rise to are the most important factors contributing to such problems, and not the traumatic event itself.392 It has been shown that if a child after a parent’s or both parents’ death continues to have warm personal relationships with an adult or with a coherent community of adults, long-term psychological problems can be prevented. In addition, studies have shown that adult orphans are very good at and capable of adapting to long-term life changes.393 The authors concluded that while they did not have much information about the children’s lives before the war, and they did not know for sure if the PTSD and depression symptoms improved or worsened after the war, in combination with the fact that also different experiences in early childhood might have explained some of the differences of symptoms between the children, the findings of the study could still be used in order to develop appropriate care for especially the war orphans in not only Bosnia Herzegovina but also in other post-conflict countries which have to deal with finding the right care for the children who have become orphans because of war.394 They also emphasized in the study that during the war that it was a matter of practicality due to how the conflict was being conducted of where orphaned children or children who had become separated from their families could be taken care of and housed and that later these children were placed in orphanages, a relative’s family or reunited with their families.395 In this context they noted that 1,219 children became orphaned as a result of the Srebrenica massacre on 11 July 1995 as they lost both parents.396 The Tuzla Cantonal Center for Orphans 391

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Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 93 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 93 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 93 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 93 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 86 Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family

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cared first for the children (the Center was open from 1993–2001), and after some time these children moved in with relatives. They also argued that in war-torn countries, like Bosnia-Hercegovina, the generalization that institutional care for children should be avoided becomes “irrelevant” in a situation where there is a large number of unaccompanied children and orphans, as well as where it has not been culturally accepted to use foster families, and therefore institutional care has been the only available alternative as it was in Bosnia-Hercegovina before the war.397 However, at the same time the government of Bosnia-Hercegovina is today working on finding alternatives to institutional care for orphaned children. 8.4.4.

Afghanistan – Violence as an Influential Factor in the Emotional Development of Children

UNICEF carried out the first study on the effects of the war on children in Afghanistan in 1997 together with the Ministry of Public Health of Afghanistan, at a point when the war had been going on for the 19th year.398 The study focused on the children and youth in the age group between 8–18 years, and 310 children and youth were selected from an orphanage and the community in Kabul.399 The participants were 50 per cent boys and 50 per cent girls and female research assistants conducted the interviews with the girls in accordance with the Taliban’s gender regulations. The continuous fighting going on in Kabul had led a situation where in the four years prior to the study 80 per cent of the girls and boys had moved 3.2 times on average.400 Of the children about 23 per cent had finished 7–12 years of schooling, of which 58 per cent had gone to primary school for four years only, while 19 per cent of the children had not received any formal education at all. The children had been exposed to a very high level of different types of violence which included shelling, rocketing, bombing, gunfire, massacres, land-

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settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 86: It had not been possible to establish how many children that lost one parent in the massacre, however the government orphanage and the SOS Children’s Village surveyed in this study took care of a number of them. Hasanovic, M., Sinanovic, O., Selimbasic, Z., Pajevic, I., Avdibegovic, E., Psychological disturbances of war-traumatized children from different foster and family settings in Bosnia and Hercegovina, Croat Med J, 2006, Feb; 47(1): 85-94, p. 86 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34; and UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm; Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

mines, torture and the destruction of homes.401 The findings showed that nearly all the children had witnessed acts of violence (95 per cent), two-thirds of the children had witnessed people being killed by rockets and seen dead bodies or body parts, and about half of the children had seen people being injured or killed by bombs, guns or landmines.402 It was found that when the heaviest fighting took place in Kabul during 1993–1994, about 82 per cent of the children interviewed had remained in the city, and that was when most damage to Kabul and the highest degree of violence occurred.403 It was also found that 15 per cent of the children had during 1992–1996 for four years in a row been a witness to violence. Further between 1992 and 1996, 72 per cent of the children had lost a family member, of which 41 per cent had lost a parent, 25 per cent a sibling, and 65 per cent a relative.404 In addition, it was found that over one-third of the children had seen the death of a member of the family, about 63 per cent had seen the rocketing or shelling of their house, and 48 per cent of the children had seen more than one person killed in a single occurrence. The children lived with a very high degree of fear as about 90 per cent of them thought that they would die during the conflict, while at the same time the number of them having been threatened with death was 17 per cent.405 About three-fourths of the children had no expectations of living until adulthood.406 About 93 per cent of the children had been forced to hide when fighting took place, and the fighting had led to about one-third becoming separated from their families.407 When the conflict was occurring about 34 per cent of the children had assisted in the carrying of a wounded and/or dead relative, neighbour or friend. This study found that even after one to four years after the children had been exposed to the violence in Kabul the majority of them suffered from intrusion

401 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 402 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm; Dr. Leila Gupta was the author of the study, and Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 403 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 404 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 405 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 406 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm; 407 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32

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symptoms.408 Ninety per cent of the children said that they thought about the violent events they had experienced sometimes or often, also “when they did not want to”.409 Further, 87 per cent of the children often or sometimes had images popping up in their minds of the worst experience that they had gone through. They also suffered from symptoms of avoidance with 78 per cent responding that they sometimes or often avoided anything that would remind them of an event, and with two-thirds making an effort not to think about such an event and 57 per cent sought to not talk about such an event. Most of the children also suffered from “high levels of arousal symptoms” if they became reminded of a violent episode, consisting of hypervigilance, anxiety, and somatic reactions that included shaking, sweating or rapid heart rate.410 It was also hard for over 50 per cent of the children to fall or stay asleep, and most had nightmares, anxiety and concentration problems which in turn had led to appetite problems and interfered with their ability to play.411 Seventy-three per cent of the children did not think that they would live until adulthood. Grief was very much part of the daily life of the children as reflected in the findings for the children who had lost a family member(s), where 87 per cent of the children often or always felt upset about the death of a family member, and the average bereavement period with regards to the death of a parent, sibling or another close relative being up to 2.7–3.2 years.412 Seventy-nine per cent of the children were thinking about their loved one(s) to the extent that it was difficult for them to do things, and over two-thirds of the children missed deceased family member(s) often. The children also “often or always felt shocked or numb” over their family member(s)’ death (close to 50 per cent), and 76 per cent were feeling angry about the death(s). Dr. Gupta, who was the author of the study, underlined the chronic nature of the trauma the children experienced and meant that the psychological impact of the war on the children was not short-lived.413 She continued that “[v]iolence has

408 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 409 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 410 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 32 411 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34; and UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm 412 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33 413 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

been a hugely influential factor in the emotional development of these children and has dramatically affected their views of themselves and of their future”.414 The children worried about the future for them and their families, 66 per cent of the children said that they were still afraid, and nearly 50 per cent explained that their strongest feeling was fear.415 The continuous fighting had impacted how the children viewed the adults, as 76 per cent of them had less trust in adults after the fighting compared to prior to it. As a result of the study, UNICEF developed (together with the Ministry of Public Health, the Tahia Maskan orphanage, the Afghan Mental Health Institute and three local NGOs) community-based intervention strategies on mental health for children, where Article 39 of the UNCRC was used as the guiding principle as it stipulates the need to “promote physical and psychological recovery and social reintegration of child victims of conflict”.416 The rationale behind the development of the strategies was to:417 –

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provide an opportunity for war-affected children and youth to address their traumas/grief in a safe environment in the presence of a trusted adult to prevent and/or reduce long-term morbidity; strengthen local capacity among Afghan mental health professionals, teachers, caregivers, health workers, and community/religious leaders by conducting two-week intensive ‘training of trainers’ seminars on: basic grief and trauma theory; identification of trauma symptoms and normal grief reactions at different ages; simple methods of trauma alleviation and grief recovery; facilitating referrals to qualified mental health professionals for high-risk individuals/ families who did not respond to simple methods of expression taught in the seminars; develop and implement a mass media campaign using the BBC New Home New Life radio series to broadcast information about basic trauma and grief theory in the local language and to normalise the presence of traumatic stress and grief reactions among the general population exposed to chronic warfare (ie explain that intrusive images, fear of militia, jumpiness etc are normal reactions to an abnormal event); use culturally appropriate methods of expression such as prayer, drama, storytelling, writing essays, drawing, singing, and dancing to help children cope with their bad memories and painful feelings.

414 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm 415 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm 416 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33 417 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33

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The local Afghan mental health workers that were part of this training programme would in turn train additional care givers to help the children express themselves such as engaging in artwork, writing and role playing.418 The children’s families, care givers and communities needed help to deal with their traumatic experiences, as the adults had also been traumatized after a long conflict with many losses. As Dr. Gupta explained “creating a safe environment for children to express themselves with a trusted adult is the most important intervention to alleviate the long term psychological effects of war related violence on children”.419 Several of the children at the orphanage, and the children living in the community (these children came to a drop-in centre in Kabul), took part in some of these trauma healing techniques.420 These methods consisted of drawing, writing essays, and the telling of stories about the war experiences. While a formal evaluation of the training could not take place due to the evacuation of the trainers in 1998, it was still reported that those children that took part in the training had less intrusion and arousal symptoms.421 It is important to take into consideration the context of the violence, the unsafe political situation and extreme poverty in which the children lived together with their continuous exposure to violence, their personal losses and perceived threats to their lives, which had led them to experience every day “intrusive images, avoidance behaviours, somatic symptoms associated with PTSD, and intense grief reactions”.422 These reactions were made worse by them taking place in an on-going unsafe situation. The Afghan families’ and communities’ traumatic war experiences over a two decade long period could have led to the dysfunctioning of “traditional coping mechanisms” and weakening of “customary social support systems”, with the effect that the children had become “more vulnerable to emotional neglect by their bereaved and/or traumatised caregivers”.423 Community ties had been cut and the social fabric destroyed by the long period of war, and the disintegration

418 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm; Dr. Leila Gupta was the author of the study. 419 UNICEF, Afghan children experience severe trauma, Information Newsline, 7 October 1997, www.unicef.org/newsline/97pr43.htm; Dr. Leila Gupta was the author of the study. 420 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33 421 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33 422 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 33-34 423 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 34

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

of community ties as a consequence of war risks make children more susceptible to becoming adversely emotionally affected during war.424 As noted by Gupta, making reference to Eisenbruch (1988), simply because children possess resiliency does not necessarily lead to an automatic decrease of their levels of distress during war.425 As she continues, if the resiliency of children and youth is used in a way that would actually deny the existence of post-traumatic stress and difficult grief reactions this might lead to governmental leaders not taking responsibility for addressing the needs of children and youth who have become adversely afflicted by armed conflict.426 8.4.4.1.

Children – Family Violence, Child Labour and Poverty in Afghanistan

A study was conducted in October 2005 in Kabul to find out whether war exposure and additional factors such as family violence, child labour and poverty had cumulatively adversely affected the mental health of children aged 7–15 years.427 The study was carried out in one boys school and one girls school in the Dashti Barchi area of Kabul, which was one of the areas most exposed to Taliban-related violence. The children several times brought up themselves the issue of child labour and as a result the researchers asked “whether a child is forced to contribute to the family’s income generation”, and what type of work they needed to conduct and how many hours they worked.428 The definition of family violence used by Catani et al. was “being exposed to physical, emotional, or sexual abuse as well as witnessing intimate partner violence between parents”.429 When the survey was conducted the concept of sexual abuse was not used in a detailed wording because of religious and cultural norms. Also, the boys were only interviewed by male counsellors and the girls by female counsellors. 424 Elbedour et al. (1993) in Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 34 425 In Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 34 426 Gupta, L., (2005) Children exposed to war in Afghanistan, Bereavement Care, 24:2, 31-34, p. 34 427 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171 428 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 165 429 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 165

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While the children had been born after the most severe war-related violence had taken place, 51 per cent of the children had experienced one type of war-related event at a minimum, with an average of 1.53 various types of war events during their lifetime.430 Within the last year of the study, 15 per cent of the children had experienced one war-related event. With regards to the number of events during their lifetime, 58.8 per cent of the boys had experienced one such event at a minimum, and 40.2 per cent of the girls, and the boys had also been exposed considerably to more various types of war-related events than the girls. The most common events for all were “having been badly beaten by militias or other armed personnel” (18.3 per cent), “being close to shelling and gunfire” (16.8 per cent), and “witnessing somebody else being severely beaten or tortured by armed personnel” (22.5 per cent).431 There was a very high occurrence of exposure to family violence, where 77 per cent of the children had experienced this type of violence as a minimum, including 71.3 per cent of the girls and 81.3 per cent of the boys.432 In their families the children had witnessed or experienced on average 4.3 various acts of violence, where the boys had experienced considerably more violent events than the girls. It was found that 23.2 per cent of the children had witnessed another family member being beaten by a family member. At the time of the survey 35.3 per cent of the girls and 35.1 per cent of the boys had in the month before “experienced or witnessed” one such act of family violence at a minimum.433 With regards to the family violence experienced, the children responded that 41.6 per cent had been beaten by the father, 59.9 per cent had been beaten by their mother, and in addition 37.8 per cent had been beaten by an older sibling, and 31.5 per cent of the children had seen their father beat their mother.434 As a consequence of the violence in the family, 11 per cent of the children had been 430 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 166 431 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 166 432 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 166 433 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 166 434 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

injured with bruises, bleedings and broken bones at least once, of which 9 per cent at least once needed to seek medical treatment. Of the boys 15.7 per cent had been injured from an act of domestic violence, and 5.8 per cent of the girls, and 11.4 per cent of the boys had required medical treatment for their injuries and 4.9 per cent of the girls.435 Taken into comparison with other available data worldwide on family violence the researchers meant that the Afghan boys endure “an exceptionally high” level of violence at home.436 In addition, they are exposed to other types of domestic violence such as the husband (father) beating the wife (mother) in front of them. This study confirmed earlier research that childhood adversities are inclined to co-occur for at least those children who live in especially high-risk settings, which the children in this study did in Kabul, and that the risk for developing mental health problems becomes higher.437 It was found that while there was not much knowledge about the effect of child labour on mental health, the data from this study indicated that there is an increased risk especially for girls who are forced to work to be maltreated at home.438 There was only one “significant predictor of family violence” found for boys, which was the number of prior kinds of traumatic events.439 The reason for this was that the boys experienced many more traumatic events than the girls did. This study mirrored the findings of the former study that the authors conducted of children in Sri Lanka who were affected by the war and the tsunami where earlier trauma was found to be con-

435

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children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 167 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 167 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169

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nected to the amount of family violence.440 Finally in this study poverty was not found to be a predictor of whether the children would be exposed to family violence, while other studies have found a link between poverty and child abuse. The children themselves repeatedly talked about being forced to work on a daily basis and it was found that more boys had to work than the girls, 48.7 per cent of the boys were working and 29 per cent of the girls.441 The children were forced to work because the family needed the income and they worked on average of 6.7 hours per day within a 1–13 hours per day working hour range. There was no difference between the boys and girls in terms of the number of hours that they worked and the majority of the children worked as carpet weavers and a few in small shops. Child labour in Afghanistan is not only common but has been going on for a long time; in 2002 there were estimates that about 36,000 children worked in Kabul as carpet weavers.442 All the childhood adversities and traumatic experiences that these children had experienced and were experiencing did have an effect on the mental health of the children. There was a high prevalence of PTSD among the children surveyed with one in four of the boys being diagnosed with PTSD and 15 per cent of the girls.443 The study found that for these children the ratio of the number of the kind of traumatic events experienced and the occurrence of PTSD was “exceptionally high”, as half of the children, boys and girls alike, developed PTSD after having experienced at least one traumatic event. In the study on the Sri Lankan children, this was the case for less than a third of the children surveyed. The authors mean that the context of Afghanistan with child labour and poverty makes the environment especially vulnerable for PTSD to both develop and continue.444 It was 440 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169: See further in this book on the Sri Lanka study (2008). 441 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 167 442 See Cooperation Center for Afghanistan in Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 169 443 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170 444 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

also found that the Afghan children exhibited many physical (somatic) symptoms which especially included headaches (62 per cent of all children), diarrhoea (42.8 per cent) and fever (42.5 per cent).445 This concurs with current research on connecting trauma, PTSD and poor physical health together.446 It was found that for the girls the co-occurrence of different traumatic events were linked to PTSD symptoms, and that cumulative events had a considerable effect on the degree of PTSD symptoms.447 For the boys PTSD symptoms were connected to “the amount of traumatic events” alone, not the type of event. It was concluded that in war afflicted countries like Afghanistan it is not only the war events that might have mental health consequences for children, as additional stressful events (indirect causes) like, as was found in this study, family violence, child labour and poverty affect the children in adverse ways as well.448 The different levels of traumatic events and the interaction between them risk resulting in a situation where children become psychologically even more vulnerable when being exposed to traumatic events, and as a result any existing difficulties in families and communities need to be taken into account in any psychological intervention for children.449

445 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170 446 See Schnurr and Green (2003) in Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170 447 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170 448 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170 449 Catani C., Schauer E., Elbert T, Missmahl I., Bette J-P, Neuner F., War Trauma, Child Labor, and Family Violence: Life Adversities and PTSD in a sample of school children in Kabul, Journal of Traumatic Stress, Vol. 22, No. 3, June 2009, p. 163-171, p. 170

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8.4.5.

Iraqi Children’s Thoughts and Reactions Before the March 2003 US Invasion Conflict is fear. – A five year old child in Baghdad, Iraq, January 2003 I think every hour that something bad will happen to me. – Hadeel, 13 years old, Iraq, January 2003 There will be a lot of destruction and loss of lives. We know that. What concerns me most is the situation afterwards if I am still alive. – Isra, 16 years old, Iraq, January 2003450

The children of Iraq have suffered immensely since the invasion by the US and the multinational forces in March 2003. Much of this suffering was foreseen by the International Study Team in their study conducted in January 2003 before the war started in March 2003 on how a new war would impact the children of Iraq.451 The team compared the Iraqi children’s state of vulnerability in January 2003 with their situation before the Gulf War in 1991. It was concluded that because of the Gulf War of 1991 and the following 12 years of sanctions the Iraqi children were more vulnerable to the negative effects of a new war in 2003 than they had been before the war in 1991.452 It was also noted that the international community had no real emergency preparedness and capacity ready to respond to the threat or the harm of a new war as it related to the children. Almost all children responded that the imminent threat of war did have an impact on their daily lives, and that they were thinking about the threat of war every day.453 The children were alone with their fears and there was not much communication between the children and their parents or their teachers about the upcoming war. An exception was the older teenagers aged 17–19 years some of which had received training in crisis preparedness in their schools.454 Some of the teenagers found the training calming, but others instead felt an increased fear. The children watched the news on TV or listened to radio newscasts about the 450 These three quotes come from The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 17, 18, 20 451 The International Study Team, Our Common Responsibility, The Impact of a New War on Iraqi Children, 30 January, 2003 452 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 4 (Executive Summary) and 6 453 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 18 454 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

threat of war, and many found this information confusing and instead kept away from newscasts. The study team’s psychologists noted that while they understood how difficult it was for parents and teachers to discuss the looming threat of war, since the situation was so critical there was an even greater need to discuss the situation and communicate more with the children about this threat and in this way better care for them.455 They argued that children have specific needs that need to be recognized and addressed including a need for communication, and that this is true for all situations of crisis and not only for the Iraqi situation. It was found that children as young as four and five years old held concepts of “the real physical threats of bombs and guns: destruction of houses, burning of homes, killing of people”.456 They referred to their own families saying that “we will all die”. One five year old child, Assem, said that “[t]hey have guns and bombs and the air will be cold and hot and we will burn very much”.457 However, since these youngest children did not yet have the capability to fully understand the situation this gave them some mental protection. Examples were one girl who thought that if her sister put a blanket over her head she would be protected, and another girl who thought that she would be protected because her brother had a knife in his room.458 In this context, many parents were shocked to learn that this was how their children were thinking. The children’s fear was the most dominant sentiment and the most significant message from the children themselves the study team found.459 As one five year old girl, Sheima, stated to the interviewers, “[t]hey come from above, from the air, and will kill us and destroy us. I can explain to you that we fear this every day and every night.”460 A few boys said that they felt no fear, however all the other children said that they daily had “strong” feelings of fear about the threat of war. They were afraid that their family members or that they themselves would die. As Aizar 18 years old said, “I have only one thought in my head most of the time: war means death to me and my family. Of course.”461 From the interviews with the children it was found that they expressed their fear through often being in a 455 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 456 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 457 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 458 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 459 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 460 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20 461 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20

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state of fatigue, resignation and sadness.462 Sometimes they discussed whether peace and negotiations were still possible, and expressed both hope for peace and optimism for the future, however the discussions would end with the children resigning saying that “[t]here will be a war”. There were talks about the children having adapted to the situation, but there was a “resigned depressive quality” to the adaptation. More than 50 per cent of the children had sleeping problems and nightmares, and most experienced “severe concentration problems” which had a negative effect on their schoolwork and attention levels in school.463 Many had extreme feelings of detachment or expressed a lack of emotionality such as the nine year old girl Hana who said that “[o]ften I feel nothing. Nothing at all.”464 The teenagers made political references to the situation and the conflict, and their discussions reflected geo-political thinking in terms of that they thought that the West (US) wanted the Arab world to be dominated in order to get access to their oil, and some thought that the main reason for the sanctions and the then threat of war in Iraq was “to keep them weak and under-developed”.465 No one made any religious references such as using the terms “the Muslim world”, and the then leadership of Iraq was not questioned. But, the most important issues for the teenagers were not political, but instead their own feelings of seeing themselves as “powerless victims of deprived lives” which referred to the longterm sanctions, and of feeling that an inevitable war would destroy their lives and future and being powerless to stop it. The study showed that the children interviewed worried that they would not live to become adults (46 per cent) and that something bad would happen to them (61 per cent) or a family member (72 per cent).466 The constant tension most likely resulted in physical symptoms such as headaches which 45 per cent of the children reported that they had. While 72 per cent of the children feared that something bad would happen to their family, they were still optimistic and hoped that their situation would improve and they enjoyed playing and having fun. Forty-three per cent of the children thought about the threat of war even if they did not want to, even if they actively tried not to think about it the thoughts

462 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 463 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 464 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 19 465 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20 466 Child Mental Health Questionnaire Results, Table 1: Responses to the threat of a war (%) N=200-222, p. 22, and The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

kept coming back.467 There was also an increase in irritability, and 60 per cent of the children said that they had strong feelings about the threat which made them stay alert and watchful even when there was no reason to.468 There was a high degree of depression and this was considered due to either or both the threat of war and the sanctions, with 37 per cent of the children often thinking that life was not worth living, and 17 per cent of the children thinking so sometimes.469 Many children also felt lonely, with 40 per cent feeling lonely most of the time, and 26 per cent of the children feeling lonely sometimes.470 During the war that started in March 2003 the Iraqi children have been subjected to killings and deaths caused by sectarian violence between different groups, roadside bombs and suicide attacks by different armed groups, as well as killings by the Iraqi military and the multinational forces.471 There was a significant increase in 2005–2006 of abductions of children by Iraqi armed groups linked to the sectarian violence and for ransom. In 2006 there were estimates that about 20,000 people had been abducted and that 50 per cent of those were women and children.472 Concerns were also beginning to be raised in 2006 that children due to the proliferation of different criminal groups were abducted for trafficking purposes to be sexually exploited. In November 2006, local NGOs explained that hundreds of children and youth had left their schools to join different insurgent and militia groups.473 Many of these children had been killed since joining these groups. There had even been a huge increase in the number of children and youth that had joined these different insurgent and militia groups according to Dr. Muhammad Jabbry, politi-

467 Child Mental Health Questionnaire Results, Table 2: Reactions to the threat of a war (%) N=211-219, p. 22, and The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20 468 Child Mental Health Questionnaire Results, Table 2: Reactions to the threat of a war (%) N=211-219, p. 22, and The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20 469 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20, and Child Mental Health Questionnaire Results, Table 3: How children are feeling (%). N = 196-207, p. 22 470 The International Study Team, Our Common Responsibility, the Impact of a New War on Iraqi Children, 30 January 2003, p. 20, and Child Mental Health Questionnaire Results, Table 3: How children are feeling (%). N = 196-207, p. 22 471 General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, 26 October 2006, A/61/529-S/2006/826, p. 10-11 472 General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, 26 October 2006, A/61/529-S/2006/826, p. 10-11 473 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51

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cal scientist at Bagdad University.474 Dr. Jabbry explained that many parents had agreed to having their children join these groups. Because of the different ideologies in current Iraq, different groups have resorted to different forms of violence in order to win.475 One consequence has been groups sending children to fight at the frontline, as families would rather have their children killed when fighting the US military than by any Iraqi armed group.476 The Iraqi Human Rights Ministry stated in 2008 that they had evidence that criminal gangs and terrorist groups were increasingly recruiting juveniles.477 The recruitment has been conducted through threatening juveniles or by promising them money if they joined. The result from over 1,000 interviews by the Human Rights Ministry with juveniles in the custody of the Iraqi government and US forces showed that family neglect was a main reason for joining militant groups.478 They had been used to transport bombs to those areas that the militants could not enter or to paint anti-government graffiti on various walls. The Human Rights Ministry asked for improved comprehensive rehabilitation programmes for the juveniles both when they were in prison and after they were released. In 2007 the detention rates had risen to an average of 100 new cases a month, and that was in contrast to 25 cases a month in 2006.479 The violence in Iraq has had serious consequences on children’s health. Dr. Ibrahemm Jaboury, psychiatrist and vice-president of the Mental Studies Centre in Bagdad, means that the violence has grave mental consequences for the children.480 For the children that have joined the different armed groups, they have been brainwashed to such a degree that it has become impossible to have them change their minds about resorting to the use of violence.481 For other children, one health consequence is that some children have lost their voices as a result of the violence. 474 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51; Also see IRIN In –Depth: IRIN had met with Iraqi children and youth aged between 7 and 12 who were collaborating with the Sunni insurgency groups in mainly Anbar governorate. Of these children, some were trained by the same groups to become suicide bombers, see IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51. 475 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51 476 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51 477 IRIN, Iraq: Move to prevent children being exploited by militants, 29 July 2008 478 IRIN, Iraq: Move to prevent children being exploited by militants, 29 July 2008 479 IRIN, Iraq: Move to prevent children being exploited by militants, 29 July 2008 480 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51 481 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Other children that have not joined the insurgent groups have become involved with the many criminal gangs involved with kidnappings, robberies and contract killings that exist.482 As one 13 year old child explained his joining a criminal gang: “My family needs money and we cannot find a job anywhere, so I decided to help a gang specialised in kidnapping. For each kidnap I get $100 and it is enough to help my family with food for the whole month”.483 The Iraq Ministry of Labour and Social Affairs has become involved with those children who have been arrested for their participation in the criminal gangs involved in kidnappings or robberies.484 As of February 2007, the Ministry had offered care and treatment to about 200 children and taken them to government shelters or orphanages.485 The children have received access to psychological treatment and occupational work therapies and schooling. While the Ministry at the time had taken care of around 200 children the Ministry says that the actual number of children needing help might be around 1,000.486 One press officer of the Ministry of Labour and Social Affairs said that some gangs kill the children if they refuse to continue doing the job.487 Other organizations such as the Baghdad-based Children Saving Association (CSA) have also been involved with the children being used by the insurgents and militia groups. CSA said that they have gotten about 20 reports from different districts in Baghdad and the Anbar governorate with information about children used as fighters and that most of them had joined these armed groups because they needed money to support their families.488 The only exception was the orphans that did not join in order to support their families, but who were exploited to join for other reasons. Saleh Muhammad, spokesman for CSA, stated that: “Children and youth are seriously denied human rights in Iraq. Hundreds of children are being brainwashed and used as fighters with insurgents and militias. Those children are being denied education, good health care and are being exposed to the most dangerous situations between bullets and explosions. The international community should intervene urgently before more children die or 482 IRIN, Youth in 2007, p. 51 483 IRIN, Youth in 2007, p. 51 484 IRIN, Youth in 2007, p. 51 485 IRIN, Youth in 2007, p. 51 486 IRIN, Youth in 2007, p. 51 487 IRIN, Youth in 2007, p. 51 488 IRIN, Youth in 2007, p. 52

crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February crisis: Coming of age in the 2st century IRIN In-Depth, February

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are injured.”489 Saleh Muhammad explains how these groups exploit especially the orphan children who are the most vulnerable as they are without a family to protect them. He continues: “The orphans are the most psychologically affected. Insurgents and militias use their pain [of being orphans] to brainwash them and put them into the frontline.”490 Three studies on the mental health status of Iraqi children were carried out between January and March 2006 in Baghdad, Mosul and Dohuk.491 In Baghdad the study examined 600 primary school aged children from 16 schools with the average age of 10.3 years, of which 47 per cent had experienced a major traumatic event during the past two years. About 14 per cent of these children were found to have PTSD, with girls showing a significant higher degree of PTSD symptoms with 17 per cent for girls and 9 per cent for boys. The study conducted in Mosul examined 1,090 adolescents from eight secondary schools, where also again the girls showed a higher prevalence of PTSD symptoms than boys with 32 per cent and 26 per cent respectively. The study revealed that the older adolescents experienced a higher rate of PTSD than the younger ones, and that almost no one who needed to had received any treatment, with 92 per cent of them not having received any treatment at all. In Dohuk, 120 working street children and 120 school children were examined, and the study found that the working street children exhibited a higher prevalence of mental disorders than the school children, with 36 per cent versus 13 per cent for the school children. 8.4.5.1.

Iraq: The Mosul Case Study

Another study examining the mental health of children in Iraq was conducted in Mosul in 2006 at four primary health care centres.492 The children surveyed were between 1–15 years of age and this age group constituted about 39.8 per cent of the population in Mosul which is one of the largest cities in Iraq. About 3,079 children were part of the study and the end result showed that mental health disorders in the Iraqi children and early adolescents were very common. The most common ten disorders were post-traumatic stress disorder 10.5 per cent, enuresis 6 per cent, separation anxiety disorder 4.3 per cent, specific phobia 3.3 per cent, stuttering and refusal to attend school 3.2 per cent, learning disorders 2.5 per cent, conduct disorder 2.5 per cent, stereotypic movement 2.3 per cent and feeding 489 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 51 490 IRIN, Youth in crisis: Coming of age in the 2st century IRIN In-Depth, February 2007, p. 52 491 Razokhi, A. H., Taha, I. K., Taib, N. I., Sadik, S., Al Gasser, N., Mental Health of Iraqi Children, The Lancet, Volume 368, Issue 9538, p. 838-839, 2 September 2006 492 Al-Jawadi, A. A., Abdul-Rhman S., Prevalence of childhood and early adolescence mental disorders among children attending primary health care centers in Mosul, Iraq: a cross-sectional study, BMC Public Health 2007, 7:274

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

disorder of infancy or early childhood 2 per cent.493 In general terms the boys had a significantly higher prevalence of mental health disorders with 40.9 per cent than girls with 33.2 per cent had, but there were gender differences between the different disorders. Of the girls, 13.8 per cent suffered from PTSD while 7.8 per cent of the boys did, 4.9 per cent of the girls suffered from specific phobia while 2.1 per cent of the boys did, and 0.7 per cent of the girls suffered from rumination while 0.2 per cent of the boys did. However the boys suffered more from enuresis, stuttering, conduct disorders and feeding disorders in infancy or early childhood. The children between 10–15 years old had the highest prevalence of mental disorders with 49.2 per cent, next came the age group between 5–9 years old with 34.9 per cent and the youngest ones between 1–4 years old with 29.1 per cent. The results showed that PTSD was the most prevalent among the disorders in all age groups, where the top two disorders were for the 10–15 year olds separation anxiety disorder 11.2 per cent and PTSD 11.0 per cent, for the age group between 5–9 years old PTSD 9.7 per cent and enuresis 8.9 per cent and for the age group 1-4 year olds PTSD with 11.1 per cent and reactive attachment disorder of infancy or early childhood with 6.5 per cent. Of note is that when it comes to the refusal to attend school, the highest prevalence was among the 10–15 year olds with more boys than girls who refused to go to school, with 3.5 per cent versus 2.8 per cent. It was explained by the fact that the increased poverty due to the war and after years of sanctions made many children in the age group of 10–15 years leave school in order to help their families. The boys had to leave to go to work and contribute to the family income, and the girls took care of the homes and the younger children as their mothers needed to work.494 The authors underscored that since both childhood and early adolescence mental health disorders were so prevalent among the children, there is most importantly a need for providing care at the community level, for public education about this issue, to involve families and communities in any decision-making regarding any policies, programmes and services that will be undertaken, that the Ministry of Health include mental health indicators in its health records and the need for providing care and treatment of mental health disorders at the primary health care level. 8.4.6.

Trauma and Children After the Genocide in Rwanda

A study on the trauma exposure and the psychological reactions to the genocide in 1994 of 3,030 Rwandan children between 8–19 years was conducted 13 months 493 Al-Jawadi, A. A., Abdul-Rhman S., Prevalence of childhood and early adolescence mental disorders among children attending primary health care centers in Mosul, Iraq: a cross-sectional study, BMC Public Health 2007, 7:274, p. 4 494 Al-Jawadi, A. A., Abdul-Rhman S., Prevalence of childhood and early adolescence mental disorders among children attending primary health care centers in Mosul, Iraq: a cross-sectional study, BMC Public Health 2007, 7:274, p. 7

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after the genocide.495 To accommodate about 13,000 children what was termed “unaccompanied centres” were opened, and the UNICEF decided to use the term to cover not only those children who had become orphaned by the genocide but also those children who had become separated from their parents or extended families.496 For this study the children came from 31 community centres and 29 primary and secondary schools located in the11 prefectures, 51 per cent being males and 49 per cent females.497 Most of the children were between 11–16 years of age, and the average years of completed schooling was five years of formal primary and secondary schooling. All the children had been exposed to very high levels of violence of which 95.5 per cent had witnessed acts of violence, and 78.3 per cent had experienced a death in the family during the genocide.498 Of these children 36.5 per cent had lost both parents, 45.3 per cent their mother and 55.4 per cent their father, and 21.9 per cent had lost a sister(s) and 30.9 per cent had lost a brother(s). In addition, more than half, 54.8 per cent, had lost other relatives. In this context, it was found that 35.6 per cent of the children had witnessed when their family members were being killed. The children had experienced extremely high threat levels with 60.9 per cent of them having been threatened with death, and 90.3 per cent of them had thought that they would die during the genocide. Moreover, 79.7 per cent had been hiding in order to protect themselves during the genocide. Most of the children, 69.8 per cent, had seen someone who was injured or killed during the genocide, and 79.7 per cent had heard someone being injured or killed. When it came to what kind of violence the children had witnessed, more than half, 52.5 per cent, had witnessed massacres, and 87.4 per cent had seen dead bodies or parts of dead bodies.499 Other acts of violence that they had witnessed included someone being shot 43.3 per cent, people killing and injuring others with pangas, that is machetes, 58.3 per cent, 30.8 per cent of the children had 495 Dyregrov, A., Gupta, L., Gjestad, R., and Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 3 496 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 4 497 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 5 and 8 498 All the information and data in this paragraph come from Table 1. Rwandanese Children’s Exposure to War Scenes, Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 6 499 All the information and data in this paragraph come from Table 1. Rwandanese Children’s Exposure to War Scenes, Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 6

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

witnessed rape or sexual assault being committed, 82.8 per cent had seen the destruction/looting of their home, people beaten with sticks 59.9 per cent, and shelling or mortar fire 38 per cent, and 35.7 per cent of the children had witnessed other children participating in the killings or in the injuring of other people. There were differences in the number of losses and the amount of violence that the children had experienced depending on whether the children lived in the centres or in the community.500 It was found that the children who lived in the centres had been exposed to more losses and acts of violence compared to the community children, while the community children had suffered from higher threat levels than all the children surveyed. The psychological reactions of the children to the events they had experienced during the genocide included increased intrusion symptoms and arousal symptoms. The children experienced intrusions of images, thoughts and feelings even as they tried not to think about the events and avoided any reminder(s) of painful events, and the arousal symptoms included difficulties concentrating and paying attention.501 The highest intrusion levels had the children “who had lost someone, had experienced violence and threats and were living in the community”.502 It was found that the strongest effect on intrusion symptoms was the exposure to threats, followed by the place of residence. In terms of avoidance those children who had experienced more threats had more avoidance symptoms compared to those who had not had such exposure, and the highest arousal levels had the children “who had lost someone, had been exposed to violence, had experienced threats and were living in the community”.503 That the distress levels of the children were still high more than a year following the genocide was established.504

500 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 10 501 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 11 502 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 12 503 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 13 504 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 14

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Resilience in children was maintained and encouraged by several factors including the availability of family, social and community resources and support.505 However, in a situation such as Rwanda after the genocide the traditional coping mechanisms and the community coherence had been shattered after the social upheaval the genocide caused. This situation very likely resulted in that the adults could no longer take in the needs of the children as much as before since they were themselves experiencing trauma, loss and grief.506 As has been referred to before, children risk becoming inclined to having emotional problems in armed conflict situations when community ties become fragmented.507 The situation for the children at the time of the study was that Rwanda was still very insecure, and the children were constantly reminded of the genocide and neither the family nor the community was able to provide much support, which also increased the vulnerability of the children.508 It was found that exposure had a strong link to intrusive memories and thoughts, and arousal levels, and that having lost someone, exposure to violence and feeling threatened were all associated with higher intrusion and arousal levels.509 Intrusion and avoidance had the highest association with threat levels, after which the place of residence and thirdly living in the community were found to have strong links to intrusion. Earlier research has linked threat associated with exposure with high levels of distress, and further research in Cambodia on genocide survivors showed that survival had a direct association to those experiences with the highest severity levels.510 The finding that the children who lived in the community after the genocide showed higher levels of intrusion and arousal compared to the children at the centres needs to be seen in the context that the UNICEF Trauma Recovery

505 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 14 506 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 14 507 See Elbedour, ten Bensel and Bastien (1993) in Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 14 508 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 15 509 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 15 510 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 15

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Program in the beginning of its work focused on giving training on trauma healing to the caregivers at these centres, while this training was offered 6–10 months after the genocide to only some schools and family members.511 This was true even as the children living in the community had experienced fewer losses and less violence compared to the children at the centres. However, the children living in the community experienced more life threats, and considering the findings from the Cambodian study that survival had the highest ratings of severity, in the Rwandan case, threats to a child’s life was indeed a matter of survival which could account for the higher distress levels. Other factors that made living in the centres beneficial for the healing of the children’s reactions to trauma included the psychosocial environment of these centres.512 The children whose parents and different family members had died found much friendship and acceptance in the centres, and the children understood that they were not alone with their experiences. Importantly, the centres were able to provide basic care, including food, shelter, medical attention, recreational activities and schooling, in a way that the communities could not, and with the UNICEF/Trauma team available the children could be taken care of and talk about their experiences with people who actually were trained in trauma healing, which the parents and other caretakers living in the communities were not.513 8.4.6.1.

Youth-Headed Households in Rwanda After the Genocide 1994

With the increasing number of children becoming orphans in Africa due to HIV/ AIDS and war, it has also become more common for orphans to live together in youth-headed households. Many orphaned children and youth do enjoy support from their extended families, friends and community, however the situation for the orphaned children and youth in Rwanda is different as many have reported that they do not enjoy any support from their extended family but many times feel neglected instead.514 Studies have shown that children and youth in childheaded and youth-headed households in for instance Rwanda, Zimbabwe and Uganda do not receive support from their relatives, and other studies regarding 511

Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 16 512 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 16 513 Dyregrov, A., Gupta, L., Gjestad, R., Mukanoheli, E., Trauma exposure and psychological reactions to genocide among Rwandan children, Journal of Traumatic Stress, Vol. 13, No. 1, 2000, p. 16 514 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229

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child and youth-headed households have shown that some children and youth experience stigma and are socially isolated from their communities.515 The result of the genocide and its aftermath was that Rwanda’s social structure as a whole was severely disrupted, and with regards to the children the traditional social structures that had been in place for the care of orphaned children were as a consequence broken.516 In Rwanda the custom has been that it is the patrilineal side of the family that will take over the responsibility of an orphaned child.517 However, since so many men either died in the genocide and the war or became imprisoned, this custom of paternal support networks was severely disrupted.518 But already before the genocide in 1994 there were constraints on how much support the communities were able to provide to orphaned children, as for instance in 1991 a study of mothers who were infected by HIV revealed that when they died as a result of the disease they could not find anyone to take care of their children.519 One reason as to why the community has not been able to care for children being orphaned by HIV/AIDS is the stigma surrounding the disease. A UNICEF and MINALOC study from 2000 in Rwanda showed that three out of four children orphaned by HIV/AIDS lived in isolation from the community and that other children ill-treated one out of five of them.520 Many Rwandans have seen it as the responsibility of the local authorities and the NGOs to take care of the orphaned children from the genocide and HIV/AIDS epidemic, and many foster parents of orphaned children from the genocide expected compensation.521 A study was carried out in 2004 in Rwanda about the social support youth heads of households aged between 13 and 24 years could access and the level of 515

Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229 516 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558 517 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558 518 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558 519 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558 520 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558 521 Thurman T. R., Snider L. A., Boris N. W., Kalisa E., Nyirazinyoye L., Brown L., Barriers to the community support of orphans and vulnerable youth in Rwanda, Social Science and Medicine 66 (2008) 1557-1567, p. 1558

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

marginalization the youth believed they suffered.522 The study was conducted with 692 youth heads of household who were part of a basic needs programme in Gikongoro, which is the poorest region in Rwanda. The participants were 54 per cent males and 46 per cent females, 28 per cent were 18 years or younger, 6 per cent were under the age of 15, and 70 per cent had lost both parents.523 The main cause of death of the parent(s) was because of diseases such as malaria, ulcers, cholera, tuberculosis and AIDS, but most youth did not know what their parent(s) had died from.524 Only 6 per cent said it was from AIDS that their parent had died from. Instead many of the youth said that it was poison that had killed their parent(s), 35.7 per cent said this about the cause of their mother’s death and 23.6 per cent said this of their father’s death (Table I).525 There could be several reasons for this, according to local experts, such as that the parent had died from AIDS, or from the fact that some community members during and following the genocide in 1994 indeed did poison people, however the poison could also have been used to commit suicide.526 About 10.4 per cent said that their mother had been killed during the genocide and 11.6 per cent said this about their father’s death (Table I).527 Of the youth about 87 per cent had gone to school for some period of time, while only 7 per cent had gone to secondary school.528 Further, only 28 per cent of the youth heads of households who were 18 years and younger and thus were school aged actually went to school when the survey was conducted. 522 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229 523 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 222 524 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 222 525 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, Table I, Description of youthheaded households surveyed in Gikongoro by gender, p. 223 526 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 223 527 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, Table I, Description of youthheaded households surveyed in Gikongoro by gender, p. 223 528 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 223, and Table II. School achievement and assets held by youth heads of household by age categories.

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The majority of the youth in the study owned grazing and farmland and livestock, and the heads of households who were older more often than their younger peers owned a blanket, shoes and an extra set of clothes.529 In this regard, the females more often owned an extra set of clothes than the males, but the males more often owned a latrine. When in need of help the majority of the youth (24 per cent) would turn to a neighbour for help, then to an aunt or uncle (19 per cent) and then to a sister or a brother (16 per cent).530 For 9.7 per cent of all the youth surveyed it was to the NGO, World Vision for Rwanda, that they would first turn to for help. However, 15.8 per cent said that they did not have anyone that they could turn to for help if they needed to. In this respect the older youth more often said that they would not turn to a family member for help and that they did not know of anyone to go to, than the younger heads of households. About 82.1 per cent said that they had contact with relatives, of which about 40 per cent had daily contact and the male heads of households saw their relatives more often.531 Of the youth who said that they had no contact with their relatives, 25.8 per cent did not have any living relatives anymore and 16.1 per cent said that their relatives lived too far away, while 43.5 per cent gave as a reason as to why they did not have any contact with their relatives that their relatives were mean to them and 12.1 per cent said that their relatives did not want to see them (Table IV).532 Several of the youth heads of households who had regular contacts with their relatives found these relationships to be “unsupportive” and “abusive”.533 In terms of support, about 52 per cent of the youth believed that their relatives took advantage of them, only 41 per cent said that their relatives came and visited them to see how they were doing, as many as 62.7 per cent responded that they 529 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 223, and Table II. School achievement and assets held by youth heads of household by age categories. 530 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224 and Table III. First person youth would go to if they had a problem by age categories. 531 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225, Table IV. Support available from relatives by gender of youth. 532 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225, Table IV. Support available from relatives by gender of youth. 533 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

did not think that their relatives were looking out for their best interests, and 75.4 per cent said that their relatives would not help them if they needed help.534 In terms of community support 49.9 per cent said that they could trust most of the adults in their community, but 49.7 per cent said that they could not (Table V).535 However, 56.5 per cent believed that if they needed help their neighbours would help them, and 85.7 per cent trusted that local/grassroots authorities would look out for their best interests if they needed to turn to them with a problem.536 Further, 72.8 per cent responded that they had a trusted adult whom they thought would give them advice and guidance, and, importantly, 91.5 per cent said that they had at least one close friend of the same age to go to for help and advice, and 91 per cent said that they felt that they belonged to a group of friends .537 Indicating adult responsibility, 30.5 per cent responded that it was a long time ago that they had done something with their groups of friends. The younger youth said that they had more support from their relatives and a caring adult than the older youth did, who said that they did not get much help from their relatives and that they trusted their relatives less.538 The female heads of households felt less faith in the general community than the males did, and the males were more confident in getting the support of neighbours if need be. The marginalization scale for the study showed how the youth felt about and perceived the degree of them being marginalized (Table VI).539 The results were significant, as 51 per cent said that they felt isolated from the others in the 534 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 225, Table V. Support networks of youth. 535 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225, Table V, Support networks of youth, p. 225 536 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225, Table V, Support networks of youth, p. 225 537 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 224-225, Table V, Support networks of youth, p. 225 538 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 225 539 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226, and Table VI. Marginalization of youth.

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community, and 47 per cent said that they did not feel that anyone cared about them.540 About 57 per cent of the youth were of the opinion that the community would rather hurt them than help them, and 56.5 per cent said that people in the community spoke badly about them or their family, and that people made fun of them (49.2 per cent).541 Furthermore 86 per cent felt that the community rejected orphans, and neither age nor gender reflected any differences in the responses with regards to the degree of marginalization. The authors of the study referred to other studies in Rwanda that confirmed their results, and these studies have shown that the orphaned and vulnerable children have felt that their family members were more exploitive than strangers and that their least important source of support was their relatives.542 In addition, other studies from different countries in Africa also report that orphaned children have felt exploited by their extended family and that their extended family has taken property belonging to them.543 As these different studies indicate in these particular situations family-centred interventions to properly care for and give support to orphaned children and youth might not be the best types of interventions.544 In the Rwandan context the role of the extended family as the first provider of support to orphaned children needs to be questioned.545 More appropriate interventions for the Rwandan situation would be to focus on villages and the communities, that is unrelated persons, in which the orphaned children and

540 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226, and Table VI. Marginalization of youth. 541 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226, and Table VI. Marginalization of youth. 542 See Human Rights Watch, Lasting wounds. Consequences of genocide and war on Rwanda’s children, 2003 and UNICEF Rwanda and the Ministry of Local Government and Social Affairs, An in-depth assessment into the situation of orphans in Rwanda, Kigali, (2000), in Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 543 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 544 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 545 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

youth live in order to find a way to better provide for as well as protect them.546 However, it needs to be taken into account that 86 per cent of the orphaned youth heads of households in this study responded that they felt that the community rejected them and 16 per cent felt that they did not have anyone to turn to for help which shows the challenges involved in finding appropriate interventions.547 The challenges are very complex, as is how to fi nd the reasons as to why the orphaned children and youth are marginalized. The genocide resulted in social and demographic changes which had detrimental consequences for the support networks of vulnerable children including orphans, as well as led to highly increased levels of mistrust among the population.548 Studies in Zimbabwe have shown that the reasons as to why orphaned youth were isolated were not only because of AIDS, but also because of poverty and their orphaned status.549 The reasons for the stigma that so many orphaned children and youth experience in Rwanda are equally complex as they are for their marginalization. The social problems related to the genocide go very deep, which most likely has contributed to increasing the levels of stigma the orphaned children and youth have experienced, which also the reasons behind how and why their parents died or otherwise are absent have.550 In this study it was especially the older youth aged 19 to 24 and the females who said that they did not have much social support from their relatives or a caring adult or did not have anyone that they could turn to at all if they needed help.551 The females are of special concern as they reported even less contact with relatives than the males did, they did not feel supported by their neighbours, and they did not as a whole trust the members of their community.552 But at the 546 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 547 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 548 Veale and Dona, (2003) in Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 549 Foster et al (1997), in Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youthheaded households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 550 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229 p. 226 551 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226 552 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 226

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same time in this study there was no difference as to the age or gender in terms of who felt marginalized and the majority of the youth did report high levels of marginalization, and more than 46 per cent of all said that they did not feel that anyone cared for them. However one finding of the study was that the youth were not all alone. About 70 per cent said that they had at least one adult they could turn to for help, 86 per cent said that they could go to the local authorities for help, and 57 per cent said that they could go to a neighbour if they needed to.553 Only 20 per cent of them lived by themselves and 92 per cent said that they had close friends. Th is is of significance as relationships with friends for this age group studied here are known to meet their needs in important ways both psychosocially and developmentally.554 This led the authors to conclude that in some instances youth-headed households might be the preferable way to provide care to them. In Rwanda where the number of orphaned children and youth is very high as a consequence of the genocide, war, HIV/AIDS, disease and imprisonment of parent(s) many people have seen it as it is the responsibility of the local authorities and the different NGOs to provide care to the orphaned children and youth.555 The authors rightly mean that the NGOs will not be able to replace community support, and NGOs cannot themselves establish programmes that would target social marginalization without engaging the community members.556 While the community members certainly need to be involved in programmes for the care and support of orphaned children and youth, at the same time with the very high number of orphaned children and youth it is not either possible to expect that individual community members would be capable to take on the responsibility to care for not only their own situation but also for others when the reasons behind the orphaned crisis is really beyond any individual’s capacity to both understand and to handle. There needs to be a governmental plan for the care of orphaned children and youth that seriously focuses on the reasons behind not only why children and youth are becoming orphaned, but also the reasons behind why stigma and social marginalization exist and persist. As has been noted the reasons go very deep and are very complex which requires in-depth and hon553

In Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 227 554 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 227 555 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 227 556 Thurman T. R., Snider L., Boris, N., Kalisa E., Nkunda Mugarira, E., Ntaganira J., Brown L., Psychosocial support and marginalization of youth-headed households in Rwanda, AIDS Care, April 2006; 18(3):220-229, p. 227

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

est analyses. One challenge to this is that maybe the current political context does not yet allow for an open discussion about these different reasons. 8.4.7.

War Violence and Natural Disasters, Children and Mental Health in Sri Lanka

A survey of traumatic stress and PTSD symptoms in Tamil school children aged 9–15 years in the north-eastern part of Sri Lanka was carried out with consideration taken to the accumulative effect of exposure to the war (which had been going on 20 years at the time of the survey) the tsunami in December 2004 and family violence.557 Furthermore, the issue whether there was a correlation between higher levels of war traumatic exposure and higher levels of family violence and children suffering as a result from higher levels of psychological stress was examined. It was found that of the children surveyed, the most frequent types of warrelated experiences were having seen a dead or mutilated body (43.6 per cent), having been close to a combat situation (33.1 per cent) and having witnessed shelling or gunfire (33.1 per cent).558 In addition, the tsunami had had a direct effect on 70.9 per cent of the children surveyed, of which 56.2 per cent saw the wave close by, 98.6 per cent had fled from the wave, and 22.9 per cent were caught up by the wave.559 The children surveyed were also exposed to a high level of aggression at home committed by a caregiver in the family.560 As many as 95.6 per cent of all the children had been exposed to one family violence event, and about 64.2 per cent said that the violence was still occurring. The authors defined violence in the family “as being exposed to physical, emotional or sexual abuse as well as witnessing intimate partner violence between parents”.561 The specific violent events at home 557 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, http://www.biomedcentral.com/1471-244X/8/33 558 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 4 of 10, http://www. biomedcentral.com/1471-244X/8/33 559 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 5 of 10, http://www. biomedcentral.com/1471-244X/8/33 560 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 5 of 10, http://www. biomedcentral.com/1471-244X/8/33 561 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental

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the children were asked about were: being burned, family member burned, being without food, being punched/kicked, having things thrown at them, being ridiculed, having to wear dirty/ragged clothes, being shouted at, a family member hit with an object, arms twisted/pulled by hair, told you are not good, being threatened verbally, family member being hit, hit with an object, and being slapped.562 Of the children surveyed because of the violent treatment at home 18 per cent had sustained at least one injury of which 10 per cent had required medical attention at least once for such an injury.563 The children reported a high prevalence of alcohol use by the fathers, but not by the mothers which was a factor predicting violence in the family.564 Other factors that predicted family violence was earlier war experiences and economic status, and especially a “significant” connection was found between previous war experiences and family violence. The combination of the alcohol abuse by the father and previous war exposure predicted strongly family violence.565 Further, a link was established by war exposure and family violence and children developing PTSD, and for the children who had been exposed to the war, family violence and the tsunami a strong link to PTSD severity in the children could also be established which showed that the mental health of children can be harmed by cumulative stress. The survey showed that other members of a family were also exposed to violence as 55.4 per cent of the children said that they had witnessed another family member being hit within the family environment. Making reference to that 18 per cent of the children surveyed had suffered at least one injury due to violence from a family member, the authors of the study noted that this was an “exceptionally high” number of children suffering from violence at home, compared to

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Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 4 of 10, http://www. biomedcentral.com/1471-244X/8/33 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, Figure I, Percentages of children exposed to different incidents of violence at home, p. 5 of 10, http://www. biomedcentral.com/1471-244X/8/33 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 5 of 10, http://www. biomedcentral.com/1471-244X/8/33 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 4 of 10, http://www. biomedcentral.com/1471-244X/8/33 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 6 of 10, http://www. biomedcentral.com/1471-244X/8/33

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

surveys in the US where between 1–5 per cent of the children suffer from severe physical abuse at home.566 The findings showed that the most upsetting event for 42.3 per cent of the children was in relation to the tsunami, for 14.2 per cent the most upsetting event was related to family violence, and for 12.8 per cent the most upsetting experience was linked to the war.567 About 30.4 per cent of the children experienced PTSD which was considered to be a very high level. In addition, 19.6 per cent of the children experienced major depressive disorder, and 22.6 per cent of the children had experienced previous periods of suicidality, and 17.2 per cent were dealing with current suicidal thoughts. Further a strong correlation between previous war exposure of children and family violence was established, while the experience of the tsunami had no significant correlation to family violence.568 This could be explained by, according to the authors, the fact that not only the children are exposed to war events, but also their parents and all the other family members and that these events also affect them in different ways such as domestic violence committed by fathers (as has been found in previous research).569 In a situation such as the long-term conflict that took place in Sri Lanka over two decades, this also means that many parents have experienced more war related events than their children. The authors argued that because the children were traumatized they acted out more, which might have led their fathers to be more punitive. As the authors said there are many different factors such as the duration of an event as well as the nature of a mass traumatic event that play a role in determining risk factors for the occurrence of family violence.570 The repetitive and 566 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 7, 8 of 10, http:// www.biomedcentral.com/1471-244X/8/33 567 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 5 of 10, http://www. biomedcentral.com/1471-244X/8/33 568 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 8 of 10, http://www. biomedcentral.com/1471-244X/8/33 569 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 8 of 10, http://www. biomedcentral.com/1471-244X/8/33 570 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 8 of 10, http://www. biomedcentral.com/1471-244X/8/33

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chronic stress of the long on-going conflict in Sri Lanka could be thought to have had a destructive effect on how families function, while the short duration of the tsunami at least for the short-term might have had a cohesive effect on families, the authors hypothesized. The study found that the number of negative war related experiences and tsunami exposure were strong risk factors for children developing PTSD, but that family violence was a stronger risk factor for developing PTSD in children compared to past war exposure.571 In the study PTSD was diagnosed in about one in three children, while the criteria for “major depression” and “current suicidal ideation” was met by one in five of the children. Importantly it was shown that “repeated occurrence of traumatic stress has a cumulative damaging effect on the mental health of child victims”, as well as adults.572 The authors importantly noted that in post-conflict societies it is necessary to take into account the cumulative effects of war exposure, family violence and in some cases natural disasters on children’s mental health when developing interventions for war-affected populations.573 They argued that targeted interventions are “urgently” needed and that interventions for children should also take up the psychosocial challenges that their families and communities are dealing with and not only focus on the traumatic war experiences.574 Here for instance assistance in how to manage stress for the whole family was proposed, which could have positive implications also for how parents discipline their children. 8.4.8.

War Exposure and Trauma in Adolescents in the Democratic Republic of Congo

A study that examined the mental health of 1,051 adolescents and young adults aged between 13–21 years from 13 schools was carried out in eastern Democratic Republic of Congo (DRC) in the Ituri district from November 2007 to February 571

Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 8 of 10, http://www. biomedcentral.com/1471-244X/8/33 572 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 8 of 10, http://www. biomedcentral.com/1471-244X/8/33 573 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 9 of 10, http://www. biomedcentral.com/1471-244X/8/33 574 Catani C., Jacob N., Schauer E., Kohila M. and Neuner F., Family Violence, War and Natural Disasters: A Study of the Effect of Extreme Stress on Children’s Mental Health in Sri Lanka, May 2, 2008, BMC Psychiatry 2008, 8:33, p. 9 of 10, http://www. biomedcentral.com/1471-244X/8/33

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

2008.575 The adolescents and young adults came from 32 different tribes (Hema tribe (23 per cent), Bira (18.4 per cent), Lendu/Ngiti (15.8 per cent)), and 42.8 per cent lived in the centre of the town of Bunia, 32.1 per cent in the periphery of the town, and 25.1 per cent came from the rural areas. The children in DRC have been exposed to extremely high levels of violence during the on-going conflict that has mainly taken place in the eastern part of the country in south and north Kivu, in the Ituri district, and in the north-east. This study reflected the magnitude of traumatic events the children have been exposed to, showing that these adolescents and young people had been exposed to 4.71 traumatic events on average, and 9.4 per cent said that they had been exposed to nine or more such events.576 Mels et al. meant that with this level of exposure where 95 per cent of every adolescent surveyed had been exposed to at a minimum one traumatic event, it is possible to compare this situation to Rwanda in 1994.577 Everyone in the study had been exposed to very high levels of violence, while those living in the rural areas had been exposed the most, closely followed by the adolescents and young people living in the town of Bunia, and then in the periphery of Bunia.578 The adolescents and young people who were over 16 years of age (17–21 years) had been exposed to most traumatic events, thereafter came the 15–16 year olds, and then those under 15 years. 19.7 per cent of the girls and 23.8 per cent of the boys had witnessed violent acts being committed against family members or friends, with the group over 16 years having witnessed the most of such events (32.6 per cent).579 70.4 per cent of the girls and 74.1 per cent of the boys had family members or friends who had been violently killed during the war, with 71.1 per cent of those living in the urban community having experienced this, 62.7 per cent of 575 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, In the end 1.046 adolescents were taking part in the study, p. 526 576 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009:, p. 527 577 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529 578 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 527 579 All information in this paragraph comes from Table 2. Traumatic Exposure per Subgroup and for Total Sample, in Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 528

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those living in periphery and 86.6 per cent of those living in the rural areas, this included 62.9 per cent of those under 15 years, 69.1 per cent of those between 15–16, and 83.7 per cent of those over 16 years of age. 62.5 per cent of the girls and 63 per cent of the boys had experienced the looting/burning of their house, with 65 per cent living in the urban area, 48.8 per cent in the periphery and 76.8 per cent in the rural areas. 63.2 per cent of the girls and 67.7 per cent of the boys had experienced gunfire attacks, with 70 per cent of those living in the urban area, 53.6 per cent in the periphery and 3.8 per cent in the rural areas. 59.5 per cent of the girls and 70.9 per cent of the boys had seen someone being killed, with 68.4 per cent of those living in the urban area, 57.9 per cent of those living in the periphery and 70.9 of those living in the rural areas. 62 per cent of the girls and 67.5 per cent of the boys had seen dead bodies or mutilated bodies, with 67.4 per cent of those living in the urban area, 69 per cent of those living in periphery, and 68.7 per cent of those living in the rural areas. 5.1 per cent of the girls and 14.7 per cent of the boys had been enrolled in an armed group, with 13.6 per cent of those living in the urban area, 6.1 per cent in the periphery and 10.4 per cent of those living in the rural areas. Here 15.2 per cent of the over 16 years group had been enrolled in such groups, and 5.4 per cent of the younger ones under 15 years and 9.3 per cent of those between 15–16 years had been enrolled in such groups. 12.6 per cent of the girls and 23.6 per cent of the boys had been kidnapped by an armed group, with 23.1 per cent of those living in the urban area, 11.8 per cent of those living in the periphery and 19.9 per cent in the rural areas. In terms of age 10.9 per cent of those under 15 years had been kidnapped, and 15.2 per cent of those between 15–16 years and 28.5 per cent over 16 years of age had been kidnapped. Three per cent of the girls and 9.8 per cent of the boys had been forced to kill, injure, or rape someone, with 8.5 per cent of those living in the urban area, 3.9 per cent of those living in the periphery, and 6.9 per cent of those in the rural areas, of these 9.9 per cent were over 16 years, 6.8 per cent between 15–16 years and 2.7 per cent under 15 years of age. Thirty-five per cent of the girls and 31.8 per cent of the boys had seen someone being raped, with 35.3 per cent of those living in the urban area, 28.3 per cent in the periphery and 35.1 per cent in the rural areas. 10.5 per cent of the girls and 9 per cent of the boys had been sexually abused, with 9.3 per cent of those living in the urban area, 7.8 per cent in the periphery, and 11.9 per cent in the rural areas, of those over 16 years 13.3 per cent said they had been raped, and of the adolescents between 15–16 years 10.4 per cent had been raped and 3.1 per cent of those under 15 responded that they had been raped. Mels et al. found that 52.2 per cent of the adolescents and young people who participated in the study met the PTSD symptoms criteria, in the context that there was a “highly significant” link found between exposure and PTSD symptoms (intrusion, avoidance/numbing, hyperarousal).580 When it came to age, gen580 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 528

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

der, death of the mother or the father there were no particular differences found between these groups in terms of PTSD symptoms, however those living in the rural areas showed higher levels of PTSD symptoms than the other groups, the second highest levels showed were by those living in the urban area and then the adolescents in the periphery, as an important link between exposure, PTSD symptoms and living area was also found.581 Furthermore, the girls in the urban area showed the “strongest” link between traumatic exposure and PTSD symptoms scores, after which all the boys from the different areas came second and showed equal levels of symptoms wherever they lived, then followed by the girls in the rural areas, and at last the girls in the periphery for which the link was the least strong.582 Also only the girls in the urban area showed higher levels of vulnerability. Another finding was that the death of the mother or the father resulted in the adolescents becoming more exposed to traumatic events, but not to higher levels of PTSD symptoms, as these were present irrespective of lack of parental support.583 As Mels et al. found “lack of parental support did not produce higher symptom levels”, arguing that one explanation could be that everybody in the communities had been exposed to extreme levels of violence and exposure, which had led to ties in the communities and families including support systems having disintegrated, which made all children vulnerable to exposure and to subsequently developing PTSD symptoms.584 However, in DRC the nuclear family is not central to the family structure which might lead to that parental support as a protective factor against developing PTSD might have its limitations.585 The authors pointed out the importance of including the mental health and psycho581

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Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 528 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 528-529 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529

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social needs of the population in any relief, rehabilitation and reconstruction intervention, and then in particular for the rural population who in this study had been the most exposed, since these areas are the least accessible to any assistance and the psychosocial needs may go unrecognized.586 As Mels et. al note if such needs are not addressed there is a risk that these issues will negatively affect existing difficulties within family relationships and communities, and could hinder post-conflict reconciliation and the cycle of violence could possibly continue.587 8.5.

Discussions

8.5.1.

Does Violence Breed Violence in Children and Adolescents Who Grow Up in Armed Conflicts?

Whether children and youth growing up in a conflict situation would be more susceptible to the use of violence themselves in their interactions with others as a result of the violence they have been exposed to has been increasingly questioned, in that there is a better understanding developing about the underlying reasons to the expression of aggressive behaviour.588 As Punamäki explains, for violent experiences to result in aggressive behaviour there needs to be present different preconditions such as behavioural, societal, developmental and familial, combined with multifaceted sets of mediating processes.589 The mechanisms behind why exposure to war would result in aggressive behaviour, encompassing cognitive, emotional, and psychophysiological processes, family relationships, political ideologies and social atmosphere, needs to be acknowledged in order to understand why some adolescents would use violence in their interactions with others and other adolescents would not.590 Customarily the approach has been to 586 Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529-530 587 On the issue of reconciliation see Pham et al. 2004, and Bayer et al. 2007 further in this book, which are also referred to here in Mels, C., Derluyn, I., Broekaert, E., Rosseel, Y., Screening for traumatic exposure and posttraumatic stress symptoms in adolescents in the war-affected Eastern Democratic Republic of Congo, Arch. Pediatr. Adolesc. Med/Vol. 163, No. 6, June 2009: 525-530, p. 529-530 588 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009 589 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 62-64 590 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 62

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

view separately the social and biological aspects of aggression, while the current approach to understanding aggressive development is to integrate the biological, psychological and social mechanisms and focus on their respective interaction that results in both anti-social attitudes and aggressive behaviour.591 For children and youth growing up with war and military violence, it is especially important that such an integrated approach is being used because the environmental influences in those environments, including military violence, belligerent and hateful societal atmospheres, while necessary are not enough in themselves as preconditions for aggressive behaviour of children and youth.592 Neither do factors such as “psychological processes, physiological responses or child temperament” themselves sufficiently account for aggressive behaviour by children and youth in conditions of war. In addition, cultural, political and personal characteristics influence how strongly war trauma exposure impacts a child or youth.593 Both the societal preconditions and mechanisms and the childrelated preconditions and mechanisms need to be examined in order to determine if the experience of war violence would result in aggressive or prosocial behaviour.594 Other important preconditions for aggressive behaviour that need to be factored in are relational vulnerabilities and protective factors as it is in a social (familial) context that a child’s development takes place.595 The following table is taken in full from Punamäki’s “War, Military Violence and Aggressive Development, Child, Family, and Social Preconditions”, as it comprehensively explains and shows the interactions between the child, familial and societal preconditions as potential influences on the development of aggressive behaviour of adolescents during war:596

591

592

593

594

595

596

Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 63 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 63 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64 Figure 3.1. in Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65

609

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Societal, developmental, and familial preconditions and risks for aggressive child development in conditions of war and military violence:597 Societal Preconditions Traumatic experiences Human ideals and National survival world view – Dehumanization of – Loss and death – Heroism & risk– Fear of death Enemy – Witnessing taking – Fear of – Enhancing hatred humiliation – Endurance & annihilation and revenge – Witnessing persistency – Black and white violence – Youth as a savior of & simplified the nation information – Own superiority & disdain of others War propaganda

Developmental Preconditions: Cognitive processes: – Intensified perception of threat & danger – Generalized expectations of others’ malevolence – Narrow & biased problem solving strategies

Familial Risk Dynamics:

 

Parent-child relationship: – Punitive parenting & disciplining – Impossibility to protect children – Fear disrupting early attachment

Emotional processes: – Numbing of feelings – Difficulty to recognize own and

Child participation in fighting: – Early maturation & responsibility

others’ feelings – Dominance of negative emotions – Biased towards behavioural expression of feelings

– Reversal of roles – Intrusive memories of violence

Physiological changes: – Tolerance for violence – Inhibition of aggression



A society at war with its collective war propaganda and people’s personal experiences to traumatic events in itself is a risk for the development of aggressive be597 Figure 3.1. taken in full from Punamäki, R-L., War, Military Violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

haviour in children and adolescents.598 In order to find a way to adapt to and mentally survive in a war zone, the children and adolescents need to acquire certain cognitive, emotional and physiological capabilities in order to be able to respond properly to the situation.599 It is when these adaptive responses become excessive and distorted that they risk resulting in the aggressive development of the child or adolescent. Furthermore, in a war situation family life and the parent’s ability to protect their children are weighed down by threats to life, traumatic experiences and a hateful war atmosphere, which may result in the weakening of family relationships that risks leading to aggressive and antisocial behaviour of their children and youth. In terms of understanding how cognitive processes would risk leading to aggressive behaviour in children and adolescents, research about peaceful societies reveals that children who view “their environment as dangerous, and other people as malevolent, use narrowed and distorted interpretations of their experiences, and apply inadequate problem-solving strategies” are more prone to exhibit aggressive behaviour.600 Moreover, this research has also found that children’s perceptions become interfered with by high arousal, anger and intensive fear, which in turn leads to a situation where children with aggressive tendencies cannot accurately or realistically read the signs of their environments as a help to understand how to behave.601 In these cases the children notice only the “wrongdoings and injustices” of others and do not respond to or accept reconciliatory gestures or signs of cooperation from others. Furthermore, they have difficulties in acknowledging other children’s suffering and fears, and the behaviour of others is viewed as these others threaten and dominate them. As a consequence these children do not see or acknowledge the real behaviour of others or the interactions they have with them, instead they interpret other’s behaviour from their

598 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64 599 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64 600 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64: Since there is no research available on military trauma’s eventual impact on cognitive processes, Punamäki uses the research done in peaceful societies on the subject. 601 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64: Since there is no research available on military trauma’s eventual impact on cognitive processes, Punamäki uses the research done in peaceful societies on the subject.

611

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own internal and personal understanding and perceptions.602 If they are in a bad mood or nervous it is because of others, while at the same time they use their feelings to explain their own behaviour such as that it was because they were in a bad mood that they were violent towards other children. For children and adolescents in war situations, threats to life, personal losses and the destruction everywhere can become greatly problematic for their development.603 If these events become too much for the children and adolescents to emotionally and mentally handle, they may become less able to adapt, which might lead to their perceptions and interpretations of not only themselves but others and the world becoming distorted.604 It has been found in research that people who have experienced childhood trauma still stay alert with regards to potential new threats and dangers, they are expecting that other people have malevolent intentions, and their view of the future is neither farsighted or positive.605 For children and adolescents in war when they are in particular life-threatening situations their altered views and interpretations serve as a form of protection for them.606 That is they do the best they can with the level of cognitive understanding they have in accordance with their development. This altered view of others and the world become problematic and risk leading to the development of aggressive behaviour if they continue responding in this distorted way.607 As a result, this distorted and narrow way of responding could lead to the child or adolescent resorting to aggressive behaviour not only in the war situation but also in more peaceful situations. As Punamäki importantly notes “[c]hildren in war actually experience people deliberately harming them”, and if they as a result feel disappointed in others

602 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 64-65 603 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65 604 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65 605 Terr in Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65 606 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 65 607 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

or question why they would trust other people this is legitimate.608 In this context it is important to acknowledge the role that war propaganda plays into the experiences, views and feelings of the children and adolescents and their interpretation of it all. By depicting the enemy as only bad, the world as a dangerous place, people as untrustworthy and praising the superiority and honour of their own people, the use of war propaganda both adds to and increases any negative and altered perceptions of the children and adolescents.609 The use of the terminology “enemy” creates a “we versus them” paradigm, enforcing division and alienation. There is also an increased risk for the development of aggressive behaviour of children and adolescents if they go on seeing the world as dangerous where they are the victims and others are the oppressors.610 It is important to recognize the dynamic between the war propaganda and the general atmosphere in the war society, because the children and the youth pick up the messages that are being transmitted, which they interpret in combination with their own experiences of violence, death, loss and destruction as evidence of the war propaganda. As a result, when children generalize other people as malevolent towards them, “all other people want to hurt me/us/my family”, there is also an increased risk for aggressive behaviour to develop.611 In terms of predicting aggressive behaviour through military violence in itself, or hostile atmosphere, distorted and narrowed cognitive processes are not enough in themselves to do that, however the interaction between them might predict such behaviour.612 Aggressive children have been shown in research on children in peaceful societies to have difficulties with problem solving, such as that in situations where they in fact can control an outcome such as becoming better at schoolwork and in that way getting better grades, they avoid the situation all together, or in situations over which they have no control like when their parents are fighting, they

608 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 609 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 610 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 611 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 612 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66

613

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try hard to change the situation instead.613 If then in a war situation where children’s behavioural, emotional and cognitive pattern of response becomes narrowed down and where their alternative problem solving and coping strategies have not yet been fully developed, there is a higher risk for children to develop aggressive behaviour .614 Over situations they do have control they are passive, and when they do not have control they become active. In peaceful societies research has revealed that age has an impact on aggressive behaviour in that the older the child is the less aggressive the child is, and that it is around the ages of 11 and 13 years that aggressive behaviour in children is at its highest level, while at the ages of 14 to 16 years such behaviour significantly declines.615 Children start to think, reason and interpret issues faster and in a more “comprehensive, automatic and complex” manner in their early adolescent years.616 Their awareness and interpretations of their social interactions with others become more correct, their understanding of the consequences between their own and other people’s behaviour grows, as does their ability to understand information that is for instance contradictory. As a result the children improve their ability to cope and thus will stop responding to people or events in an instantaneous, impulsive and aggressive manner. However, the “simplistic, fragmented, black-and-white worldview” of the propaganda for war, in itself conflicts with the “prosocial” development of children which is supposed not to be aggressive.617 If the environment of the child is hateful and hostile, the cognitive processes of the child and its worldview risk being obstructed, and hinders the child’s own problem solving capacity, and as a consequence aggressive behaviour might increase.618

613

614

615

616

617

618

Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 66

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Children’s emotional responses to the violence in war, including fear, grief and anger, are all necessary in helping the child to be warned of danger, be comforted and assisted in finding a psycho-physiological balance and ways to effectively cope.619 Two factors have been identified which can foretell when children’s emotional development risks become negatively affected by the exposure to war violence:620 (1) (2)

narrowed and behaviour-dominated emotional expression, predominance and escalation of negative emotional response pattern.

In situations of war and violence the range of acceptable emotions many times are rationalized in that some emotions become less acceptable such as feelings of fear, helplessness as well as compassion toward the enemy, while other emotions like being bold, aggressive and angry towards the enemy become both accepted and encouraged.621 The limited down range of acceptable emotions meets the psychological needs in that by not feeling the whole range of emotions this will help the individual not to be so conscious about his/her pain, emotional and/or physical. In this context, it needs to be pointed out that it has been demonstrated by research that those adults and children alike who are traumatized as well as put a lid on their feelings in order to numb them many times cannot control their behavior and act hastily.622 To act hastily and impulsively relates to being able to escape from danger by having one’s feelings changed into immediate action without further thought. It has been found that human beings more rapidly and forcefully respond to negative stimuli than positive, for the reason that negative feelings relate to danger and threats to life and survival is correlated with fast reactions.623 In addition a person’s mood has an impact on how we view, interpret and remember our experiences, such as if a person is in a sad mood that person recalls the bad memories the most, and sees other people as also being de619 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67 620 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67 621 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67 622 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67 623 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67

615

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pressed.624 It has further been found in research that in peaceful societies aggressive children exhibit negative feelings strongly, and that they are very “sensitive to hostile signs” and often read too much into the signs they find negative. In addition, aggressive children can become angry by what seems to be at random, and it is a challenge for them to calm down once they have become angry and they often direct these angry feelings also to other circumstances. When the negative mood is allowed to continue to be used as a form of guidance and interpretation of signs and behaviours also in neutral and non-threatening situations, there is an increased risk of aggressive behaviour.625 For adolescents in war situations there is a high risk that they will behave in aggressive ways in cases where their negative moods, suspicion, hostility, anger that originate from traumatic war situations, are continuing into and influence their relationships with their family, friends and school.626 However, if these adolescents were taught how to identify not only their own feelings but also the feelings of others, and supported and made to feel safe in expressing the range of their emotions, then positive prosocial development are likely to take place.627 The high arousal levels and the ever present alertness for danger in lifethreatening situations such as war relate to the psychophysiological mechanisms of a human being.628 Punamäki means that these mechanisms to a certain extent provide an understanding for the relationship between exposure to violence and aggressive behaviour. These psychophysiological mechanisms encompass habituation, the threshold effects for increased tolerance for violence, the lack of inhibitory processes and problems with the regulation and modulation of aggressive impulses.629

624 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 67 625 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 626 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 627 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 628 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 629 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Habituation arises when an individual become so caught up from and used to having experienced violence-induced arousal, activity and strong emotional involvement that it leads to this individual wanting more of the same, and in these cases more excitement and danger.630 The initial thrill that the individual felt makes the individual at first able to keep a psychological and physiological balance, however over time some start feeling very comfortable in and stimulated by situations of danger. As Punamäki stated, “[v]iolence can numb senses and distort adequate fear responses”.631 In dangerous situations such as war situations high arousal and high alertness levels function as adaption tools for the individual, however for children and adolescents to live like this can take a very strong toll on them if they remain in this state for a longer period of time. Findings from research on what effects for instance violence on TV and in various computer games have on children has revealed that some children adapt to the violence in such a way that they want to see/experience more violence not only on TV but also in real life.632 Further it has been shown that children as a result of entertainment violence are no longer as sensitive to violence in real life, and that they can become indifferent to the painful experiences of both themselves and other people.633 Neurophysiological changes produce what is called “[t]he inhibition failure of aggressive activity” and are the result of having experienced high levels of violence at an early age.634 These changes can in some instances influence the development of children by interfering with their biological maturation processes in the way that their startle reflexes as a response to fear become less strong and effective. Further, these changes interfere with those mechanisms that control (put the brakes on) “anger and aggressive impulses”. In terms of the threshold for aggression and the inhibition mechanisms of violence (control of aggression and the expression of violent behaviour), the hu-

630 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 631 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 632 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 633 Kostelny & Garbarino, 2001 and Murray 1997 in Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68 634 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 68

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man being has “mechanisms for the control of aggressive behaviour”.635 For instance, to be able to acknowledge a fighting partner’s gestures of submission has been said to serve to inhibit violent behaviour as a response to those gestures.636 For children this particular process of recognition is a necessary component of the development of a child’s pro-social learning and capacity for empathy, and as a consequence from learning empathy a child will not use aggression towards someone who suffers. Other necessary factors in the child’s development of the “inhibition of aggression” are reversal of learning and being able to put an end to an activity that one is engaged in.637 But if the level of arousal of negative emotions become intensified this risks getting in the way of ending an action as well as with the ability to reverse learning. Research has shown that the risk for aggressive behaviour in adolescents increases in situations where their perceptions and expectations of threats and maliciousness become generalized and transferred into situations that are safe, and when their negative feelings are so strong that they negatively colour those experiences that are usually considered to be neutral and enjoyable.638 The family dynamics and the relationship between parents and their children face particular challenges in situations of war. The parents are to protect their children, while also providing for them emotionally, mentally and materially, at the same time as their children grow up experiencing different development phases, phases that have their own challenges also in peacetime and not only in war time. Whether family dynamics and parental care in war situations can influence the development of aggressive behaviour in children has been much researched. It has been found that especially three family dynamics pose a risk for children developing aggressive behaviour in war situations and they are:639

635 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 636 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 637 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 638 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 639 See Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

–

–

–

traumatic experiences tend to compromise parental resources and enhance punitive and controlling parenting practices that can lead to hostile interactions between parents and children; creating a secure early mother-child relationship is at risk in life-endangering conditions, which may then interfere with healthy development of emotion regulation, social competence, and trust in others; belligerent societies tend to encourage children to assume adult roles in joining the military struggle, which may sacrifice their developmental needs and lead to negative outcomes.

Punamäki has put together a table showing what kind of tasks and challenges children in both a peaceful society and a violent society are faced with as they go through different developmental stages, infancy, toddler age, middle childhood and adolescence. Corresponding to the tasks and challenges of childhood, she also shows the role and tasks for the caregiver in both a peaceful and a violent society during these different development stages.640

640 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 70

619

– Creating safe base & exploring environment – Physiological regulation

– – – –

– – – –

– – – –

Infancy

Toddler age

Middle childhood

Adolescence

Emotion regulation (fear) Reality testing Peer thrusting Survival strategies

– – – –

Intimate relationships Shortened view of future Ideological commitment Collective sacrifice

– Cognitive complexity – National performance – Heroic conduct & social acceptance – Moral development; questions of life & death – Worry about family

– – – –

– Safe base – Physiological regulation

Violent society

– Granting psychological autonomy – Indirect involvement

– – – –

– Indirect monitoring – Support & guiding – Open communication

– Enduring losses – Encouragement & support – Sharing of grief

Protection of danger Direct monitoring Consoling & supporting Negotiation of responsibilities

– Protection of danger – Emotional regulation (fear & anger) – Protecting from wrongdoings

– Protection of danger – Regulation of emotion

Violent Society

– Emotional regulation (comprehensive) – Differentiate imagination & reality – Teaching limits

– Sensitivity & responsiveness

Peaceful Society

Caregiver: Parenting Role and Tasks

641 Table 3.1 in Punamäki, R-L., War, Military Violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80, table taken in full, in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 70

Intimate relationships Future plans Worldview Identity

Cognitive sophistication School performance Social acceptance Moral development from concrete to abstract

Emotion regulation (anger) Symbolic activity Peer relationships Right and wrong

Peaceful Society

Developmental Stage

Child: Tasks and Challenges

Tasks and Challenges of Parents and Children in Peaceful and Violence Environments across Development Stages:641

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The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

As has been argued the most important task of a parent or other caregiver during war is to provide protection for the children and to soothe and ease the burden of the child from traumatic war experiences.642 At the same time depending on the situation parents can easily become overwhelmed by the magnitude of a violent situation, as well as by abject poverty, lack of food and health care and therefore cannot adequately care for their children. A study from the Occupied Palestinian Territory found that children of parents who had experienced much military violence, such as detentions, home demolitions and killings, were treated by their parents in a more penalizing and severe way compared to children of parents who had not experienced violence to such a degree.643 These parents did not want their children to participate in resistance activities that would pose a threat to their lives and said that this was the reason why they used punitive methods towards their children. This study also showed that when children had loving and caring parents they were protected by this positive parenting and were more easily able to adapt because positive parenting provides support to the cognitive and creative abilities of the child.644 Another study by Quota and Punamäki et al. showed that those Palestinian children who had been exposed to brutal military violence were behaving more aggressively and antisocially (like being a witness to a killing).645 Children were given protection from aggressiveness by positive parenting in these cases, by their parents showing support and not being punitive. One factor in children behaving aggressively is conflicts between spouses in families that are traumatized by war.646 An additional factor for aggressiveness in children is family and domestic violence. In the Palestinian familial context another factor that might have consequences for children’s aggressive behavior is that many men have been imprisoned in Israel. Research has found that as a result upon returning to family life many of these men have problems with their relationships with their wives and children, and that they seek help in order to be 642 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 643 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 69 644 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 71 645 In press, in Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 71 646 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 71

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able to deal with these issues.647 These men have revealed that they have not felt in control of whether they would hurt other persons. One conclusion from this research is that psychosocial interventions for children in war situations should also focus on providing assistance in positive parenting and in how to improve the relationships between a couple/spouses, in order to protect the child from developing aggressive behaviour.648 The significance of the relationship between a mother and her child is highlighted for children in war situations. A mother who transfers her own fears about threats to life onto her child (especially in early childhood) counteracts the primary task of a mother to provide a safe place for the child from which to examine the world, and this risks getting in the way of the development of a positive interaction between the mother and child.649 This may result in that the child communicates emotions through becoming aggressive and “acts out” (“insecureambivalent children”) or withdraws and becomes depressed (“insecure-avoidant children”).650 Such a disrupted “insecure-ambivalent early mother-child relationship” could mean that war violence is related to a child behaving aggressively. Furthermore, it is through the interaction with the mother that the infant learns about what purpose the expression of emotions serves and how to predict the behaviour of others.651 If the mother when her infant is angry at being separated from her and thus cries takes such behaviour to mean that the child is disobeying her and being aggressive or if she ignores and rejects the child this child will still be angry. Research on Palestinian infants and mothers has shown that the risk for mothers to become less sensitive is higher in situations of violence and danger, and this many times leads to mothers either withdrawing from the child and/ or becoming overprotective of the child in an intrusive manner.652 It has further 647 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 648 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 649 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 650 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 651 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 652 Qouta, Kassab-Helmi, Punamäki, 2003 in Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

been shown that it is especially damaging to the child’s attachment development if the child detects fear and panic in the eyes of the mother. The different experiences of attachments teach the child about how to express itself, how to become recognized and to recognize, and how to regulate emotion like anger, frustration and aggression.653 During the toddler years first through interacting with the parents and later within themselves, the children learn how to regulate emotions, such as impulse control, how to analyse the behavior of others and how to calm oneself down.654 Importantly the expression of aggression in early childhood is not in itself a predictor of aggression in later years.655 Instead significant predictors are a child’s emotional regulations when having become negatively interfered with and when the social interactions of the child have been compromised by “distorted attributions”, such as that aggressive behaviour is thought to be acceptable.656 The child has come to view certain behaviour in such a way that the child ascribes antisocial behaviour as something acceptable. In the case of children traumatized by war it would be possible “to predict antisocial behaviour and aggressive development” as a consequence of aggressive behaviour in early age, in those cases alone where also compromised emotion regulation and “attributions that accept and idealize aggression” are present.657 The middle childhood years is a time when the child is much engaged in cognitive learning and when academic success is becoming important, and when the relationships with friends and being popular are becoming central to the child.658 However, for the children living in a war situation, many children have their education disrupted and/or schooling is not available, and many children have to take on the responsibilities of adults to provide for their families, with

653 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 72 654 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 655 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 656 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 657 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 658 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73

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the result that there can be a role reversal within the family, which has its own complications. Adolescents are usually very interested in issues concerning morality, justice and the future for them and others, and in war situations the moral and identity development of the adolescent is very much “challenged” by the war, and questions of morality and ideology mirror the reality they experience in terms of the value of life and the fact of death.659 An adolescent’s psychological integrity can be strengthened if moral dilemmas can be positively resolved, and such a positive outcome can also result in a “high moral status” and a “healthy ideological commitment” of the adolescent.660 However, research has found that conversely if a moral dilemma does not get a satisfactory resolution, the adolescent may instead exhibit “fragmented thinking, immature moral reasoning, and extreme views which are often combined with aggressive tendencies”.661 In conclusion the reciprocity of the relationship between a parent and a child significantly contributes to how and when aggression by children and adolescents can be expressed and controlled.662 Further research needs to be done on the process of socialization of children and adolescents to see if and how there are any differences between safe and insecure environments in this regard.663 In this context how social interaction is being prioritized can be totally altered by threats to life on a continuous basis. As has been noted “children and adolescents construct their experiences according to the meanings given to them and the various social and psychological preconditions that accompany violence”.664 For children in war situations there is a risk for aggressive behaviour by the child or adolescent when they do not have the capacity to interpret the messages that are being transmitted, but in-

659 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 660 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 661 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 73 662 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 74 663 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 74 664 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 74

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

stead interprets them as malign or negative. With regards to the child-parent relationship there is a risk for aggressive behaviour by the child when the parents are not able to offer security or cannot in any other way compensate for the traumatic experience(s) that war brings. It is when the parents respond in punitive and harsh ways and when “the early mother-infant interaction is frightening and insecure” to the child that the risk that the child acts aggressively is increased.665 For adolescents the risk to become aggressive increases when it has not been possible to establish “a sense of security, trust, emotion regulation”, and furthermore when “sophisticated cognitive and moral considerations are compromised”.666 8.5.1.1.

Does Good Parenting Protect Against the Children Developing Aggressive Behaviour in a Conflict Environment?

Parents and teachers in the Palestinian community are very worried about what the consequences will to the children’s development, and in particular with regard to aggressiveness, as a result of the threats to life on a continuous basis, military violence and destruction.667 In this context two studies were carried out in the Gaza Strip in 1997 and 2005 by Qouta et al. to find an answer to the questions “whether aggressive responses are more common among Palestinian children exposed to severe military violence and whether good parenting can protect exposed children from aggressive development?”668 The first study in 1997 was carried out at a time when fighting had ceased, as there was a pull-out by the Israeli military from 65 per cent of the Gaza Strip and a peaceful solution seemed probable, and the second study was carried out when the Al Aqsa Intifada was on-going in 2005 when there was intense violence.669 In the first study 640 children participated and they were between the ages of 6–16, and 225 school children between the ages of 10-14 participated in the second study.

665 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 74 666 Punamäki, R-L., War, Military violence and Aggressive Development, Child, Family, and Social Preconditions, Chapter 3, p. 62-80 in Barber, B. K., Adolescents and war, How youth deal with political violence, 2009, p. 74 667 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 1 668 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 1-2 669 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3

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Qouta et al. mean that the concept of aggression in children is much broader than being only a matter of the physical or psychological expressions of violence with the intent to hurt other persons. They refer to the concepts of reactive and proactive aggression, explaining that “[r]eactive aggression involves overt and often physical action of harming with angry outbursts in response to actual or perceived provocations” and that proactive aggression “does not require provocation or anger, but it is used to reach other goals through violent means”.670 They continued that there is also a distinction between direct and indirect aggression, where direct aggression includes that a child would hit or curse at friends or destroy things belonging to them, while examples of indirect aggression include being socially manipulative and scheming with the intent to cause pain, to make others feel ridiculous or excluded. Research has indicated that reactive aggression is linked to the loss of a family member or being injured in war as examples of war exposure at a personal level, but that war related threats and being a witness to violence in war are not.671 Much research has shown that violence alone is not the only reason for the development of aggressive behavior in children who have grown up in violent family and community environments.672 It has been demonstrated that violence in communities such as “chronic poverty, losses, criminality and gang fights” leads to a risk of aggressive behavior as a result of several dysfunctional cognitive and emotional processes of the child or adolescent, as well as from not knowing how to properly cope and lacking adequate social support.673 Further, children’s interpretations, norms, fantasies and cognitive understanding are impacted by community violence and may influence child development in such a way that there is a risk for aggressive behavior by the child as well as that the child believes that violence is a means to problem solving.674 It has been shown that in the family context children will not become aggressive or exhibit antisocial behavior as a result of family violence in those cases where the child does not get over involved, 670 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2 671 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2 672 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2 673 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2 674 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

is able to adapt his/her coping strategies and to process his/her experiences in a satisfactory emotional and psychological fashion.675 As Qouta et al. conclude, aggressiveness and antisocial behavior in children cannot be foreseen only by their experience of violence in war. The expression of aggression in children is related to the distinct changes in the development of the child and to differences in gender.676 Toddlers resort to physical aggression and fights more generally than older children do, and with age reactive and physical aggression decrease while in early adolescence aggressive behaviour is peaking during the years of 12–14 after which physical aggression decreases again.677 However some have come to question whether there is a peak of aggression during the early adolescence years, arguing that the young adolescents who exhibit aggressive and antisocial behavior could very well have been already as toddlers very physically aggressive.678 Qouta et al. argue that with regards to children who are exposed to war, when examining their aggressive behavior it is very “informative” to study the development changes in aggression of the child.679 They stipulate that in general children need personal resources and family, school and societal support for a decrease of aggression to occur, however for children in war situations, military violence takes place concurrently with the psychological and biological changes of the children. This dual situation influences and can interfere with the cognitive, emotional and psychophysiological processes of children which in turn then can have an impact on whether there will be a reduction in the levels of aggressiveness as related to the development stages of the child.680 Here Qouta et al. argue that because of this dynamic there might not be a decrease in aggression following age for war exposed children. They also refer to research on community violence done with elementary school 675 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 2 676 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 677 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 678 See Vitario et al. 2006 and Brame et al. 2006 in Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 679 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 680 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3

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children in the United States in urban neighbourhoods by Guerra et al. from 2003.681 Guerra et al. found that there was an increase in the aggressive behavior among children aged 5–12 who lived in communities with much violence, as well as that the children had more aggressive fantasies and were more accepting of aggressive solutions.682 As a consequence, Quota et al. explained that reactive aggression specifically decreased with age in a peaceful environment, while aggression increased with age in a violent environment. The results from the first study conducted in the Gaza Strip in 1997 showed a correlation between higher levels of military violence and higher levels of aggressive and anti-social behavior among children who had witnessed such levels of violence, and that children who had witnessed lower levels of violence also showed lower levels of aggressive and anti-social behavior.683 The parents reported that the younger children exhibited particularly high levels of aggressive behavior in cases where they had been exposed directly to military violence. The parents and the teachers reported that the boys exhibited more aggressive behavior compared to the girls. However, there were no differences in gender with regards to the exposure to the military violence. The study found that the younger children exhibited a higher degree of aggressive and antisocial behavior compared to the older children, and that this was particularly the case when the military violence had directly affected them (they were direct victims).684 The children who had parents who were punitive and non-supportive exhibited more aggression than other children. More specifically, the study found that if a child was directly victimized by military violence, aggressive and antisocial behavior was found to be more prevalent in children whose parents were punitive and not supportive.685 The aggressive and antisocial behavior of children was connected to parents being highly punitive. 681 Guerra, N. G., Huesmann L. R., Spindler A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/October 2003, Volume 74, Number 5, p. 1561-1576 in Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 682 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 3 683 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 6 684 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 6 685 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 7

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

The second study from the Gaza Strip conducted in 2005 found that military violence had directly victimized the older boys more compared to the younger boys, and being a witness to military violence had been more prevalent for the older girls compared to the younger girls.686 Among the boys there was no direct correlation between age and aggression, while the study showed that there was a “decreasing enjoyment of aggression” with age for the girls. Having witnessed military violence was associated with the three aggression measures including “reactive and proactive aggression”, and “aggression enjoyment” for the boys, while for the girls an association was found only for “proactive aggression” and “aggression enjoyment”.687 In terms of having been “victimized directly by military violence”, there was a positive association between military violence and “reactive aggression” for the boys, and a much lower association between military violence and “proactive aggression” for them. Furthermore, the second study from 2005 found that the children who had witnessed high levels of military violence also had higher levels of “proactive aggression”, “reactive aggression” and “enjoyment of aggression” compared to the children who had witnessed lower levels of military violence.688 The boys had higher levels of all the three types of aggression compared to the girls, however, the boys and the girls showed almost equal associations between the witnessing of military violence and aggression. Another finding was that the younger children exhibited a slightly higher degree of “proactive aggression” compared to the older children. However, at the same time it was concluded that no matter the age there was an association between witnessing military violence and aggression as age was not a factor in this regard.689 Qouta et al. stipulate that not only military trauma contributes to aggression in children and they have identified three additional factors that contribute to aggression in children that are of relevance.690 The first factor is the influence of parents, siblings and peers which they argue can have a stronger impact on 686 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 9 687 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 9 688 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 9 689 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 9 690 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 12

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children’s aggressive behavior than military violence in some instances. The influence of a child’s parents, siblings and peers is experienced by the child at a very close range, while military violence at times is experienced at a distance. In this context they refer to having confirmed that punitive parenting is linked to child aggression and is a mediating factor between violence and aggression in children. Further research they mean needs to examine the norms of parenting with regards to whether aggression is to be considered a suitable remedy. More research also needs to be conducted with regards to how siblings and peers solve problems between themselves. Secondly there is a need to examine the child’s own mechanisms that might lead to aggressive behaviour in children in war societies. Here issues such as why some children show aggression while other children in the same violent circumstances do not, but instead might become depressed or proactive, needs to be further explored. The characteristics of the child, like “age, gender, temperament, trait hostility, attitudes to war, emotional regulation and physiological stress reactions”, interact with situational factors, such as “the nature and meaning of trauma, the degree and significance of humiliation and life danger” which result in the child behaving aggressively.691 Also, for aggression to occur certain changes and preconditions in the cognitive, affective and arousal states of children need to take place and exist. The authors mean that the question of “how being a target or witnessing military violence in certain age influence children’s cognitions like attention, memory and attributions, and emotions like fear, anger and hostility?” needs to be answered in future research.692 The third factor they point out is that there is a need for the examination of how societal and cultural norms influence aggressive behavior in children, as there is not much knowledge about how or if the national historic interpretations of a society’s experiences as a collective and its cultural codes either can promote or deter aggressive thoughts/ scripts, intensify antagonistic feelings or whether the expression of anger at an individual level is actually being regulated by such societal and cultural determinants of aggression.693 One important conclusion from the study was that supportive and nonpunitive parenting provided protection to the children in terms of developing aggressive and antisocial behavior, including for those children who had been gravely victimized by military violence or had become witnesses to such vio-

691 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 12 692 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 12 693 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 12

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

lence.694 Another finding was that boys and girls alike act out and develop aggressive behavior as a result of military violence exposure.695 There were clear links between the aggressive responses by the children and their own military violence exposure, and this was found to be true irrespective of a period of calm or intense military activity. However, positive family relations also lessened the effect of the war on the aggressive and anti-social behaviour of the children. As was found it was not “the intensity and the immediate objective external danger” that predicted the link between military violence exposure and child aggression.696 Child aggression was significantly linked to the act of having witnessed violations committed against others and this was the determining factor in both of the studies. While both being directly victimized and being a witness to violence were linked with aggression in the children, the more significant determinant factor for child aggression was the child having witnessed a violent act of another.697 8.5.2.

Community Violence Exposure and Aggression in Children Efforts to reduce community violence may lead to reductions in aggressive behavior among school children. In addition, for those children who are exposed to community violence, interventions are needed to weaken beliefs that aggressive behavior is acceptable.698

In the United States many children growing up in urban and inner city communities are exposed to very high levels of violence on a regular basis. As a FBI study from 2002 has shown, of all violent crimes in the US, 79 per cent take place in the inner cities.699Many begin to question how these high levels of violence affect the

694 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 10 695 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 11 696 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 11 697 Qouta, S., Punamäki, R-L., Miller T., El-Sarraj E., Does war beget child aggression? Military violence, gender, age and aggressive behavior in two Palestinian samples, Aggressive Behavior, Volume 33, p. 1-14, 2007, p. 11 698 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/October 2003, Volume 74, Number 5, p. 1561-1576, From Summary 699 In McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, 2009, p. 896

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development and behaviour of the children, as it is increasingly being acknowledged that this type of violence negatively impacts children and youth, comparing it to war situations. The research that has been conducted has produced some very important findings that are also relevant for getting an additional understanding of how very high levels of violence affect the development and behavior of children and youth in war situations. There is a risk that children get used to violence when having been exposed to it constantly while growing up, and that they might not view violence as horrifying as others do who have not been exposed to such violence.700 Emotion regulation and emotional responsitivity also play roles in determining the risk for children and youth in developing aggressive behavior. Being exposed to violence is an arousing event that for children high in emotionality might impede their development of those mechanisms which work to regulate how they control their emotions.701 If a child has not developed control of his/her emotions, there is a higher risk for aggressive and antisocial behavior to develop in this child.702 Guerra et al. mean that for a child to have regularly been exposed to violence in different situations, taking into account the cognitive and emotional processes of the child, such exposure must increase the risk for this child to establish aggressive ways to deal with situations.703 A study, the Metropolitan Area Child Study, conducted over six years was carried out of 4,458 children from 21 schools from grades one to six between 1991 and 1997 in the Chicago area, with the purpose to examine exposure to community violence and the effect of the mediating factor of social cognition on aggressive behavior.704 These schools were all located in urban communities with high levels of social distress and economic disadvantage, and high levels of violence. Two factors of social cognition were used, “fantasizing about aggressive scripts and normative beliefs about aggression”, because they have the function of normalizing violence and assisting the children in getting used to the violence they 700 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1561 701 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1561 702 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1562 703 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1562 704 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/October 2003, Volume 74, Number 5, p. 1561-1576, p. 1564

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

have been observing and the resulting stress and trauma.705 These cognitions furthermore increase the risk for the children to develop aggressive behavior. For instance if a child sees the use of violence as something normative this could desensitize the child to the extent that the child no longer is aware of the real consequences of violence, and what is termed “pathologic adaptation” such as the child adopting a streetwise mentality might be the result.706 The authors of the study examined several issues including whether the “social cognitions mediate the relations between community violence exposure and subsequent aggression”, and whether these mediating influences were stronger for the older children, and if exposure to community violence had different effects on the males and females.707 The questions Guerra et al. asked the children reflected the violent environment in which they lived and grew up and this in Chicago in a peaceful society. With regards to peer-nominated aggression, the children were asked questions such as: “Who starts a fight over nothing? Who tells stories and lies to get the other children in trouble? Who pushes or shoves children? Who says mean things?”708 With regards to neighbourhood violence they were asked questions like: “1. Have you seen anyone beaten, shot or really hurt by someone? 2. Have you seen or been around people shooting guns? 3. Have you been afraid to go outside and play, or have your parents made you stay inside because of gangs or drugs in your neighborhood? 4. Have you had to hide some place because of shootings in your neighborhood?”709 With regards to aggressive fantasy the children were asked questions such as: “Do you sometimes have daydreams about hitting or hurting someone you don’t like? Do you play games where you pretend to fight with someone?,” and finally regarding normative beliefs/approving of aggression

705 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/October 2003, Volume 74, Number 5, p. 1561-1576, p. 1563 706 See for instance Schwab-Stone et al., in Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1563 707 See for instance Schwab-Stone et al., in Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1564 708 Table 2, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1566 709 Table 2, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1566

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they were asked questions like: “Suppose a boy says something bad to another boy John – do you think it’s OK for John to hit him?”710 Overall there was a decline reported by all children over time to their exposure to neighbourhood violence, and this was not because the children had moved away from these neighbourhoods, or that the rates of the community violence had gone down. The rate of community violence remained high, and the authors of the study found several explanations as to why the children over time had reported lesser violence exposure. One reason was that when children are exposed over time to repeated violence they get used to this, so called “habituation”, and when they get used to violence in this way they stop seeing and taking notice of violent events.711 Another factor they reasoned could be that children when they grow older do not play outdoors as much as when they are younger and as a result get less exposed to neighbourhood violence. This is usually especially the case for girls, and in this study it was shown that for the girls there was a greater decline over time in exposure to neighbourhood violence than there was for the boys. However, aside from the decline of community violence regarding all children, it was found that with age there was a considerable rise in the aggressive behavior of the children and in the social cognitions of the children that support aggression.712 There were gender variations over time as initially the boys showed higher rates on both of these cognitions, however over time when it came to aggressive fantasizing the girls had a much higher increase than the boys and they were shown to have the same level of beliefs supporting aggression as males had.713 This showed that for the average individual in these violent environments during the elementary school years there was an increase in both aggression, and in the social cognitions that support aggression. The study showed that the more aggressive the child was the more exposed to violence the child had been, and the more the child engaged in aggressive fan-

710 Table 2, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1566 711 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1572 712 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1568 713 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1568

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

tasizing and held normative beliefs in support of aggression.714 The relation between social cognitions and exposure to violence was shown to be higher in the sixth grade compared with the earlier grades, which gave evidence that in middle childhood social cognitions come together. However it was also shown that there were significant individual differences with regards to how the children scored on social cognitions and aggressive fantasizing which had no connection with exposure to violence. Other findings of the study were that in the beginning the boys had higher scores with regards to the social cognitions supporting aggression, levels which remained, while later the girls had similar levels of social cognitions in support of aggression.715 With regards to prior exposure to violence the boys only scored significantly higher on fantasizing about aggression, and once conclusion of the study in terms of gender was that “childhood exposure to violence predicts subsequent social cognitions about aggression and aggressive behavior for both males and females across Grades 1 to 6”.716 Furthermore it was concluded that aggression in all grades are stimulated by the exposure to neighbourhood violence and such exposure stimulates such social cognitions for children in later middle childhood that support aggression.717 It was found that in older elementary school children the social cognition of normative beliefs plays a significant role in mediating between exposure to violence and aggressive behavior. In conclusion while the exposure to community violence as reported decreased during these six years, the aggressive cognitions and aggressive behavior in the children increased.718 Furthermore, it was concluded that in urban and inner-city environments the children during the early elementary school years adopt behaviour patterns that most probably will include aggressive interactions. As the children age their cognitions regarding aggressive scripts in addi-

714 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1569 715 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1570 716 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1570 717 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1571 718 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1572; Th is confirms the result of other studies that have been carried out and which show that during childhood and adolescents aggression increase with age.

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tion change, and as they act in a more aggressive manner they also further form cognitions that approve of aggressive behavior.719 As children grow older the patterns of thought and action become more clarified and stable, and this reflects the importance of the individual’s self-regulating processes that stabilize over time.720 In this study, this was true for aggressive behaviour which across all grades and years continued. While aggressive fantasy and normative beliefs about aggression reflected high continuity over the grades and years of the children and increased with age, the social cognitions of the children were not as consistent over the years. Here the authors emphasize the need to when developing preventive interventions for children in elementary school to focus especially on how to influence the cognitive structures of the children that are developing.721 In terms of prevention the first thing to do is to have the levels of violence decrease not only in the neighbourhoods of the children, but in other environments as well such as at home or school.722 But since in reality so many children are exposed to high levels of violence on a continuous basis the authors said that it is “critical to recognize that it[violence] does have a significant and harmful impact on their development and contributes to the learning of aggression”.723 In finding ways to minimize the impact of the exposure to violence on behaviour and cognition, early interventions have been shown to be needed, and it is crucial here that children are given an opportunity to maintain a view that violence is something harmful and non-normative, as well as that they do not get used to violence.724 Furthermore, they argue that any intervention needs to teach the children nonaggressive scripts and be responsive to the reality of the environments the children in these kinds of neighbourhoods have to find a way through, as well

719 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1572 720 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1572 721 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1572-1573 722 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1574 723 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1574 724 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1574

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

as involving parents and other individuals. Also, other forms of violence that the children might be exposed to in addition to neighbourhood violence need also to be taken into account, such as exposure to violence in the family, in the peer groups and in school as these forms of additional violence exposure might have an additive effect on the behaviour and cognition of the child.725 In summary, there was a higher probability for the children who had witnessed more community violence to act more aggressively two years after the first study, and this was irrespective of their age.726 The children who were older, attending grades four to six, and who were witnessing community violence showed more aggressive behavior as well as more support for beliefs accepting aggressive behavior. In addition, these older children fantasized about aggressive acts more often, as a form of a coping strategy, energy and time they could have spent on more positive activities. As Guerra et al. argued, when a child regularly is a witness to serious violent acts, in order to minimize fear the child needs to acquire a certain form of coping strategy.727 Further, if a child spends a lot of time fantasizing about violent acts and thinks about violence as something acceptable, while this might help the child deal with having to witness violent acts on a regular basis and having to live in such an environment, in addition there is a risk that the child will view violence as something that is a regular part of his/her life which in turn might increase the aggressive behavior of the child.728 8.5.2.1.

The Risk of Children and Youth Using Violence Themselves

It is important to keep in mind when examining the risk of children/youth choosing to use violence themselves, that the preferable outcome of a social conflict situation is not necessarily the same for everyone.729 For instance for some youth what would be of main importance of a particular outcome would be to earn or 725 Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576, p. 1574 726 Summary from Child Development, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576 727 Summary from Child Development, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576 728 Summary from Child Development, Guerra, N. G., Huesmann, L. R., Spindler, A., Community violence exposure, social cognition, and aggression among urban elementary school children, Child Development, September/ October 2003, Volume 74, Number 5, p. 1561-1576 729 Huesmann, L. R., The role of social information processing and cognitive schema in the acquisition and maintenance of habitual aggressive behavior, in Green, G.

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to maintain the respect of their friends, however for other youths it might be only to find an end to the conflict.730 If a child or youth view the use of violence as something that would be doable for him/her, in that the child or youth would actually be able to fight, this child or youth in combination with “low perceived self-efficacy in pro social behavior” might choose to become violent.731 In turn if the same child or youth has low perceived self-efficacy for aggressive behavior instead, the child or youth might refrain from using aggressive behavior. It is imperative to recognize that when a person is acting aggressively, it is not only the society’s response to that behavior that will determine how this person will act in the future, this person’s future behavior is also very much influenced by how he/she has taken note of and understood the way society responds to aggressive behavior.732 Since in so many countries today where there is an armed conflict many children and youth are totally exposed to violence, and since there has been no intervention or poor intervention to stop the violence as it affects children and youth either by the government (where many times the government and government forces are behind many of the abuses) or by international actors one needs to ask what kind of message does the children and youth get from this lack of response? Monitoring and reporting will not be enough in these situations in order to affect their future behavior, since the abuses of the children and the violence they experience in the now will not stop as a result of that. 8.5.2.2.

When Does the Child or Adolescent View Aggression as Acceptable?

Much research in the US on urban inner-city youth has been conducted that supports the notion that a central mediating role between the exposure to violence and aggressive behavior are the cognitive factors.733 By being a witness to a and Donnerstein, E., eds., Human aggression: theories, and implications for social policy, 1998, p. 93 730 Huesmann, L. R., The role of social information processing and cognitive schema in the acquisition and maintenance of habitual aggressive behavior, in Green, G. and Donnerstein, E., eds., Human aggression: theories, and implications for social policy, 1998, p. 93 731 Huesmann, L. R., The role of social information processing and cognitive schema in the acquisition and maintenance of habitual aggressive behavior, in Green, G. and Donnerstein, E., eds., Human aggression: theories, and implications for social policy, 1998, p. 93 732 Huesmann, L. R., The role of social information processing and cognitive schema in the acquisition and maintenance of habitual aggressive behavior, in Green, G. and Donnerstein, E., eds., Human aggression: theories, and implications for social policy, 1998, p. 93 733 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, 2009, p. 896

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

violent act cognitive schemas can be triggered which function as the main filters or guides in helping the child find out how to behave in that particular situation. In this context, the normative beliefs of the child regarding to which degree, if at all, the child finds aggression to be acceptable is considered to constitute the most important fi ltering process.734 Self-schemas which include self-efficacy also factor into this process. It is the experiences that the youth have in their communities that provide the basis for these cognitive mediators. Concerning how youth decide to behave as a response to an event, in communities with high degrees of violence, the youth’s arsenal of responses/behaviours may be more aggressive, and a provocation might result in the youth not really thinking how to properly respond.735 This is in a context where the likelihood of finding a non-aggressive solution to the situation that would deter the aggressor might not be found. As McMahon et al. stipulate when developing programmes for the prevention of aggression and violence, in for instance schools, the type of environment within which the youth live needs also to be taken into account, which very seldom is being done.736 Most often such programmes focus solely on teaching cognitive behavioural skills to the youth, while McMahon et al. mean that for youth where violence such as shootings and gang activities is a daily experience in their neighbourhoods prevention programmes need to also address issues such as a “how youth can address, avoid or negotiate violence” in order to be able to simply survive in their neighbourhoods.737 The complexity of these kinds of issues is necessary to acknowledge they mean, and as a result in order to create better programmes for preventing violence, the social cognitive models which explain the processes involved in the development of as well as the increase of aggression also must take into account the role of the community.738

734 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 896 735 Huesmann 1998 in and McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 896 736 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 896 737 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 896 738 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive me-

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As has been noted self-efficacy is a cognitive factor that is part of the filtering process when assessing how to behave as a response to an event, whether to use aggression or not, and is more specifically “the belief in one’s own ability to achieve goals related to a specific situation”.739 Findings have provided evidence that aggressive youth’s levels of self-efficacy are higher than their non-aggressive peers in using aggressive behavior, and lower than their non-aggressive peers when it comes to being able to withdraw from a provocative situation.740 The link between the environment of the youth and the behaviour of the youth can be affected by the youth’s level of self-efficacy.741 Some efficacy beliefs are backed up by a specific environment in that some behaviours are encouraged by it. In this context, youth have different efficacy beliefs which most likely will result in the solutions to a certain situation also differing among them. A youth who is exposed to high levels of violence in his/her environment might develop a belief that aggression is acceptable behavior in many different situations, which might result in the youth not applying nonviolent solutions to a situation and not being able to develop enough confidence in his/her ability to control his/her own behavior which in turn leads to an increase of aggressive behavior in different situations.742 Empirical studies have found that cognitive factors mediate between retaliatory beliefs about aggression and aggressive behavior.743

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diator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 896 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 897 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 897 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 897 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 897 Zelli et al. (1999) in McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 898: The study includes in the term ‘normative beliefs about aggression’ both retaliatory and general beliefs, and uses the defi nition for ‘retaliatory beliefs about aggression’ as “beliefs that promote aggressive acts when

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

A study of young African American adolescents in inner-city communities in the US showed “that retaliatory beliefs about aggression mediated the relations between exposure to violence and self-efficacy to control aggression, yet general beliefs about aggression did not mediate this relation. Thus, exposure to violence led to beliefs that aggression is justifiable when provoked.”744 This study of young African American adolescents in inner-city communities in the US with a high level of violence showed that a process is triggered by exposure to violence that has considerable consequences for how youth think, feel and behave.745 McMahon et al. have found that in the cycle of violence victimization is a significant factor, which leads to a situation where in terms of prevention the issues that need to be prioritized include the reduction of violence, poverty, the drug trade and racism, improving community connections and infrastructures, as well as supporting positive youth development.746 The programmes for youth development need to have active participation of targeted youth, the support of the community and incorporate self-efficacy development which should result in the youth having more positive beliefs towards both themselves and other people. It has been found that teachers have reported less aggression by youth in school when youth have the support of their parents, teachers and peers.747 It has also been found that to be positively grounded in one’s own ethnic identity has resulted in only some beliefs in favour of aggression and not so many aggressive behaviours.748 Importantly the association between exposure to community violence and aggressive behavior can be lessened by programmes

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an individual is provoked”, and ‘general beliefs about regression’ as “beliefs that support aggressive acts, even if there is no provocation,” p. 896 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 904 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906 Benhorin & McMahon, 2008, in McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906 McMahon & Watts, 2002, in McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906

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that focus on reducing a person’s beliefs that retaliatory aggression is acceptable and which work to increase a person’s self-efficacy to control his/her aggression.749 The belief systems need to be dealt with not only on an individual basis but also through working to change the climates in those schools where aggression is accepted, and change eventual parental messages about using aggression if provoked, and address the street codes.750 Again, the realities of the environment in which at-risk urban youth live in, such as shootings, gang violence, burglary and police brutality, need to be acknowledged and factored into any programming, and skills in how to deal with these realities must be provided to the youth.751 Furthermore, McMahon et al. argue that issues such as the aggressive youth’s self-worth issues and problem-solving deficits also need to be included in such programming. Teaching effective problem-solving skills that will work in a particular environment is also essential as it has been found that coping strategies that are confrontational result in the exposure to increased violence.752 Finally, McMahon et al. concluded that the risk for aggressive behavior as a result of exposure to violence could be lessened by interventions for urban youth that address the retaliatory beliefs about aggression as well as the self-efficacy for non-aggressive behaviour (that is the intermediate cognitive processes).753 In terms of elementary school children’s normative beliefs about aggression and aggressive behavior, a study of children in 16 schools in low-income and high crime neighbourhoods in two cities in the mid-western US showed that the normative beliefs of children about aggression seem to constantly change during the early elementary school years as between the first and second grades the beliefs of

749 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906 750 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 906 751 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 907 752 Lochman & Dodge, 2004, in McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 907 753 McMahon, S. D., Felix, E. D., Halpert J. A., Petropoulos, L. A. N., Community violence exposure and aggression among urban adolescents: testing a cognitive mediator model, Journal of Community Psychology, Vol. 37, No. 7, 895-910, September 2009, p. 907

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

the children were not stable.754 Not until the fourth grade did a “moderate stability” begin to show. The study showed that when it comes to the approval of aggression, it is between the first and second grades that the largest increase has been detected.755 This finding reflects that one factor that contributes to children becoming more accepting of aggression with age is the socialization processes that the children go through during their earliest elementary school years.756 Children attending the first grades in urban high-risk settings, such as in this study, have to learn many new lessons regarding “how to behave” in order to be able to survive in an environment with much violence. With regards to the instability of the normative beliefs of the youngest pupils, the authors meant that the children’s later beliefs are predicted by their early behavior, but that “once their beliefs are crystallized, they become resistant to change and thus more stable and less predictable over time from previous behaviors. At that point, their beliefs predict their subsequent behaviors”.757 Based on the findings from this study it was found that “children’s normative beliefs about aggressive behavior are influenced by their own early social behaviors, become moderately stable in the early elementary grades, and exert a powerful influence on subsequent social behavior after that time”.758 8.5.3.

Resiliency in Children Symptoms communicate something about children’s efforts to come to terms with memories of violent death, humiliating detention, and constant fear, which were characteristic of their lives during the Intifada.759

754 Huesmann, L., R., Guerra, N., G., Children’s normative beliefs about aggression and aggressive behavior, Journal of Personality and Social Psychology, 1997, Vol. 72, No. 2, 408-419, p. 410, 417 755 Huesmann, L., R., Guerra, N., G., Children’s normative beliefs about aggression and aggressive behavior, Journal of Personality and Social Psychology, 1997, Vol. 72, No. 2, 408-419, p. 417 756 Huesmann, L., R., Guerra, N., G., Children’s normative beliefs about aggression and aggressive behavior, Journal of Personality and Social Psychology, 1997, Vol. 72, No. 2, 408-419, p. 417 757 Huesmann, L., R., Guerra, N., G., Children’s normative beliefs about aggression and aggressive behavior, Journal of Personality and Social Psychology, 1997, Vol. 72, No. 2, 408-419, p. 417 758 Huesmann, L., R., Guerra, N., G., Children’s normative beliefs about aggression and aggressive behavior, Journal of Personality and Social Psychology, 1997, Vol. 72, No. 2, 408-419, p. 418 759 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264

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8.5.3.1.

Resiliency Factors That Protect Children From Persistent Symptoms and Facilitate Good Adjustment in the Palestinian Context

A study was conducted of Palestinian children during and three years after the first Intifada in order to examine which factors contributed to resiliency and vulnerability in the children.760 The effects of the children’s cognitive capacity, like intelligence and creativity, their activities, traumatic events and perceived parenting were studied first in 1993 during the Intifada and then three years afterwards in 1996 with regards to any symptoms of post-traumatic stress disorder (PTSD), emotional disorders, neuroticism and on any effects on school performance at a time when the children experienced a more secure situation after the signing of the peace agreement by Israel and the PLO in 1993.761 For children in traumatic stress situations there are different factors that influence their levels of resilience in terms of whether they become strengthened or weakened.762 These factors include the children themselves, how their parents and families respond to them and to the traumatic events, and the social and cultural environment of the child. Children’s adjustment to traumatic stress is determined by their cognitive capacity and the coping strategies of the child, including emotional capacity.763 The younger the child is the more difficult it will be for the child to understand and process a traumatic event since the child’s cognitive and emotional capacity has not had time to develop fully yet. Factors assisting the child to understand why a traumatic event occurs include the child being curious, the child’s intellectual ability, and at what level a child can conceptualize ideas and events.764 These factors also assist the child in being able to be mentally active and to detach in a positive way from the traumatic event(s). It was found in the study that the more exposed the children had been to Intifada related events together with them having responded more passively to

760 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267 761 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 256 762 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 257 763 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 257 764 Apfel & Simon 1996 and Punamäki 1999 in Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 257

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

the violence, the more PTSD symptoms they had.765 Furthermore, the children who suffered from high levels of PTSD were found to view their mothers as very loving and caring towards them, while they did not view their fathers as loving or caring. Punamäki et al. concluded that among Palestinian children, active response to military violence, creativity and perceived good and harmonious parenting were resilience factors that helped them to cope with violence and to recover.766 The authors described PTSD to be “the incomplete processing of overwhelmingly painful experiences”, and that the PTSD “symptoms communicate something about children’s efforts to come to terms with memories of violent death, humiliating detention, and constant fear, which were characteristic of their lives during the Intifada”.767 This was consistent with the finding that the children with the highest degree of PTSD were the children who personally had suffered from violence during the Intifada. However the emotional disorders as perceived by the adults and reported by the children were the result of the characteristics of the child and family relations. It was found that those children who had actively participated in the Intifada, three years afterwards when it was a much safer environment had fewer symptoms of PTSD and other emotional disorders in comparison to the children who had been passive.768 However, the authors had found in a previous study that during the Intifada the children who had been active participants had instead exhibited the highest levels of psychological symptoms of all children.769 The authors meant that it was confirmed that the political activities of a child provide in very dangerous situations various “mental health functions” in contrast to what these activities would do in more secure situations, considering that the meaning of children’s political activities is of particular importance in the context of Palestinian nationalism. There was a double message transmitted by actively confronting the Israeli military during the Intifada, there was a danger to 765 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 260 766 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 767 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 768 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 769 Quota et al, 1995b, in Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264

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life as well as being admired as a hero. For the children who had been active during the Intifada, while very dangerous, after the Intifada it appeared that only the positive aspects of that experience occupied these children, because as a result of their participation the society and their families admired them, and they clearly thought that because they had been active during the Intifada, they had played a part in the national liberation.770 Importantly, the findings of the study showed that family acceptance played a significant role in that as a precondition for that Intifada activity would become a resiliency factor, and for children to be able to better adjust to the post-Intifada environment having healthy relationships with their parents was also a major factor.771 However, if the children perceived that there was a discord between the parents, especially when the mothers were loving and positive to them, and their fathers were perceived to be non-supportive and non-loving, then the children’s vulnerability to PTSD and other emotional disorders was particularly notable. Inconsistency of parenting may result in harmful effects of the child in three different situations including when in a case a child suffers from symptoms and emotional disorders, the mother is very loving and caring while the father does not show much affection, or when the inconsistency comes from “conflicting marital relations” such as that the parents do not agree on how to bring up their children, or in cases where the child exhibits grave symptoms shows preference for one parent in particular.772 Furthermore, with regards to the children’s cognitive abilities, their creativity had a favourable association with good adjustment in the post-Intifada period, while a child’s high intelligence did not.773 During the Intifada, a child’s creativity and high intelligence was not associated with psychological adjustment. However, interestingly at the time when it came closer to peace, for the children with high creativity the level of neuroticism decreased and their selfesteem increased.774 This points at the importance to integrate and balance chil770 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 771 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 772 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 773 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264 774 Quota at el. 1995 (b), in Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 265

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

dren’s cognitive abilities, intellectual and creative, with their emotional abilities so that they can develop their potential in these respects. The study showed that “if the children felt loved and accepted at home”, they more readily were able to attain their intellectual and creative potential. In an earlier study by the authors, it was found that the children during the Intifada could not anymore concentrate or perform as well, because of the traumatic events occurring during this period. However, at the same time there was a lot of pressure put on the children to get good grades, which reflects how much the Palestinian society values education, which is seen to compensate for the land losses and military humiliation experienced.775 Importantly, the study showed how flexible children are as it was found three years after the Intifada ended that when the circumstances become safer and more peaceful the children’s neurotic symptoms had begun to disappear and that it was possible to recover for the children who had been very traumatized during the Intifada years.776 Punamäki et al. meant that these findings corresponded with what they had found before, “that severe symptoms tend to fade over time when acute violence and danger are over”.777 This also shows the importance of having on-going peace negotiations that stabilize violent conflict situations and result in peaceful conditions. However, the study also showed how vulnerable children are to violence, as the exposure to violent events, including being a witness to violence, having lost a family member(s) and having been wounded, led to an increase of neurotic symptoms while the Intifada was on-going and three years afterwards these events were predicting PTSD.778 Importantly, the girls were found to be more vulnerable to PTSD symptoms compared to the boys, where the girls during the Intifada developed more symptoms whether or not they had been exposed to violent events, and the reduction of their symptoms were not as notable as for the boys .779 775 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 265 776 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 265 777 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 265 778 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 265 779 Punamäki, R-L., Qouta, S., El-Sarraj, E., Resiliency factors predicting psychological adjustment after political violence among Palestinian children, International Journal of Behavioral Development, 2001, 25 (3), 256-267, p. 264

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8.5.3.2.

Children and Perceived Parenting

In another study on Palestinian children 11–12 years of age from 1993, the intense military and political violence in the Gaza Strip and the prevailing atmosphere of suspicion made it impossible to for instance ask teachers and peers about a child’s social and psychological behavior.780 The purpose of the study was to examine “how family dynamics change due to traumatic experiences and children’s active political participation”, keeping in mind that as a result of intense political violence the children come to understand the inability of their parents to protect them, which Punamäki et al. calls a “parental tragedy”.781 Findings from the study indicated that the psychological adjustment of a child is associated both directly and indirectly by traumatic experiences, as “the more traumatic experiences a child had, the more they suffered from psychological adjustment problems”.782 Between traumatic experiences and psychological adjustment “two mediating paths” were established by the study, with the first being poorly perceived parenting which was increased by exposure to traumatic events and that this kind of poor parenting which involved punishment and rejection, strictness and control, lack of intimacy and love in turn worsened the psychological adjustment problems of the child. The second mediating path revealed that “the more traumatic experiences the children had, the more politically active they were, … and the more active they were the more they suffered from psychological adjustment problems”.783 In these cases the traumatic experiences of the children and their psychological adjustment problems were not found to be mediated by the intellectual, creative and cognitive abilities of the child itself. The girls had higher levels of resources, but not as much political activity as boys did, and when it came to parenting, the boys saw their parents as being more punitive, rejecting, strict and controlling compared to how the girls saw their parents. In sum it was found that the children’s psychological adjustment problems were di780 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 724 781 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 718 782 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 723 783 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 723

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

rectly and indirectly increased by exposure to traumatic events, and a mediating risk factor was poor perceived parenting and high political activity.784 It was found that the children’s psychological adjustment was significantly affected by intimate and loving perceived parenting, as it was suggested that affectionate perceived parenting mediated the negative effects that the traumatic events had had on the psychological adjustment of the children.785 When perceived parenting interactions were not included in the study, it was found that the children’s own resources were significantly decreased by traumatic events, and that the child had more psychological adjustment problems the lower the child’s own intellectual, creative and cognitive resources were. In this study it was found that the more children were politically active the more traumatic events they had been exposed to. The study showed that the political activities of the children were greatly associated with their psychological adjustment problems, and that their adjustment problems increased by being exposed to traumatic events.786 The study showed that perceived good parenting served a “moderating function” and helped protect the well-being of the children “by making them less vulnerable.”787 However, the children were inclined to view their parents as punishing and rejecting when their families were exposed to violence, loss and destruction. Poor parenting and children’s active political activity increased indirectly and directly the risk for the children’s adjustment problems when they were exposed to traumatic experiences.788 Importantly, the study showed that the intellectual, creative and cognitive abilities of the child had no mediating effects between traumatic events and their psychological adjustment. In other words, the children need their parents to function affectionately and be supportive of 784 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 723 785 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 724 786 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 724 787 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 788 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725

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them. Furthermore, it was shown that how children view the behaviours and attitudes of their parents towards them including their emotional expressions is negatively influenced by traumatic events, and “that poor parenting is, indeed, harmful to children’s well-being”.789 The children perceived their parents to be more punitive, rejecting and controlling the more traumatic events the children had been exposed to. Furthermore, the children exhibited higher levels of neuroticism and lower levels of self-esteem the poorer the parenting they were given. Parents everywhere are fully aware that they cannot sufficiently bring up their children in conditions of war and violence. Studies have shown that Middle Eastern parents have many times felt ambivalence, pain and guilt as regards having children grow up in conflict and violent settings.790 Many parents try to find a way to compensate their children for their hardship, where one study revealed that Palestinian mothers have taken pride in being able to protect the mental health of their children in the midst of violence, while at the same time feeling guilty if they did not think that they could provide their children with a sense of safety.791 Studies have also shown that Israeli parents have felt equally guilty about their own perceived inadequate parenting and also wanted to compensate their children from not having been able to provide them with enough safety and security. The findings of this study showed that good parenting cannot directly safeguard the psychological adjustment of their children, between traumatic events and psychological adjustment a direct link was established.792 It was shown that even if it is beneficial for the child to be provided with good parenting and for the child to stop engaging in political activities, nevertheless experienced personally traumatic events in war like losing a family member or becoming a victim to violence pose grave risks to the psychological well-being of the child.793 789 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 790 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 791 See in Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 792 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 793 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Furthermore, it was established that while important factors in the protection of children in conditions of war and political violence are family relationships and the behavior of the child, these factors are not enough in themselves to provide adequate protection as more than one mediating factor is required. The study further showed that children’s vulnerability can increase in traumatic conditions by poor parenting.794 The children’s own intellectual, creative and cognitive abilities become less strong as a result of traumatic events, and this led to their psychological adjustment problems intensifying when good perceived parenting was not considered. Furthermore, the political activities of the children were intensified because of being exposed to traumatic events irrespective of the quality of perceived parenting, but the children’s psychological adjustment problems were only increased by their political activity if good perceived parenting was not measured in with traumatic events. The children’s psychological adjustment problems were intensified by traumatic events irrespective of the quality of perceived parenting.795 This showed that even if the child’s parents were affectionate, wisely disciplining and forgiving, this kind of parenting could not directly protect the psychological adjustment of the children, by good parenting serving as a buffer between the negative outcomes of the traumatic events that the children experienced and the children themselves.796 The study showed that contrary to claims that in traumatic conditions it is a good coping strategy for children to engage in political activity, it was found that political activity instead was a risk to the psychological well-being of the child.797 As was found the children were “not saved” by their political activity which was increased by traumatic events, instead their psychological symptoms intensified as a result. Importantly, both with regards to Israeli and Palestinian children earlier studies have found that there is a link between active coping and traumatic

794

795

796

797

own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 725-726 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726

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experiences.798 Some children in certain circumstances, such as in Palestine, as a way of coping engage in active and what is considered heroic pursuits in order to ease a stressful situation, but instead they many times find themselves becoming “overwhelmed by the frightening circumstances”.799 Earlier studies by the authors showed that exposure to numerous traumatic events increased children’s concentration, attention and memory problems, however their intellectual and creative capacity were not negatively affected.800 This study showed that it was not poor parenting that led to their children becoming more politically active, but rather the traumatic events instead, and that this political activity was a risk to their psychological adjustment. The children’s adjustment problems in turn were increased by political activity in cases where affectionate parenting was not provided. As a result, the absence of wise and affectionate parenting “did not force children to ‘grow up too soon’ nor did it involve them in political fighting, but it made such involvement more risky as far as their well-being was concerned”.801 In the following section the issues of how to assist children in recovering from violence and war after the signing of a peace agreement when peace returns, as well as to what extent the violence experienced during the war still affects children after the signing of a peace agreement, were examined by Quota et al. with regards to the Israeli and Palestinian Peace Agreement of 1993 since as they explained there is not much research on these issues.802 This raises the issue that we cannot take for granted that children and adolescents only because a peace agreement has been signed will be miraculously healed from any emotional and mental health consequences from war, but that they instead might need help to recover, keeping in mind that issues that might have been hidden during the war, 798 Punamäki & Puhakka, Punamäki & Suleiman 1989 and Bat-Zion & Levy-Shiff 1993, in Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726 799 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726 800 Qouta et al. 1995, in Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726 801 Punamäki, R-L., Qouta, S., El Sarraj, E., Models of traumatic experiences and children’s psychological adjustment: the roles of perceived parenting and the children’s own resources and activity, Child Development, August 1997, Volume 64, Number 4, p. 718-728, p. 726 802 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1203

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

due to for instance having to focus mostly on surviving, might first come to the surface in conditions of peace. 8.5.3.3.

The Effects of Peace Agreements on Children, the Case of the Palestinian Children

A group of children in the Gaza Strip were first tested in January in 1993, which was in the last months of the first Intifada before the signing of the peace treaty between Israel and the PLO in September 1993 in Washington D.C., and then again one year later in January 1994, in order to assess the effect of the peace treaty on the psychological well-being of the children including their levels of neuroticism and self-esteem before and after the treaty.803 They were 11–12 years old at the time of the first test, and then one year older at the time of the second test. As Palestinian nationality was indicated in the agreement, many festivities followed and children in Gaza raised the Palestinian flag in many settings, and wore the flag on their clothes. With regards to neuroticism, the test demonstrated a “very significant decrease” in the children’s levels of neuroticism after the peace treaty, however there were no changes noted in the level of the children’s self-esteem either before or after the peace treaty.804 It was noted that “the more the children were exposed to traumatic experiences, the more they suffered from neuroticism after the treaty”.805 However, the children who engaged in the subsequent flag-raising activities to mark the peace treaty had lesser levels of neuroticism than the children who chose not to participate in those activities. There was only an increase in the levels of neuroticism for the children who did not engage in the flag-raising after the conclusion of the treaty. Concerning the level of the children’s self-esteem it was found that “[t]he more traumatic experiences children had during the Intifada, the lower self-esteem they had after the peace treaty”.806 But, children who raised flags after the signing of the treaty had higher levels of self-esteem compared to the children who did not participate in those festivities. From this Qouta et. al concluded that 803 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995 804 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1201 805 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1202 806 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1201

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for merely those children who were not raising flags were the traumatic events the children had endured during the Intifada connected to their low self-esteem.807 In turn, there were no variations in the levels of self-esteem for the children who had engaged in the flag-raising activities, in relation to how many traumatic experiences they had gone through. As a conclusion, Qouta et al. found that “[e]xposure to traumatic experiences decreased self-esteem and increased neuroticism even after the peace treaty, but only among children who refused to participate in the flag-raising festivities”.808 The study showed that the more a child had participated in the Intifada, the more traumatic experiences a child had been exposed to, and after the peace treaty, these children did not participate in the flag-raising activities as much as other children did.809 The children had higher levels of neuroticism the more they had been exposed to traumatic experiences, however these levels decreased if they participated in the flag-raising activities. Creativity in the children was shown to have many beneficial benefits for the children. The more creative the child was before the peace treaty, the less the levels of neuroticism the child had as a result of the peace treaty.810 In terms of self-esteem, children who were creative and had fewer traumatic experiences had the highest levels of self-esteem.811 For the passive children during the Intifada the traumatic experiences they endured led to lower levels of self-esteem. It was concluded that the traumatic experiences that the children had gone through during the Intifada still after the peace treaty strongly determined the level of neuroticism and self-esteem in the children.812 While children’s participation in the flag-raising activities was linked with low neuroticism and high self-esteem in the children, the traumatic experiences of the children during the

807 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1201-1202 808 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1202 809 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1202 810 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1203 811 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1203 812 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1203

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

Intifada still predicted the well-being of the children better than the flag-raising activities. As has been noted in an earlier study by Quota et al. the children who had suffered traumatic experiences during the Intifada also had higher levels of neuroticism as well as that these experiences had negatively impacted their cognitive abilities.813 The traumatic events during the Intifada had resulted in that many children experienced difficulties with regards to their psychological well-being, difficulties which were continuing post-Intifada, and now after the peace treaty, the study further concluded that the peace treaty alone did not alleviate these difficulties. Following the peace treaty the children continued to have high levels of neuroticism and low self-esteem the more traumatic events they had gone through at the time of the Intifada.814 In this context to participate in the flagraising activities assisted the children in relieving the negative consequences of the traumatic experiences that they had suffered. As a matter of fact, to take part in the flag-raising festivities had such an impact that it was those children alone who chose not to do this, who still were struggling with difficulties with regards to their psychological well-being which they suffered from as a result of the traumatic events they had endured.815 Such a connection between having been exposed to traumatic events and neuroticism and self-esteem could not be found in the children who engaged in the flag-raising festivities. 8.5.3.3.1. Why Did the Flag-Raising Activities Play Such a Role for the Children? In analysing why the flag-raising activities were such a positive factor for the psychological well-being of the children who participated in these festivities, Qouta et al. argued that only for the children who were in favour of the peace treaty, saw it as fair and acceptable as well as that they were able to express their political opinion and feelings as reflected in their participation in the celebrations did this peace treaty have a positive psychological effect.816 This needs to be seen in the context that the children had not been allowed to openly express their Palestinian nationality before as it was forbidden to even show the flag during the occupation. 813

Qouta et al. 1995, in Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1204 814 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1204 815 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1204 816 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1204

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At this moment after the 1993 peace agreement it was for the first time permitted for the children to express their nationality in a safe way, as well as that the agreement was a symbol for the hope for a better future which all contributed to the increased level of well-being in the children.817 In addition, for the children who participated in the festivities, they were also celebrating their achievement of their political goal of having contributed to the acknowledgement of the rights of the Palestinians which also was a factor in the increase in their well-being. Qouta et al. identified especially three factors that together could account for the decrease of neuroticism that was shown in some children as a result of the peace treaty, which were the ventilation of their feelings, the expression of their nationalistic affi liation, and the feeling of having reached one’s political goals.818 It was clear that it was because of the children’s own as well as their families’ political views that they decided whether the peace treaty was acceptable to them and whether they would engage in the flag-raising activities. With regards to the ventilation of feelings factor, this was related to the children’s explanations as to why they would or would not become engaged in the festivities, a mostly emotional decision, such as: “I feel happy because the army will leave”, “I felt proud because of peace”, and “I felt that I could get rid of the grief, because we will have a state of our own.”819 The children who did not chose to participate in the festivities had mostly political explanations, such as: “I refuse to accept the treaty, because we need the whole of Palestine”, “We like peace, but we did not need to form a friendship with Rabin, our enemy” and “I disagree with the treaty, because Jerusalem is still under occupation.”820 It was shown that those children who during the Intifada had been exposed to high levels of traumatic experiences to a lesser extent joined in the celebrations compared with the children who had been exposed to fewer traumatic experiences.821 With regards to the participation in the festivities boys and the girls 817

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Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1204-1205 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1205 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1205 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1205 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1205

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

participated to an equal degree, as did children coming from either the refugee camps or the towns, and the children’s creativity and intelligence was not found to be a factor. It seemed that the political and religious affi liation of the family of the child was the most important reason for the child to decide whether to join the festivities.822 At the time it was Hamas and Jihad, the Islamic groups, who were not for the peace agreement and who as a result chose not to join the celebrations, while the supporters of the PLO were for the peace agreement and joined the celebrations. At the time of the peace treaty the children’s neuroticism increased and their self-esteem decreased as a result of the traumatic experiences they had suffered during the Intifada.823 But, on the other hand, the children’s psychological well-being was kept intact by their creativity and their self-esteem was positively impacted by being active in the Intifada. The peace treaty resulted in a decrease of neuroticism in the children based on how creative they were, the more creative they were the greater the decrease in neuroticism, and after the peace treaty the more creativity the children showed the higher the levels of self-esteem they had.824 The results could also reflect that for the children who had participated the most in the Intifada, and as a result had experienced the most traumatic experiences, they might have felt that they had the most to lose. In the study also issues of being able to see the value of compromising and being able to compromise in order to reach a peace agreement, which in itself is a compromise, were highlighted. 8.5.3.4.

Israeli Children – Risk and Resiliency Factors

The risk factors contributing to the development of psychological symptoms in children after they have been exposed to or experienced traumatic events include the children’s own characteristics, their environments, and the traumatic exposure itself.825 On the other hand, other characteristics become resiliency factors 822 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1205 823 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1206 824 Qouta, S., Punamäki, R-L, El Sarraj, E., The impact of the peace treaty on psychological well-being: a follow-up study of Palestinian children, Child Abuse and Neglect, Vol. 19, No. 10, p. 1197-1208, 1995, p. 1206 825 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 279

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which protect against and alleviate the development of symptoms, and help the children to positively adapt to difficult circumstances.826 Certain factors that exist prior to the traumatic events might increase the risk for children to develop psychological symptoms, such as gender (female), young age, earlier psychiatric pathology, other traumatic experiences including domestic violence and divorce.827 Importantly, several studies have shown that to become displaced because of the destruction of one’s home in the context of armed conflict has been found to lead to the development of more severe psychological symptoms among children.828 Regarding social support as a protective factor, when the whole community and its social network breaks down as a consequence of conflict and violence, this has been found to be a key risk factor in the development of psychological symptoms in children.829 The involvement of the community serves to give “meaning to an event”, by providing “the parameters for expression and defines the collective or cultural significance”.830 The children’s “long-term adjustment, severity of symptoms and coping reactions” are significantly affected by the atmosphere in the family, family functioning and the symptomatology of the parent(s).831 Laor et al. point at that research shows that if a mother exhibits at the onset symptoms of distress and lacks adequate psychiatric functioning, these factors have a connection to her children developing more serious symptoms, and the distress 826 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 279 827 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 279 828 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280 829 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280 830 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280 831 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

symptoms and poor functioning of the mother could be a more accurate predictor of post-traumatic symptoms in the children compared to them being directly exposed to violence.832 A study was carried out in 2004 of 1,105 Israeli adolescents aged 12–16 years from six schools located in Tel Aviv-Jaffa (four schools, of which one was a mixed Arab-Jewish school) and West Bank religious settlements (two Jewish schools, one boys’ school and one girls’ school) with the purpose of examining their risk and protective factors in the development of psychological symptoms as a response to the violence and terrorism they had experienced as a result of the Israeli and Palestinian conflict.833 These locations had at the time experienced repeated terrorist attacks, and then especially the West Bank area. The children were assessed by symptoms (dissociation, grief reactions and post-traumatic stress), personal resilience (examples given were “confidence in my ability to direct my life, optimism concerning my future, ability to cope with continuous stress”), protective factors, risk factors, ideological willingness to sacrifice for the country, and family involvement in order to gain knowledge about the gravity of the symptomatology.834 When the study was initiated the adolescents accounted for their previous experiences of stressful and traumatic events which had included relocations, losses, hospitalization, divorce, birth of siblings, and having been exposed to trauma such as terrorist attacks, personal injury, seeing death or severe injuries, loss of friends and relatives.835 Questions they were asked regarding family functioning included whether they thought that their anxiety levels increased or decreased because of their parents, and how much their parents were involved in their lives. The students in the different schools did not exhibit the same levels of severity with regards to the three symptoms areas measured which were post trauma,

832 They refer to Laor et al. 1996, 1997, Rosenthal and Levy-Shiff, 1993 in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280 833 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 279-280 834 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 280-281 835 Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 281

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grief and dissociation.836 One Tel Aviv school with high socio-economic levels and the boys’ school in the West Bank showed the fewest symptoms, while the students in the mixed Arab-Jewish school were found to have the most severe symptoms. The boys’ school in the West Bank had the highest number of children with severe post-traumatic symptoms and the girls’ school in the West Bank had the lowest. But the boys’ school in the West Bank in addition had the highest number of children who reported the less severe symptoms. In terms of risk, the two West Bank schools and the Arab-Jewish mixed school exhibited the highest risk index. Also, it was found that the girls in the West Bank girls’ school had higher levels of personal resilience than the boys in the West Bank boys’ school and the children in the three Tel Aviv Jewish schools had. The youngest children showed the lowest level of symptoms, and the girls had more severe symptoms compared to the boys in terms of grief, dissociation and post trauma, but they showed equal perceived resilience levels.837 In terms of risk factors the study revealed a steady pattern that the more risk factors the child had the more their psychological symptoms increased, and that the children who exhibited five or more risk factors also had considerably more serious symptoms compared with the children who had two or fewer risk factors.838 Also, the more risk factors the children were exposed to, the more severe post-traumatic symptoms they exhibited, and this increase in symptoms was found to occur with each additional risk factor. Furthermore, the children’s perceived resilience level markedly decreased after four risk factors were present. When it came to family involvement it was shown that there was a link between more severe symptoms and having many discussions in the family concerning issues on terrorism and danger.839 However, there was no such link found between the level of family discussions of these issues and personal resilience in the children. Also, it was shown that those adolescents that wanted to have “much more family discussion on terrorism and danger” also showed more se836 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 281 837 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 282 838 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 282 839 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 282

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

rious symptoms compared with those adolescents who only wanted to discuss these kind of issues not as often or the same as they did before.840 In those cases where the parents were reported to raise the anxiety levels of the adolescents, these adolescents also exhibited more severe symptoms than those adolescents who said that their parents assisted them in decreasing their anxiety levels or had no effect on their anxiety levels. These adolescents who were helped by their parents were also found to have higher personal resilience levels than the other adolescents. Finally, adolescents showed more severe grief and dissociative symptoms when they had parents who were overinvolved in their lives.841 The children who did not have parents who were overinvolved not only had less severe grief and dissociative symptoms, but also had higher personal resilience levels. The Israeli children in the West Bank are daily asked to make sacrifices based on them being subjected to threats of terrorist attacks on an on-going basis as well as because of their ideology, and these sacrifices at times entail the lives of themselves and their family members.842 In terms of a child’s willingness to sacrifice, the study found that for boys their willingness to sacrifice was correlated to them having more severe post-traumatic symptoms, while for the girls their willingness to sacrifice was correlated with less resilience levels, more post traumatic symptoms and grief.843 Furthermore, it was found that the willingness to sacrifice was higher among those girls who had identified four or more risk factors compared to the girls with no risk factors. Also, for the girls with the lowest levels of resilience their willingness to sacrifice was higher than for the girls with the highest resilience levels. While for the boys it was found that the boys with the highest resiliency also had much higher levels of willingness to sacrifice than the boys with moderate resiliency levels.844 For the boys and girls who exhibited the severe symptoms of post trauma they also showed the highest level of willingness 840 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 282 841 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 282 842 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 283 843 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 283 844 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and

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to sacrifice compared to children with the lowest levels of post trauma, and this was also true for the girls only in relation to the gravity of the symptoms of grief. The more they themselves were suffering the more willing they were to sacrifice. The mixed Arab-Jewish school with 19 per cent of the student body being Arab students had the highest mean levels of symptom.845 The students that had the fewest symptoms went to one of the Tel Aviv schools and the boys’ school in the West Bank, but the boys’ school in the West Bank in addition had the highest number of children who had severe symptoms. For the adolescents in this study symptom development appeared to have been regulated by family factors, as children with more severe post-traumatic symptoms came from families where there was much discussion about terrorism.846 The children who wished that their families talked much more about terrorism as well as the children who had overinvolved parents also displayed more severe symptoms. In turn, the children whose parents helped lower their anxiety levels and who kept a proper balance of involvement had higher resiliency levels. The study revealed that the children had more severe symptoms and lower resiliency levels the more risk factors they were exposed to.847 It confirmed evidence that children’s level of vulnerability in conflict settings increases with stress factors that are unconnected and that add to the stress levels such as marital problems like divorce, or moving or domestic violence.848 Two factors distinguished the students at the Arab-Jewish school from the rest as they had the most severe symptoms, they came from lower social-economic circumstances and their school was mixed, having both Arab and Jewish students.849 Laor et al. argue that the social support and unity in the community might be affected by

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ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 283 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 283 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

it being a mixed population (in the context of the continuous conflict) as well as that there might be both mixed messages transmitted and different views on how to define terrorism.850 They continued stating that the girls from the West Bank girls’ school reported the lowest numbers of severe symptoms of all the schools and the highest personal resiliency levels, while this school was a school with an especially high risk index. They related these finding to another study which showed that the Jewish adolescents who resided in the West Bank had lower levels of PTSD symptoms than the Jewish adolescents who resided in Jerusalem had.851 It was discussed in that study whether this was due to the cohesiveness of and ideology in the communities not being the same. Laor et al. argue that ideology constitutes a central part in the social capital of a group, and especially in such circumstances when that group is under a constant existential threat.852 In turn, the willingness to sacrifice is positively associated with ideological commitment.853 The study found that in the West Bank Jewish schools the girls showed a higher increase in their willingness to sacrifice than the boys. This was especially the case for the girls who showed four or more risk factors, had the lowest resilience levels, and the highest levels of grief and posttraumatic symptoms, while it was for the boys with the highest levels of resilience and most severe posttraumatic symptoms that an increase in their willingness to sacrifice was detected.854 For boys and girls who are under a constant threat to their existence these find-

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ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Pat-Horenczyk (2005), in Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284

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ings show that there is a different pattern with regards to their willingness to sacrifice (whether or not that increases), in that the reasons for the boys’ willingness to sacrifice could be protective (high resilience) or vulnerability (severe symptoms) factors, while for the girls it was the girls who displayed the highest risk, post trauma, and grief symptoms, and the lowest resilience levels who had the highest willingness to sacrifice.855 The authors argue that boys may make sacrifices based on both high and low resilience levels depending on the situation and that their justification for these decisions is by referring “to ideology (the former) and/or as a result of vulnerability associated with high posttraumatic symptoms (the latter)”.856 However, ideology might serve two functions for the girls in the West Bank, either as being protective as they had the lowest number of cases of severe post-trauma, or ideology as risk-generating as they also had the highest levels of willingness to sacrifice.857 As was found, the girls with the lowest levels of willingness to sacrifice had the highest resilience levels, while the girls with the highest levels of willingness to sacrifice had the lowest levels of resilience levels. Further, the girls’ willingness to sacrifice had a correlation to grief in addition to risk and post-traumatic symptoms. Thus there are several factors determining whether an increase in the boys’ and girls’ willingness to sacrifice will transpire with differences among themselves. Laor et al. have in an earlier study reported that “symptomatic children may develop a negatively distorted image of the enemy”, and they argue in this current study that there is a risk that a “toxic cycle of violence” will be established if children combine such a distorted image of the enemy with an increased willingness to sacrifice.858 As they argue, it could be expected that there would be a lesser willingness to sacrifice as more loss and grief take place, and this especially among the girls who are not usually as openly involved in displaying violent acts

855 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 856 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 857 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284 858 Laor et al. 2004, in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

as boys.859 They continue by saying that their fi ndings in the current study show that when an ideology is considered justified, then combining this ideology with a continuous existential threat together with a feeling of needing to retaliate and take revenge, this might result in the girls choosing to engage in higher risk taking and accepting future loss.860 In this case, they argue that the girls might find meaning and purpose in the ideology and as such it could work as a form of protection, in that it would help improve their personal resiliency levels, protecting them from developing more severe symptoms.861 Laor et al. concluded by stating that acknowledging the importance of the personal resilience factor in children as a protector against the development of psychological symptoms, like this study has done, is of importance for the future development of intervention programmes for children and adolescents in armed conflict.862 Such programmes should include a focus on how to improve the resiliency traits in children and adolescents such as how to manage stress, how to provide better support to them, how to improve their confidence levels and sense of optimism with the ultimate aim of finding a way to protect children from developing psychological symptoms later on.863 8.5.3.4.1. Trauma in Israeli Children and Their Relationship to Parents A study conducted in Israel between 2007 and 2008 on risk and protective factors of preschool children such as on how toddlers aged 1–6 years and their parents are impacted by terrorism and war as well as on the relationship between parental and child distress was carried out in Sderot, Haifa and Kiryat Shmona (KS) in 859 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 284-285 860 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 285 861 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 285 862 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 285 863 Laor, N. and Wolmer, L. (2002), in Laor N., Wolmer, L., Alon, M., Siev, J., Samuel, E., Toren, P., Risk and protective factors mediating psychological symptoms and ideological commitment of adolescents facing continuous terrorism, the Journal of Nervous and Mental Disease, Volume 194, Number 4, April 2006, p. 285

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Israel.864 Between 2000–2008 more than 7,400 rockets had been launched from the Gaza Strip towards the area of Sderot in southern Israel, and during this time ten civilians were killed of which four were children, and more than 435 civilians had been injured.865 During the Second Lebanon war in 2006 about 4,000 missiles were launched into northern Israel, killing 52 civilians and injuring about 4,304 civilians, where Haifa and Kiryat Shmona were exposed to huge rocket attacks.866 The researchers asked: “What are the differences between ongoing exposure to terrorism and recurrent missiles attacks such as in Sderot and exposure to war such as in Haifa and KS?”867 The authors of the study, Pat-Horenczyk et al., also searched for answers to questions on resiliency in children such as: “How can we help parents? What are the protective factors for both parents and children?”868 The study found among the mothers surveyed in Sderot that 40.95 per cent of them had full PTSD, that in Haifa 18.18 per cent of the mothers had full PTSD, and that in Kiryat Shmona 16.49 per cent had full PTSD due to the armed conflict.869 About 32.5 per cent of the fathers surveyed in Sderot had full PTSD, while 6.25 per cent of the fathers in Haifa had full PTSD, and 11.11 per cent of the fathers in Kiryat Shmona had full PTSD. In addition, of the mothers surveyed in Sderot 30.48 per cent were found to have severe depression,15.24 per cent of the mothers surveyed in Haifa had severe depression and in Kiryat Shmona 11.11 per cent of the mothers were found to suffer from severe depression. For the fathers surveyed, it was found that 8.89 per cent in Sderot suffered from severe depression, 2.78 per cent in Haifa suffered from severe depression and in Kiryat Shmona 7.14 per cent of the fathers suffered from severe depression. Of the toddlers examined in these three towns, 44.7 per cent of the toddlers in Sderot had PTSD symptoms and 24.2 per cent had developmental problems,

864 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009 865 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009 866 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009 867 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009 868 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009 869 Pat-Horenczyk, R., Treating traumatized children: Hebrew University of Jerusalem, June 29, 2009, asp?PageId=338&lang=en, accessed August 20, 2009

risk, resilience, and recovery, www.traumaweb.org/content. risk, resilience, and recovery, www.traumaweb.org/content. risk, resilience, and recovery, www.traumaweb.org/content. risk, resilience, and recovery, www.traumaweb.org/content. risk, resilience, and recovery, www.traumaweb.org/content. risk, resilience, and recovery, www.traumaweb.org/content.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

16.2 per cent of the toddlers examined in Haifa had PTSD symptoms and 8.7 per cent had developmental problems, and in Kiryat Shmona 14.7 per cent of the toddlers examined had PTSD symptoms and 5.7 per cent had developmental problems as a result of the armed conflict.870 Of the toddlers examined in Sderot from 2004–2006, the PTSD symptoms they exhibited included refusal to sleep alone (40 per cent), trouble to fall asleep (25 per cent), intense crying (24 per cent), restlessness when separated from parents (18 per cent), child is fearful and anxious (18 per cent), waking during the night (17 per cent), and restlessness and inability to sit quietly (16 per cent).871 The PTSD symptoms in the parents were found to include impairment in enjoyment and leisure activities (33 per cent), startled response to noise (26 per cent), functional impairment at work (24 per cent), irritability and restlessness (22 per cent), trying not to think about the events (22 per cent), trouble with concentration (21 per cent), sleep difficulties (18 per cent), and functional impairment in household duties (12 per cent).872 In general the toddlers in Sderot had suffered the most of the three towns surveyed during the years of this study with them having the most externalizing symptoms including sleep problems, aggressive behaviour and attention problems, and internalizing symptoms such as feeling anxious and depressed, being emotionally reactive, having somatic complaints and being withdrawn.873 It was in addition found that in Sderot 58 per cent of the young children in families where one parent had PTSD or depression also suffered from PTSD.874 However, in families where the parents did not show any such symptoms merely 28 per cent of their young children showed PTSD symptoms. The most frequent symptoms the toddlers in Sderot were shown to have were: doesn’t want to sleep alone (60.31 per cent), can’t stand waiting (54.96 per cent), demands must be met immediately (53.44 per cent), wants lots of atten-

870 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009 871 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009 872 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009 873 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009, p. 34 874 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009, p. 41

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tion (50.38 per cent) and feelings easily hurt (43.08 per cent).875 These symptoms were also the most present in Haifa and Kiryat Shmona but in a different order: can’t stand waiting (41.30 per cent in Haifa, 41.84 per cent in Kiryat Shmona), demands must be met immediately (40.58 per cent in Haifa, 39.01 per cent in Kiryat Shmona), wants lots of attention (34.06 per cent in Haifa, 34.04 per cent in Kiryat Shmona), doesn’t want to sleep alone (31.88 per cent in Haifa, 32.62 per cent in Kiryat Shmona), and feelings easily hurt (31.62 per cent in Haifa, 34.75 in Kiryat Shmona).876 In the context of exposure to continual terrorism in Sderot it was found that there was a stronger connection between maternal PTSD symptoms and behavioural problems in preschool children, than between maternal depression or child exposure to trauma and behavioural problems in these young children.877 The researchers underlined the importance in any psychosocial intervention to address the needs of the whole community including both children and adults taking into account the psychosocial consequences on them as a result of the armed conflict as well as their resiliency levels.878 They emphasized the need to improve social support and develop local capacity with the aim of improving community resilience in an integrated way. 8.5.3.4.2. Ideology as a Protective Factor for Children in Israel A study of 385 Israeli Jewish children aged 10–13 years from six schools was carried out to find out if for children and adolescents who live in a context of political violence and war, a commitment to ideology as well as “making sense of war” constituted “protective factors”.879 Here the definition of ideological commitment for children in such a context was “a consistent belief in the justification of the na875 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009 876 Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content. asp?PageId=338&lang=en, accessed August 20, 2009, p. 36 877 Chemtob, Rajendran, Nomura, Brom & Pat-Horenczyk, Effects of maternal PTSD symptoms on the behavioral problems of Israeli preschool children exposed to recurrent terrorism attacks, submitted article, Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www.traumaweb.org/content.asp?PageId=338&lang=en, accessed August 20, 2009 878 Plenary III, Bi-National Dialogue: the Child’s Emotional Environment: The Role of Parents in Creating Safety; Pat-Horenczyk, R., Treating traumatized children: risk, resilience, and recovery, Hebrew University of Jerusalem, June 29, 2009, www. traumaweb.org/content.asp?PageId=338&lang=en, accessed August 20, 2009 879 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 56

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

tional war and the readiness to participate in it and to interpret its consequences in favorable terms, as well as a defiant stance toward the enemy”.880 The study looked at the children’s attitudes to war and peace, including glorification of war, patriotic involvement and prospect of peace, and at the political and everyday hardships such as war experiences, injury and loss, and poverty, and at the eventual psychosocial problems such as lack of support, sleeping difficulties, family problems and anxiety and insecurity.881 The study showed that ideological commitment was found to have a moderating and a protecting effect, with regards to anxiety and insecurity, depression and failure and social support.882 However, it also showed that ideological commitment served as a protective factor only with regards to the children who had been exposed to the lowest levels of war experiences.883 Further it was found that among the children who had weak ideological commitment, the social support for these children decreased when they had been exposed to injury and loss as a result of the war, and that this was also true in those cases where the children had experienced “very many” such injuries and losses. The children had stronger ideological commitment the more they had experienced political violence, and they had fewer psychosocial problems the stronger their ideological commitment was.884 It was also shown that for children with weak patriotic involvement, the children had an increase of psychosocial problems mostly when the number of the war experiences that they had been exposed to rose from “very few to few”, and where a reduction of such problems “over the many and very many war experiences” came into play.885 The reasons for this could be that the worst change for the child is that moment when the child has felt secure or relatively secure and loses his/her feelings of invulnerability, and/or that a certain sense of habituation sets in to a continuous threatening situation.886 In this study, neither the children who lived in a border town with high tension 880 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 56 881 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, Tables 1, 2, 3 882 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 62 883 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 62 884 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 64 885 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 62 and 66 886 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66

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nor the children who lived in a Jewish settlement in the West Bank with continuous tension had more psychosocial problems than the other children. The children in the study had strong cultural, nationalistic and traditional beliefs, and some also revealed a very strong sense of personal commitment as well as responsibility to the state of Israel to the point that they were ready to die for the state. Many of the children not only responded affirmatively to the question of whether it is an honour to die for one’s country but some of the responses reflected such a strong awareness that they could be asked to risk their own lives for their country. As if it was expected of them. Here are some examples of how the Israeli children responded in the study to the question on whether it is an honour to die for one’s country:887 –

–

–

Yes. Because our country is important, and many people have died for it. It is preferable that I die also, so that other people can have a State, and they do not have to live as nomads. (As an expression of cultural, nationalistic and traditional beliefs) Yes. In order to defend the state and the continuation of the next generation. If I die, my son will be there to continue the fight. (As an expression of one’s own commitment as a citizen to a threatened society) Yes. Because this country is ours, and nobody else has the right to touch it, and I also want to fight and to die for it. (As an expression of one’s own commitment as a citizen to a threatened society)

One boy, 11 years old, responded to the question as to whether it is good to die for your country:888 –

Yes. Because if we do not fight, we will then be attacked and will lose everything and have to go into a diaspora, and live like the Jews in Russia.

Studies of Palestinian children have shown similar results to the Israeli children in terms of whether ideological commitment serves as a mediating and protecting factor for the mental health of the children.889 These studies showed that the Palestinian children’s coping abilities and participation in the first Intifada increased when exposed to political hardships, however at the same time if their war exposure became too intense they still suffered from psychological symp-

887 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 65 888 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66 889 Punamäki & Suleiman, 1989, Qouta, Punamäki & El Sarraj 1995, in Punamäki, R-L, Can ideological commitment protect children’s psychosocial well-being in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

toms.890 As Punamäki argues in this study on Israeli children, for children living with political violence, ideological beliefs and active coping can be helpful, however at the same time it is important to understand that if the traumatic experiences of the child become overwhelming, the ideological beliefs and active coping skills of the child may no longer be adequate.891 As was found those Israeli children with a strong ideological commitment had low levels of psychosocial problems.892 This meant that the children “who glorified war, expressed unfailing support for their national cause, and were ready to join the fight” had lower levels of anxiety, insecurity, depression, and feelings of failure. In addition they had both more social support and fewer family problems compared to the children who displayed a weak ideological commitment.893 Both the boys and the girls in the Israeli study showed the same level of patriotic involvement, but the boys glorified war more and held more pessimistic views on peace between Israel and Palestine, and in addition the boys had experienced more loss and injury.894 However, the children expressed a conflicting dilemma between “basic human values of love and brotherhood and the patriotic demands of fighting the enemy and killing in war”, while at the same time they saw war in very simplistic terms, as children do, as something necessary in creating security and that the enemy is “rightfully” being punished.895 This dilemma has also been displayed by adult Israeli soldiers, for instance during the first Intifada when the concept of “shooting and crying” was discussed which was reflected by some Israeli soldiers’ feelings of shame and guilt over having shot at Palestinians who were demonstrating, and by Israeli soldiers who had been fighting in the Lebanese war in 1982 and who also took part in demonstrations for peace.896 For the children in this Israeli study to refuse to join the army and fight was not considered an option as this was a sign of weakness, which in turn was seen as related to the annihilation of the state, which in turn was connected

890 Punamäki & Suleiman, 1989, Qouta, Punamäki & El Sarraj 1995, in Punamäki, R-L, Can ideological commitment protect children’s psychosocial well-being in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66 891 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66 892 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66 893 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 66 894 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 67 895 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 67 896 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 67

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to the Holocaust.897 In this context it is important to note that those children in the study that did not have a strong ideological commitment were found to have higher levels of anxiety and insecurity, depression, failure, lack of social support and poor family relations than the children with a strong ideological commitment.898 However, there were limits as to how much a strong ideological commitment can protect a child from psychosocial symptoms in the context of war, since as long as the war experiences of the child was not too overpowering, the child was protected from developing high levels of psychosocial symptoms by his/her strong ideological commitment. Also, importantly for those children in the study who displayed defiant and aggressive attitudes towards the enemy, there was a strong connection found in connection to high levels of family problems.899 8.5.3.5.

Bushfires in Australia, the Impact of Life Events on Children and Their Parents

Two studies were conducted between 1983 and 1985 on the impact of the February 1983 bushfires in Australia on children aged 5–12 years.900 More planted forest was destroyed in one day than any other time, and many families lost their homes and 200,000 livestock was killed or destroyed. The studies were carried out eight and 26 months after the bushfires, and it was found that many children had increased levels of “emotional and behavioural problems” compare to two months after the bushfires.901 This was what was termed “a delayed increase” of the children’s emotional and behavioural difficulties that the disaster had originally brought about.902 However, it was also questioned whether further life events after the disaster could explain the higher levels of problems in the children. While the resulting trauma and hardship caused by the bushfires, which initially had caused the “emotional and behavioural problems” in the children, were significant, at the same time the trauma and hardship were not considered 897 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 67-68 898 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 68 899 Punamäki, R-L, Can ideological commitment protect children’s psychosocial wellbeing in situations of political violence?, Child Development, 1996, 67, 55-69, p. 68 900 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 677, 679 901 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 677 902 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 686

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

to be “an overwhelming cause of psychological disorder of the children”.903 This suggests that for a majority of children who experience a severe life event, they do not become devastated by it. However at the same time there were increased levels of trauma in some children, and additional life events had taken place for these children, a new sibling, parental marital problems and parental unemployment. However these other events could not independently explain the increase of the children’s “emotional and behavioural problems”, instead it was found that parental overprotection, paternal interfering in post-traumatic thoughts and unrepaired property damage as a result of the bushfires were associated with the continuance of the “children’s emotional and behavioural problems” eight to 26 months after the disaster.904 Since the only considerable increase was in the so called “parent Rutter score” in these three of the ten post-disaster groups of life events, one conclusion of the study was that “not all adversity is an inevitable cause of ‘emotional and behavioural problems’ in children”.905 At 26 months after the disaster, the problems that the children were dealing with were not directly affected by the subsequent life events, instead as McFarlane noted it was the adversity that the disaster resulted in which “served to maintain or exacerbate the parents’ post-traumatic morbidity” and as a consequence the “emotional and behavioural problems” of the children increased.906 An additional finding was that the children who had “emotional and behavioural problems” exhibited more compliant and constrained behavior than before, and were not overactive or antisocial, which led McFarlane to conclude that “the absence of normal playfulness may be as indicative of significant development trauma as high levels of antisocial behavior”.907 There are different factors that need to be taken into account and which could influence both individuals’ and communities’ responses to traumatic events. One such issue is that “a disaster affected group may rate the significance

903 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 683 904 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 685-686 905 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 686 906 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 687 907 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 687

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of life events differently from other populations.”908 Also, the study supported that “once a single event of sufficient intensity has been experienced, other events are relatively unimportant”.909 This study indicated that the continuous traumatic disaster related problems the children still experienced after 26 months might be reactivated by the adversity following such events, as their parents’ ongoing parental post-traumatic imagery and overprotection were linked to the life events following the bushfires. As was noted by McFarlane, “[i]n particular, life events after extreme adversity may serve to reactivate and prolong post-traumatic morbidity of those people exposed”.910 The study indicated that “parents who are psychologically distressed may be more likely to have adverse life events and experiences that will have an effect on their children”, and that for the child the determining factor for a disorder might be a psychiatric disorder in a parent and not “the life event itself”911 8.5.4.

The Terrorist Bombing 1998 in Nairobi, Kenya and Kenyan Children and Youth in 2010

In the August 1998 terrorist bombing in Nairobi, Kenya of the US Embassy and the Ufundi Cooperative building 252 people died, and many children lost their parents and are still suffering because they did not receive any counselling or help to deal with their loss or to understand what took place.912 They are struggling as young adults to come to terms with what they did not understand as children and it is only now as adults that they are beginning to understand what actually took place. A young woman, Yvonne Mutinda, who today is 18 years of age was six years old when her father died in the bombing, says that no one ever explained to her why he died and that she was still feeling very angry: “I am very angry. Sometimes I feel like everyone forgot about us,” and that she is “angry with the people who killed her father, angry with him for dying before she could know 908 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 680 909 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 688 910 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 688 911 McFarlane, A., Recent life events and psychiatric disorder in children: the interaction with preceding extreme adversity, J. Child Psychol. Psychiat., Vol. 29, No. 5, p. 677-690, 1988, p. 688, 689: This would be the same for an adult, but then as a result of a spouse’s or relative’s psychiatric disorder. 912 Muchiri Karanja, Forgotten children of the bomb blast, http://www.nation.co.ke, August 7, 2010

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

him better.”913 Another boy was five at the time when his father died in the bomb blast, and he, Charles Mugo Karanja, says that he had to grow up very fast because he needed to take on responsibilities like a man for the family as he was the only son. Neither Yvonne nor Charles got any counselling, and as another boy, Zachary Rungu, says “nobody bothered about us, it seems our voices were lost in the clamour for compensation and …”.914 The psychiatric social worker, Anthony Gitahi, confirmed the accounts of the children and says that “the only children who benefited from counselling were those that were slightly older, and in school. Nobody took care of the very young ones … As a result … whereas adults affected by the blast are well on their way to recovery the nightmare is just beginning for those that were too young, too naïve to grasp the full impact of the 1998 bomb blast.”915 As Yvonne explains, “I know I am supposed to forgive and forget, but I am just beginning to remember”.916 The children have struggled with their loss in a family environment where all have been grieving and where the surviving spouse has had to deal with her/his own loss and as a result has not always been able to be there for their grieving children. John Allan was very young when he lost his father in the bomb blast and says that he cannot remember anything from the time of the bombing and that all his information comes from second or third parties, or from television footage.917 His mother finds it too painful to talk about the memories and John says of his mother that “[s]he says it’s all in the past and she wouldn’t want to remember what happened … And when she tries, she breaks down midway and shuts down.”918 This also shows that it is the whole family that needs help and counselling to cope with their losses, and that many children have suffered in silence for 12 years and are alone with their questions and confusion.

913 914 915 916 917 918

Muchiri Karanja, Forgotten children of the bomb blast, http://www.nation.co.ke, August 7, 2010 Muchiri Karanja, Forgotten children of the bomb blast, http://www.nation.co.ke, August 7, 2010 Muchiri Karanja, Forgotten children of the bomb blast, http://www.nation.co.ke, August 7, 2010 Muchiri Karanja, Forgotten children of the bomb blast, http://www.nation.co.ke, August 7, 2010 Daniel Wesangula, New hope for 1998 bomb blast survivors, http://www.nation. co.ke, August 8, 2010 Daniel Wesangula, New hope for 1998 bomb blast survivors, http://www.nation. co.ke, August 8, 2010

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8.5.5.

The Role of Culture and Trauma Repression of suffering is one of the psychological mechanisms of denying it.919 A psychologically minded agenda can highlight the need for both preventive and curative laws that respond to children’s suffering.920 A children’s rights doctrine ‘can’ be responsive to children’s experiences. It is the aloofness of an intellectual frame of mind, which draws satisfaction from its own ability to philosophize and rationalize that, creates the risk of alienation of human rights advocates and scholars alike from the actual experiences of children.921

The critique of Western models of psychosocial interventions in war torn countries needs to be seen in the context that the fields of psychology and psychiatry for years denied the existence of trauma and PTSD.922 Dyregrov et al. argue that “[i]n no area is this denial more evident than when children are traumatized”.923 As they rightly argue, it took many centuries before the fact that children are physically and sexually abused became publically acknowledged around the world. Many studies have shown that the adult world, such as parents and teachers, have often underestimated how deeply and for how long children have been affected by war and other difficult events by not having talked to them directly about their thoughts and feelings.924 Dyregrov, Gjestand and Raundalen interviewed Iraqi children three times after the Gulf war in the 1990s about their war 919 Ronen, Ya’ir, Chapter 3, An introductory note on law’s responsiveness to the child’s suffering and the construction of a new agenda for children, What do we mean by suffering and responsiveness?, in Eds., Ronen, Y., Greenbaum, C., W., Chapter 3, An introductory note on law’s responsiveness to the child’s suffering and the construction of a new agenda for children, The case for the child: towards a new agenda, 2008, p. 40 920 Ronen, Ya’ir, Chapter 3, An introductory note on law’s responsiveness to the child’s suffering and the construction of a new agenda for children, What do we mean by suffering and responsiveness?, in Eds., Ronen, Y., Greenbaum, C., W., The case for the child: towards a new agenda, 2008, p. 42 921 Ronen, Ya’ir, Chapter 3, An introductory note on law’s responsiveness to the child’s suffering and the construction of a new agenda for children, What do we mean by suffering and responsiveness?, in Eds., Ronen, Y., Greenbaum, C., W., The case for the child: towards a new agenda, 2008, p. 42 922 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 135 923 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 135 924 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 135

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

experiences.925 They found that the children no longer talked to the adults about the intrusive images and thoughts that they had, as they either did not think that the adults understood them, or because the adults had said that they should forget about what happened to them. The adults had also been traumatized by the war, which they had a hard time coming to terms with, and this many times led to them being incapable of also taking in their children’s traumatic experiences which resulted in a “strong” denial on behalf of the adults with regards to the children’s situation.926 Another form of denial of trauma has been within the UN agencies and the NGO community, which Dyregrov et al. think reflects the need of the international aid workers, politicians and international community to protect themselves from feelings of helplessness, impotency and guilt that very often complex war situations give rise to.927 In their view “[s]ocieties lack the capacity to deal with the ramifications of the traumatic events they produce”.928 Nor have they been able to prevent these events from occurring. In this context they argue that some professionals from the psychological and psychiatric fields, while not intending to, have ended up giving credence to “the widespread denial of trauma in children” as a result of war.929 This denial, they mean, leads to a situation where adults are being prevented from taking responsibility for addressing the children’s psychosocial needs, a responsibility which is also provided for in the UNCRC Article 39. In this context they argue that if it is possible for the international community to claim that children do not become traumatized by war, and that children’s emotional hurts are to be healed by their culture’s own natural healing systems together with the resilience of children alone, as a result the international community will not have to take any responsibility for the recovery of children since there is nothing to heal/address and as a consequence the international community does not have to carry any guilty feelings either.930 There has been a critique that Western models for treating victims of trauma in war-afflicted societies are not adequate, and that Western psychosocial interventions are not the best way to help the children recover emotionally and men-

925 Dyregrov, Gjestad, Raundalen in Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 135 926 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 927 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 928 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 929 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 930 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136

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tally from war.931 This Dyregrov et al. believe is another form of denial of trauma, and especially with regards to the traumatized children.932 Study after study in this book shows that children traumatized by war suffer from the same symptoms of PTSD and other psychological symptoms irrespective of from where they come, which cannot be explained away by researchers having “found just what they were looking for” as some have argued.933 Instead professionals with much experience in providing interventions for traumatized children in war-torn societies have worked to familiarize professionals within different UN organizations and NGOs with trauma concepts in order to raise awareness of and enhance the understanding of the effects of conflict on children as well as adults all over the world.934 The critique has also focused on it not being feasible to apply individual one-to-one psychiatric therapy sessions and a medical approach to psychosocial interventions in war torn societies, however this has been seriously questioned by Dyregrov et al. who argue that they are not aware of any agency that would use such an approach.935 Instead they argue that professionals with experience in trauma have been advocating for using demedicalized methods, which has not been the approach of the psychiatric tradition in for instance the Middle East and Africa where a medicalized approach has been the most common. The approach that they and other professionals have taken is not to use a therapy model in situations where a large group of people have been “exposed to traumatic events”, but instead to apply their knowledge on trauma and the kinds of methods that have been found to lessen trauma and to incorporate “existing cultural and social traditions” into these methods, and present them in for instance schools, kindergartens and orphanages.936 Agreeing with others they argue that the social context within which trauma occurs needs to be taken into account, including the political system which can be a cause of violence, which an individually centred approach would ignore. The experience of Dyregrov et al. is that children can be helped and are being helped by integrating the knowledge they have about trauma with the local cultural healing mechanisms, and adapting Western meth931 See for instance Bracken, P. J., Giller J. E., Summerfield, D., (1995), and Hundeide (1995), in Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 932 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 136 933 Bracken, P. J., Giller J. E., Summerfield, D., Psychological responses to war and atrocity: the limitations of current concepts, Soc. Sci. Med. Vol. 40, No. 8, p. 10731082, 1995, p. 1076 934 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 137 935 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 137 936 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 137

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

ods on trauma to the local culture and the culture’s natural healing traditions.937 This approach requires that foreign professionals work directly with local and national professionals to ensure that the best possible method is used in light of the local cultural and social context. Dyregrov et al. points out that there are times when no healing or coping mechanisms in a society are valid any longer as a result of the upheaval of war, and that it is in those instances the denial of trauma as well as repression are many times employed as a means to deal with the experiences.938 It is possible at times to set up new societal means of healing and coping, such as the “week of expression” that was established by UNICEF in the aftermath of the genocide in Rwanda in 1994 into schools, orphanages and centres.939 They mean that one needs to stop and think about the fact that culture is not always something positive, that just the opposite, culture many times has not been able to stop for instance the massacres that took place in Rwanda and Burundi.940 To become too culturally sensitive has led to a disregard of the denial of children’s trauma that exists in many parts of the world. As they argue with respect to the massive upheavals and the magnitude of the violence that people experience during some wars, the society and its culture will be required to find new ways to deal with the experiences from such a war because it has not had to deal with these particular events before.941 It can be helpful in these situations to introduce “new trauma knowledge” in order to help individuals fi nd an explanation as to how they are reacting as a consequence from different war events. As Dyregrov et al. argue there are in almost all cultures in the world different views on whether children should be told everything or anything at all about a traumatic event or whether they are allowed to talk about their feelings regarding a traumatic event, and they mean that this is a form of adult denial of children’s trauma.942 For instance in Iraq, Dyregrov et al. found that the mothers were “much more” in favour of discussing difficult war experiences with the children compared to the fathers. Dyregrov et al. do not advocate using “Western methods of intervention and trauma therapy” to help traumatized children heal after war, instead it is the 937 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 137 938 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 138 939 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 138 940 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 138 941 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 138 942 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Traumatology, Vol. 8, No. 3, September 2002, p. 138

Is the culture always right?, Is the culture always right?, Is the culture always right?, Is the culture always right?, Is the culture always right?, Is the culture always right?,

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use of Western trauma knowledge of how people are being affected by traumatic events and losses that can be useful to apply.943 They mean that since individual treatment is not possible in many war torn countries, even the diagnosis of PTSD might not be useful in those countries. They argue that for instance in Rwanda to have conducted therapy for individuals and families based on Western models after the genocide would have been “unwise, unethical and impossible”.944 In Rwanda after the genocide there were only very few mental health workers left, and in combination with the historical tradition of Rwanda and the extent of the war events, Western methods of intervention were unthinkable to use. However, the use of knowledge of trauma and of different self-help methods can be very useful to help decrease the stress levels among children in war, such as writing, dancing and other comparable methods.945 How trauma victims express symptoms in different cultures may not necessarily be that different from one another, however what is being viewed as traumatic differs in different cultures.946 For instance a study in Tibet showed that the most distressing event was to have witnessed “the destruction of religious signs”.947 As Dyregrov et al. explain it is the individuals who experience trauma even if it occurs in a cultural context, however the long-term trauma reactions are influenced by the cultural context.948 Traumatic after-reactions and grief reactions can be affected by cultural belief systems and practices, and especially trauma reactions such as avoidance and numbing.949 For Western practitioners the different somatic expressions of distress in different cultures needs to be examined, as for instance some expressions of bereavement that are deemed normal in a specific culture might lead a Western practitioner to believe that these are symptoms of PTSD.950 A local healer might be able to address such issues in an expedient and positive way in such cases, while Western methods regarding healing only can work as a supplement to local healing practices. However, on the 943 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139 944 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139 945 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139 946 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139 947 Terheggen, Stroebe, Kleber 2001, in Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139 948 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 139-140 949 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 140 950 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 140

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

other hand, Dyregrov et al. have held a training course for healers where training on how to prevent healers from blaming the victim was taken up, as healers have been found to regularly blame the victim if the person suffering from distress is not showing any signs of recovery.951 They explain that the models that are being used to help reduce the trauma reactions in children traumatized by war are psychosocial assistance models that include mass outreach and the use of local cultural healing practices.952 With regards to the issue of whether it is in the best interest of the child to be able to talk about their most traumatic experiences during the war, it has been found that if it is not accepted by the adults for the children to talk about traumatic events this many times leads to the children’s problems persisting.953 An additional issue is that to let the children be heard and to learn about their experiences has the potential of getting politicians and organizations aware of the situation for children and hopefully making it possible to better assist the children.954 As Dyregrov et al. remind us “[c]ulture is not static”, but is always changing and influenced by other cultures in turn.955 In situations where there are negative consequences from how a given culture is being applied to children, as some traditional practices of culture are harmful to children, change of these cultural aspects and practices needs to take place.956 As Dyregrov et al. state, “[w]e should never forget that history repeatedly has shown that we as adults have overlooked, disregarded and denied the pain and suffering of children”.957 8.5.5.1.

Discussion

The fact is that there is not very much protection of children in war and they are often totally exposed in such situations, so even if one would not want to see their vulnerability that this exposure gives rise to, it is a fact that the different members of the international community have so far not been able to protect the children 951 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 140 952 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 142 953 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 141 954 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 141 955 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 142 956 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 142: See also as an example the work of the Inter-African Committee for Traditional Practices, www.iact.org 957 Dyregrov, A., Gupta, L., Gjestad, R., Raundalen, M., Is the culture always right?, Traumatology, Vol. 8, No. 3, September 2002, p. 142

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in war zones which has resulted in all the suffering we are witnessing. Maybe that is one reason to why some confuse vulnerability of children with that there would be a lack of acknowledgement of the resiliency of children, in arguing that children are not vulnerable, but strong and capable. It is correct that children are strong and capable and possess much resilience, which results in so many children surviving war, but this knowledge about and acknowledgement of their strength and resiliency should not be used in order to deny their vulnerability caused by exposure to a war zone, as it is not the same thing. One could also argue that the local cultures of war-torn countries have not been able to prevent or stop grave human rights violations and atrocities from occurring, including child soldiers, sexual violence against children, killing and maiming of children, children becoming orphaned by war, street children, the destruction of infrastructure including the homes and schools of the children, lack of immunization and health care for the children, poverty that requires children to work, early child marriages, cutting off of boys’ genitals, FGM, detention of minors and lack of education. How then could one expect local cultural traditions alone to address and help heal deep-seated trauma? How could one not expect at a minimum that the members of the international community who have not themselves experienced the war be at least a bit sensitive to other people’s suffering and understand that other people are not machines and do get affected by abuses committed against them and their loved ones, and that they will need assistance in recovering from their trauma? There is a level of insensitivity towards other people’s suffering that is outrageous, and it is not only because of issues of guilt on behalf of the international community in denying trauma which explains part of it, but also the fact that when one deals with very emotional and upsetting situations it is impossible for the responder not to have to deal with his/her own emotional issues which will inevitably make themselves known. If that person has not dealt with his/her own issues, that person might very well complicate the situation by mixing the response with his/her own unresolved issues by not being able to identify who is who and who is the real victim, and thus exacerbates the situation for others. In these cases it might actually be best to ignore the fact that other people might have trauma that needs to be dealt with. Another issue is as regards the international community the lack of knowledge of other people’s cultures as some practitioners have never really had to learn about or take into account other people’s cultures in their work. Having to take into account other people’s cultures might be something very new and exciting. This fear of not being culturally sensitive enough that some experience has led to the cultural correctness that now seems to have followed political correctness, and one needs to ask oneself whether this is really helpful. It is important to embrace and learn about other cultures but not to confuse differences in culture with the fact that people will still need help with their suffering as we are all human beings with emotions even if we come from different cultures. Another issue is that some professionals, such as psychiatrists or psychologists, do not always have much knowledge of war and conflict issues in general, or about the causes of

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

conflict, and therefore some psychosocial writings and interventions reflect this lack of knowledge. The problem is that the sufferings people are experiencing do not take place in a vacuum from the causes of war or from the dynamics of war, and therefore the way some practitioners approach their interventions might not be sufficient responses. There is even more need to examine trauma reactions in countries where the culture emphasizes the denial and avoidance of traumatic events, since many people including children might suffer in silence. This needs also to be seen in the context that in authoritarian regimes with no opposition facts regarding human rights abuses and atrocities are always denied, and many who attempt to bring these abuses to the attention of the public are most often harassed by the regimes and either killed or imprisoned with silence and pain following. Furthermore the concept of the human rights of children and children to be viewed as subjects of rights are many times sorely lacking. Other reasons why there have been such suspicions with regards to the provision of mental health care in conflict and other emergencies and its acknowledgement are that many view these issues as too difficult and complicated to understand, which also needs to be seen in the context that in many countries all over the world mental health issues have been seen as something that is taboo and should not be talked about too much and hidden away instead. Furthermore it was shown in a study of conflict in 90 pre-industrial societies that in cultures where violence against children is accepted and where children are regularly abused either physically or emotionally or being denied affection, extremely intense violence is more likely to occur.958 Here it was shown that the intensity of a conflict, as understood as for instance “the degree to which conflicts breed rage and violence”, is affected by psychocultural factors.959 Factors that Smith has argued contributed to that the genocide in Rwanda in 1994 could be carried out included authoritarianism in child rearing and the anomie of the youth in the urban areas who did not have any jobs.960 Other factors he identified were propaganda, sexual projectivity and aspects of traditional religion.

958 Ross 1993 in Smith, D. N., The psychocultural roots of genocide, legitimacy and crisis in Rwanda, American Psychologist, July 1998, Vol. 53, No. 7, 743-753, p. 751 959 Ross 1993 in Smith, D. N., The psychocultural roots of genocide, legitimacy and crisis in Rwanda, American Psychologist, July 1998, Vol. 53, No. 7, 743-753, p. 748 960 Smith, D. N., The psychocultural roots of genocide, legitimacy and crisis in Rwanda, American Psychologist, July 1998, Vol. 53, No. 7, 743-753, p. 750

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8.5.5.2.

Cultural Aspects and the Process of Cultural Disintegration Medicine and anthropology are still too stunned today by having opened their eyes to the reality of the effects of trauma on individuals and communities to make a definitive link.961

Considering situations such as armed conflict deVries has importantly noted that “[w]hen the cultural defense mechanisms are lost, individuals are left on their own to achieve emotional control”, which needs to be acknowledged.962 In times when culture breaks down through social upheaval, such as because of civil wars and displacement, culture might no longer be able to provide identity and group belonging to its population and as a result “new or no social forms” might replace the former traditional culture.963 Under such circumstances many times new negative social forms emerge as manifested by for instance different warlords and gangs, and when warlords and gangs as new social forms take the place of the traditional former social forms in the context of conflict and upheaval, they emerge with the purpose of establishing a new sense of “order from emotions through violence and aggression, and in particular to deny anxiety and grief”.964 How the impact of cultural disintegration and the shock such disintegration generates and what it means at individual and social levels is not yet well understood in terms of how it forms identity and the sense of where people belong.965 DeVries means that “[w]hen cultural protection and security fail”, the problems of the individual need to be seen as being proportional to the disintegration of the culture.966 When a cultural vacuum is being created by war and social upheaval, people’s sense of vulnerability takes many forms such as that “[p]aranoia substi961 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 408 962 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 407 963 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 407 964 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 407 965 The impact of trauma on several levels in a society, and the need to make a link between culture and the individual in this context, see in deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 407 966 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 408

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

tutes for trust; aggression replaces nurturance and support; identity confusion or a negative identity substitutes for a positive identity”.967 In such environments the social bonding that takes place is at times in the form of regressing to nationalism and tribalism, which makes it possible for the individual “to deny the experienced losses or to defend themselves against expected additional losses”.968 The situation for people is made worse by the physical exhaustion and fatigue of the people in the context of war, and thus there are times when the requirements for upholding individual support and social resources cannot be met by culture as it will not be enough.969 Culture provides identity, predictability, resources and order, and when in times of war and upheaval the habitual patterns of grieving and medical and social systems that before have been adequate to alleviate the events and stress of life in the normal settings become inadequate, the individual is on his/her own.970 In these situations the culture can no longer provide relief and order to the individual. In some way trauma according to deVries results from “the severity of the stress and the supportive capabilities of the environment” combined.971 The various stages of trauma (before, during and after) also correspond differently to when the psychological and cultural explanations are to be applied. The immediate reactions to a trauma correspond with the psychological explanations, and the post-traumatic reactions relate to the process of recovery and it is at this stage that the cultural and social explanations become useful and relevant.972 As has been mentioned before, it is not possible for culture to prevent genocide, massacres or war, or take the edge off or alleviate “the immediate physical power of violence” or “the emotional shock of betrayal”.973 Culture can 967 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 408 968 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 408 969 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 408 970 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 409 971 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 409 972 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 410 973 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and

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work to increase resiliency before traumatic events, and to, after such events, validate experiences and serve to restitute and rehabilitate individuals and society.974 In the post-conflict period the cultural structures that still exist and the cultural rituals and customs should be used to give order to people’s emotions and reestablish their sense of identity and control so that people will find a way to adapt to the new circumstances.975 This and any intervention should be done with the aim of assisting people in re-establishing order and continuity to their lives and “to provide help with ordering emotional reactions, social relationships, and resources in response to the initial shock, recoil, denial and anger”.976 These types of interventions may buffer against regressive tendencies and psychopathological processes that would negatively provide a recourse from trauma.977 For a person to lose his/her cultural patterns, identities and relationships makes it difficult to predict life, and a period of grieving takes place in normal situations of stress to process the loss, while when trauma is present the trauma triggers additional patterns at the individual and group levels.978 These patterns include at the group level more conservative inclinations such as towards ethnicity and at the individual level psychopathological reactions such as depression, paranoia and aggression.979 De Vries means that culture serves as protection against these types of patterns, and that when culture has disintegrated there is a great risk for loss, regression and harm to take place as culture no longer functions as a protective means.980 He also means that to gain more knowledge of the link between culture and trauma and how they interact would bring a greater unsociety, 2007, p. 410 974 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 410 975 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 410 976 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 410 977 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 410 978 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 411 979 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 411 980 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 411

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

derstanding of the different “causal and protective factors that result in traumas being endured, succumbed to, or recovered from”.981 8.5.5.2.1. Ethnocultural Aspects of Posttraumatic Stress Disorder Marsella et al. argue that they do not know of an ethnocultural setting where it would not be possible to diagnose PTSD symptoms, but that the rates of prevalence of such symptoms differ depending on the ethnocultural setting itself.982 They mean that in order to improve the diagnosis of PTSD, cultural meanings and concepts of factors such as distress and personhood and trauma need to be properly examined, and that the different PTSD symptoms need to be understood in the given ethnocultural context so that interventions can be carried out in relevant ways.983 Further, they have also pointed out that collective and individual trauma are not exclusive from each another, and that an individual can suffer from PTSD at an individual level and experience the social distress felt at the community and national level of sociopolitical events (including war, genocide and disaster) at the same time.984 Marsella et al. say with regards to PTSD symptoms of re-experiencing and arousal symptoms that there are indications that these symptoms have a biological basis, but that this does not seem to be the case for avoidant and numbing symptoms.985 This has led to that Marsella et al. thinking that culture has the potential of influencing this group of symptoms, the avoidant and numbing symptoms, the most.986 They argue “that ethnocultural settings in which avoidant and numbing behaviors are more common expres981 deVries, M. W., Trauma in cultural perspective, Chapter 17, in Van der Kolk et al., Eds., Traumatic Stress, The effects of overwhelming experience on mind, body and society, 2007, p. 411 982 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 531 983 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 531 984 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 533 985 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 534 986 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J.,

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sions of distress are those ethnocultural settings in which PTSD prevalence rates will be the highest”.987 Marsella et al. also point out the importance of identifying symptoms of posttraumatic distress that are more frequent in a specific ethnocultural setting, so that they will not go unnoticed and thus untreated.988 They give as examples somatization and dissociation symptoms which for instance are PTSD symptoms that have been frequently observed in individuals that come from other cultures than from the West (here they make reference to for instance Kirmayer). They argue that “[i]t is apparent that norms within certain non-Western cultures regarding the nature of personhood and religious practices may increase the likelihood that dissociation will be used as a coping strategy in these ethnocultural settings”.989 In this context Kirmayer has observed that “cultural variations in the structure of narratives and in the social construction of memory also may contribute to dissociation both by determining the types of gaps in experience and behavior that are acceptable and explicable to others and by altering the deployment of attention in specific contexts, hence influencing dissociation at its roots in mechanisms of attention”.990 As Kirmayer also notes, it is important to take into account the social and cultural contexts in which distress occurs and is experienced because these contexts make sure “that trauma, loss and restitution are inextricably intertwined”.991 The complexity of these issues require that much

987

988

989

990

991

Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 534 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 534 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 534-535 Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Ethnocultural aspects of PTSD: Some closing thoughts, Ch. 21, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 534 Kirmayer, Laurence, J., Confusion of the senses: implications of ethnocultural variations in somatoform and dissociative disorders for PTSD, Ch. 5, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 142 Kirmayer, Laurence, J., Confusion of the senses: implications of ethnocultural variations in somatoform and dissociative disorders for PTSD, Ch. 5, in Marsella, A., J., Friedman, M., J., Gerrity, E., T., Scurfield, R., M., Eds., Ethnocultural aspects of posttraumatic stress disorder, Issues, research, and clinical applications, October 2001, p. 150

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

more attention is being paid to how children and adults in different settings are being affected by trauma caused by war. 8.5.6.

The Inter-Agency Standing Committee Guidelines on Mental Health and Psychosocial Support in Emergency Settings

Suggestions to make the Inter-Agency Standing Committee (IASC) Guidelines on Mental Health and Psychosocial Support in Emergency Settings more workable include first of all the importance of recognizing the need for the application of a public health perspective to emergency settings.992 Yule points out that when the Guidelines were drafted there were not any “mental health professionals bodies” contributing.993 This he means reflects the division that exists between the NGOs and the mental health professionals in the field, and that these Guidelines mirror that separation. In emergency settings the NGOs arrive first to provide assistance and the mental health workers afterwards with not much coordination of their work as well as that mental health work has often been considered as expensive and not always as useful by humanitarian actors when whole communities have been affected by war or disasters.994 There has been a misconception that mental health work would mainly only be provided for a few individuals and not for the larger group of people who have all been equally affected by the disaster. It is within this context that Yule underlines the need for the application of a public health perspective and a more evidence approach to the intervention which requires specially trained public health workers.995 Therefore training of both NGO workers, international and local, individuals in the community, as well as therapists in public and mental health specifically should be a priority. If an evidenced approach is not applied, then there is a risk that only opinions and assumptions will guide the interventions and not facts, and the sources for these opinions and assumptions need to be considered. Furthermore, Yule means that the Guidelines underplay “the concepts of ‘trauma’ and ‘traumatic stress’”, even as “early group interventions” have been proven to be an effective remedy.996 As Yule argues people who are exposed to traumatic events will have traumatic reactions, but although not all people become seriously traumatized, many

992 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251 993 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 248 994 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 248 995 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 248-249 996 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249-250

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people do develop problems as a result.997 These include problems with adjustment, learning and adaptation, and especially with regards to children these problems can lead to the children having difficulties in school and with peers. Yule means that many NGOs ignore the effects of trauma, and with regards to the issue of providing education in emergencies, which many NGOs are now involved with, the trauma reactions of children should preferably be addressed from the start and not later, as otherwise the capacity of the children to enjoy learning could be impeded due to the lack of recognition of the trauma reactions in the children.998 As he says there is a recognition in the Guidelines that following a disaster many children have concentration problems and learning difficulties, but instead of addressing these stress reactions, the Guidelines stipulate that the schools should provide shorter lessons.999 Yule continues that poor concentration is a form of a reaction to stress that is not difficult to remedy through proper support, which should be recognized. To provide psychosocial interventions and psychological treatments first at a later stage risks prolonging the traumatic reactions among some children and adults as it has been established that those children and adults with the highest levels of distress also risk experience symptoms for a longer period of time.1000 Consequently, in terms of the provision of assistance in emergencies, Yule argues that there should not be such a difference between the assistance given right after the emergency and later on in terms of psychosocial interventions, since trauma alleviation right at the time of an emergency needs to be the goal, in contrast to interventions that focus solely on prevention of problems to appear at a later stage.1001 The actions sheets of the Guidelines assume that since many people recover from traumatic distress after some weeks, psychosocial interventions and psychological treatments can wait. He states that the Guidelines should address the needs of the children more clearly and thoroughly.1002 One issue he argues is that in general NGOs and mental health professionals assess individual and community needs differently and from different perspectives.1003 For instance, the first responders to an emergency 997 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249 998 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249 999 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250 1000 Meier-Stedman, et al. 2007 in Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249 1001 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249 1002 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250 1003 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

need to know how to talk to the survivors about the event(s), and this requires that the responders be trained, and the Guidelines need to more specifically address this issue.1004 Further, in a situation where a child has been killed and this child has been attending school, the teacher the next day cannot ignore when dealing with other children. As Yule points out, the children will have questions as well as fears, and these questions can be addressed and the fears alleviated “with the right information at the right time”.1005 The European Federation of Psychology Associations has acknowledged that it is the NGOs that most commonly are to provide the psychological and psychosocial support in emergency situations, however in order to do that these NGOs need to receive adequate psychological support.1006 Finally the Guidelines are more careful in their embrace of “traditional healing” concepts than before, as the drafters have come to understand that some traditional practices are harmful to the individual.1007 Yule while recognizing the fact that so many NGOs could come to an agreement on the Guidelines, cautions that consensus does not equal “validity”, and that several additional early interventions are required in order to achieve adequate evidence based responses to war and disasters.1008 As a result there is a need for greater clarity, a sharper focus and a more integrated response with regards to the specific needs the children have in such emergencies. 8.5.7.

Conclusion

The value of the many psychosocial studies that have been undertaken is that it is important to identify specifically which types of war related events the children actually have been exposed to and experienced, and to acknowledge the fact that the children have as a result been emotionally and mentally affected by these events. If we do not identify which types of war related events that have taken place, the needs of children risk being neglected. If we do not acknowledge how these events have actually affected the children, the needs and emotions of the children will not be properly taken care of. Since we all come from different cultural contexts it should be natural to include all the various cultural aspects and traditions in any intervention for the children. An integrated psychosocial and 1004 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250 1005 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250 1006 EFPA (2005), Report of the Task Force on Disaster, Crisis and Trauma Psychology for the General Assembly in Grenada, in Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250 1007 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 249 1008 Yule, W., IASC Guidelines – generally welcome, but…, Intervention 2008, Volume 6, Number ¾, page 248-251, p. 250-251

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cultural approach needs to be developed, and, as so many of these studies show, many children all over the world are severely emotionally affected by armed conflicts and any response needs to acknowledge this fact. The new tactics of war, including the indiscriminate targeting of women and children, terrorism and children being raped and forced to kill their family members, will require a different response than in other wars. Since so many children, such as in the Kivus in DRC, are being raped, ranging from six months up, traditional cultural interventions might simply not be enough in order to heal the effects of these atrocities. It follows quite naturally that these children apart from their physical and emotional healing have had their views on their sexuality, intimacy and self-identity messed up by these perpetrators. This is in the context that so many have had the same experiences, including the adults. The difference with the adults is that they do have a concept of their sexuality, intimacy and self-identity. If children such as it was shown in Southern Darfur are not allowed to talk about their experiences of having been raped because of stigma, then they are being left alone with their emotions. In this case one might argue that the culture in this aspect works against the needs of the child since it was shown that the intervention taking place actually did alleviate the tension of the children participating and that they reported feeling much better afterwards. Again, the different war experiences the children have had to endure need to be identified, and from the perspective of the child. This demands a very sensitive approach by the adults developing and conducting such interventions, and the practitioners should not be afraid to use their particular knowledge to help the children in need. They should not confuse their own eventual lack of cultural understanding and/or fear thereof with the need for their eventual professional knowledge which can help a child. Instead learn about different cultures and learn to respect different views and then integrate these understandings into any intervention. Further some practitioners need to learn about different types of conflicts, as all armed conflicts are not the same and there are different dynamics of conflict that are not always being recognized to the detriment of the children and youth they are to help.

9.

Internally Displaced Persons

One of the most important things for the future is always what remains in a child’s memory. What will these children share with their children and their grandchildren? How can these children and adolescents understand why they are called IDPs? They did nothing wrong, and yet they are like prisoners in their own country. Our activities try to lessen the hatred in these children’s hearts. Children should not grow up with hatred in their hearts.1 People who were displaced from urban areas are often an afterthought in the bigger resettlement programme.2

9.1.

Introduction

The total conflict-related IDP population in the world by December 2007 was 26 million and internal conflicts were the main reason for new displacements during 2007.3 This was the largest number of IDPs since the beginning of the 1990s with an increase of IDPs from 2006 with 6 per cent.4 At least 52 countries were affected and the most affected continent was Africa with 12.7 million IDPs in 19 countries. The countries with the highest number of IDPs are Sudan (5.8 1

2

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4

Isfandiyar Mamedov, director, art, music, drama and dance center for IDP children and adolescents. From Looking toward home, Internally displaced adolescents in Azerbaijan, in Women’s Commission for Refugee Women and Children, Untapped potential: Adolescents affected by armed conflict, 2000, p. 13 Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 22 The Internal Displacement Monitoring Centre (IDMC), and Norwegian Refugee Council, April 2008, Internal Displacement, Global overview of trends and developments in 2007, p. 14 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 12

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million), Colombia (up to 4 million), Iraq (2.5 million), Democratic Republic of Congo (1.4 million) and Uganda (1.3 million). The countries with the most new displacements were DRC, Iraq, Pakistan and Somalia. That the African continent is especially exposed relates to the fact that the countries which had the worst displacement situations were mainly African. They include the Central African Republic, Chad, Colombia, DRC, Ethiopia with the Gambella and Somali regions, Indonesia (West Papua), Iraq, Kenya, Pakistan, Somalia (south), Sudan with Darfur, Uganda with Karamoja, and Zimbabwe.5 In Somalia the internal displacement increased “to a scale never before witnessed” as fighting between the Transitional Federal Government forces, their Ethiopian allies and the insurgents that includes the Islamic Courts Union continued through 2007 and 2008.6 The violence spread to the centre of the country, with up to 1.1 million people becoming displaced. In Kenya hundreds of thousands of people were still displaced in 2009 due to the post-electoral violence of December 2007 and January 2008 even as the government said that almost all had either returned home or resettled somewhere else.7 However, the violence as a consequence of the electoral crisis in Kenya in December 2007 and January 2008 increased the burden of the already pre-existing IDP crisis there. The displaced population remained displaced because of various reasons such as security operations, inter-clan conflicts over resources, militia groups’ activities in some parts of the country, as well as election-related violence.8 The lives and the human rights of a population are fundamentally violated when it is the governmental forces that are the main perpetrators of violence which causes displacement. It is a fundamental principle that it is the government that is responsible for the needs and protection of the IDPs. Government forces and their various affi liated groups and the rebel groups fighting them were the main reason for internal displacement in 2007 and this pattern has not changed. IDMC reports that in 2007 in 21 of 28 countries with new displacement it was the government that was responsible for the displacement, and in 18 of those countries it was various non-governmental rebel groups.9 Moreover, 11.3 million IDPs in at least 13 countries had not received any significant humanitarian assistance

5

6 7 8 9

The Internal Displacement Monitoring Centre and Norwegian Refugee Council, April 2008, Internal Displacement, global overview of trends and developments in 2007. IDMC, Somalia, Massive displacement and humanitarian need, www.internal-displacement.org, 2009-01-19 IDMC, Kenya, No durable solutions for internally displaced yet, www.internal-displacement.org, 2009-01-19 IDMC, Kenya, No durable solutions for internally displaced yet, www.internal-displacement.org, 2009-01-19 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 7

Internally Displaced Persons

from their governments, while 9.3 million IDPs in at least ten countries had governments that were indifferent or even hostile to their protection needs.10 The Middle East was the region that experienced the largest increase of IDPs in 2007 of 30 per cent, which was mainly because of the continuous sectarian violence in Iraq.11 In December 2007 there were more than 3.5 million IDPs region wide, and about 2.5 million of these IDPs were in Iraq.12 More than 700,000 Iraqis became internally displaced in 2007 changing the demographics of Iraq by going to areas where their religious or ethnic affi liation was in majority. While the security situation improved in 2007 and 2008, which led to fewer displacements, the large displacement that had taken place before had resulted in neighbourhoods becoming homogenous in terms of ethnicity or religion which in turn led to fewer displacements.13 In 2007 violence between different communities was the main reason for displacement in Iraq. The problem persisted in Iraq and by November 2008 about 1.6 million people had been displaced because of the continuous sectarian and generalised violence since February 2006 when the Al Askari mosque was bombed.14 Among the 2.8 million IDPs were included some 1.2 million people that became displaced because of Saddam Hussein’s governmental policies. In 2008 about 500,000 people in India were internally displaced due to armed conflict, however there are many other people that have become internally displaced over the years but over whom there are no official statistics.15 Among these 500,000 are people from the Hindu minority in Jammu and Kashmir that have been targeted by separatist violence since 1990, as well as those displaced because of the conflict between India and Pakistan, and because of communal violence in the Orissa and Gujarat states “between the majority Hindu populations and Muslim and Christian minorities”.16 While all groups have specific challenges that are unique to them, all of the internally displaced have been in 10 11 12 13 14 15

16

IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, Key fi ndings, Facts and Figures, p. 6 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 7, 13 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 7, 13 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 7, 13 IDMC, Iraq, Challenges of forced displacement within Iraq, www.internal-displacement.org, 2009-01-19 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60

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great need of food, clean water, shelter and health care. What differs are that some of those persons that have become newly displaced are mostly concerned about their physical security and those persons that have been displaced for a long period of time are mainly concerned about access to education, property, livelihoods and work. Other specific concerns for the different groups are for instance the Christian IDPs in Orissa who risk forced conversion to Hinduism if they would return home, and that an increasing number of displaced women in Assam and Manipur have turned to prostitution since their husbands who have been the breadwinners have left their families to go look for work leaving the women to care for their families.17 Hindu extremist groups have taken over the homes and lands belonging to the Muslim community in Gujarat who have become internally displaced by these groups and whose living conditions have become very difficult as a result. There is no legal protection in India of the persons that have become internally displaced because of armed conflict.18 For instance, some Pandit families from Kashmir have been internally displaced for more than 15 years, but the Indian government calls them “migrants” and does not recognize their status as internally displaced and there are concerns that they because of this situation would lose their cultural identity.19 Since there is no national policy for how to deal with the situation for the IDPs, the IDPs have not been able to resettle permanently in new states because the government of the states have been against it, and as a result they have not supported local integration or resettlement of the IDPs and furthermore state officials have at times forced IDPs to return to their home states despite the problems they face. While no Indian governmental ministries were working to provide assistance to the IDPs in 2008, still a few national agencies and human rights bodies did work to address the needs of the conflict-induced IDPs such as the National Commission for Protection of Child Rights.20 The National Commission for Protection of Child Rights visited Tripura and as a result an investigation was launched to find out why about 7,000 Bru children that were living in internally

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Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60

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displaced camps had not received ration cards.21 Also, India’s Supreme Court has addressed the situation for those people that have become internally displaced by a vigilant force in the Chhattisgarh state by ordering the National Human Rights Commission to investigate this vigilant force.22 In this context the Orissa government was urged by the Supreme Court to step down if it continued to be incapable to provide protection to the Christian population that was being displaced. In addition, there has been very limited international assistance to the conflict induced IDPs in India, and there has not been any international agency that is in charge of coordinating the assistance.23 This needs to be seen in the context that the government has been very reluctant to recognize the problems of the IDPs and to give permission to international organizations to provide assistance to them. Challenges to meeting the humanitarian needs of the IDPs have been the denial of many governments of the existence of an IDP population at all, or that the governments do not have enough capacity to help the IDPs.24 The reasons for these problems have been in some cases politically motivated but also a lack of understanding of the internal displacement problem that they face.25 Lack of access to the IDP population is a major problem worldwide, severely impeding the providing of humanitarian assistance that most of the time is carried out by international organizations and international NGOs. For instance access to the IDPs in Afghanistan, Iraq, OPT, Somalia and Sudan has been considerably limited due to a lack of security or that aid workers have been targeted by different groups.26 In other cases the governments such as Myanmar and Zimbabwe have refused the support given by international organizations and NGOs to the IDPs. But also the lack of resources available to these organizations and NGOs carrying out the needed assistance are impediments as was shown in Kenya during and after the post-election violence in December 2007–January 2008.

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Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 60 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 8 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 8 IDMC and Norwegian Refugee Council, Internal displacement, global overview of trends and developments in 2007, April 2008, p. 8

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As Dorine Achieng of the Dada Na Mama charity in Kenya importantly explained:27 The situation is beyond the control of relief organizations. They do not have money to buy what the IDPs need.

In the end the international organizations and NGOs cannot take on the responsibility of the governments, as their work cannot in the end replace real functioning governmental policies for their own citizens. The Internal Displacement Monitoring Centre (IDMC) gives the figure that about 13.5 million children as of December 2010 were internally displaced worldwide.28 That children are the most exposed population of the internally displaced is reflected in the fact that the total number of internally displaced, adults and children alike, was 27.1 million people as of December 2009, which was an increase from both 2007 and 2008 when the number of IDPs was estimated to be about 26 million.29 The IDMC covered 54 countries in its report from May 2010 (covering year 2009) that experienced internal displacement, of which 23 countries had experienced new displacements in 2009 caused by conflict and violence.30 Africa was still the most affected region, with 11.6 million IDPs in 21 countries, but South and South-East Asia had the largest relative increase in the number of IDPs in 2009 “with a 23 percent year-on-year increase from 3.5 million to 4.3 million” (mainly in Pakistan).31 (Sudan, Colombia, Iraq, DRC, Somalia and Pakistan had more than one million IDPs registered in 2009, and Pakistan, DRC, Sudan, the Philippines, Somalia, Colombia, Sri Lanka and Ethiopia had in order of scale about 200,000 newly displaced people in 2009.) About 90 per cent of all the cases of newly internally displaced persons took place in eight countries during 2009, with about three million in Pakistan, one million in DRC, 530,000 in Sudan, 400, 000 in Somalia, 400,000 in the Philippines, 290,000 in Colombia, 27

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Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 22 Internal Displacement Monitoring Centre, Internally Displaced Children, Norwegian Refugee Council, http://www.internal-displacement.org/8025708F004D404D/ (httpPages)6E780F0E0FE6, accessed December 13, 2010 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 8-9 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 8-9 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 8-9

Internally Displaced Persons

280,000 in Sri Lanka and 200,000 in Ethiopia, while in the OPT about another 100,000–200,000 became internally displaced in 2009.32 Pakistan, DRC, Uganda, Sudan, Kenya and the Philippines, in order of scale, were the countries in 2009 that had the highest number of returning population, for instance in Pakistan about 25 per cent of the people who had become internally displaced during 2009 managed to return to their home areas in 2009, while in DRC about 265,000 had been able to return home.33 In Iraq about 350,000 internally displaced returned to their home areas during 2008 and 2009, and during 2009 between 80,000– 180,000 internally displaced in OPT were able to return home.34 It is important to keep in mind that armed conflict was the main cause of internal displacement in 2009, and that these armed conflicts had been going on for many years and sometimes decades, and that within that context many of the newly displaced had become displaced several times before.35 Another issue is that the urban IDPs often face different challenges than the people who become displaced from rural areas as most often the urban IDPs are neglected from assistance programming. During the post-election violence in Kenya this was a huge problem and as Margaret Karanja, an urban IDP who was concerned that she would not get access to government compensation for IDPs due to being in an urban setting, explained:36 The manner in which IDPs are identified tends to exclude urban populations, most of whom have the same needs as those in the camps. The situation for the urban IDPs is quite different from that of those from the Rift Valley, who were given first priority in the resettlement exercise. She adds that unlike most IDPs in Rift Valley, they did not flee to IDP camps, but instead sought refuge at the chiefs’ camps that later turned out to be their place of abode.

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Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 9 and 15 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 8-9 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 17 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, Key findings, Facts and figures, p. 9 Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 22

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As the government ratchets up resettlement in Rift Valley, where the highest number of people was displaced from their homes, there are anxieties that resettling urban IDPs-considered the easiest task-could be relegated to the back burner.

However as an inventory had been taking place in the camp which raised expectations and had resulted in some improvements, Margaret continued that “[t]hough we were initially left out of the resettlement exercise and have continued to live in misery, what we have seen recently is impressive”.37 The LRA deliberately targeted the civilian population in northern Uganda, including the Acholi, which constitutes 90 per cent of northern Uganda, as the civilian population was not supporting the LRA, and under the premises to protect the civilian population the Ugandan government were forcing people to live in “protected villages” which were IDP camps.38 In these IDP camps people came to live together with many different groups of people, in contrast to their traditional way of living with family and clan. The conditions in these camps have been very difficult with many illnesses and where during a period in Acholiland about one thousand people died a week, and several massacres took place in these camps by the LRA.39 As was being reported “[t]he conflict has also affected northern Uganda socially and culturally. Displacement has splintered clans and village communities, disrupting social organization and causing a general breakdown of moral character among youth, according to Lango and Acholi cultural leaders. Limited by the constraints of camp living, elders have found it difficult to impart traditional knowledge and cultural values to the young.”40 That children in Colombia are especially vulnerable to internal displacement was shown in a number of studies, where the Social Solidarity Network reported that of all the internally displaced as recorded by them and with known 37

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Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 22 Carlson, Kristopher and Mazurana, Dyan, Accountability for sexual and genderbased crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 242 Carlson, Kristopher and Mazurana, Dyan, Accountability for sexual and genderbased crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 242-243 Carlson, Kristopher and Mazurana, Dyan, Accountability for sexual and genderbased crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 243

Internally Displaced Persons

ages between the years 1995 and 2005, 54 per cent were under the age of 18 years.41 The IOM has given similar information for the time period up to 2001 in a study which showed that one-quarter were between 0–7 years, and 55 per cent were under 18 years of age, and that in urban areas especially the children under seven were among the most displaced.42 A study conducted in Bogota in 2003 showed that 56 per cent of the IDPs were under 18 years of age, and that of those 31 per cent were under seven years and 25 per cent were between 8–17 years. In March 2005, the World Food Programme and the International Committee of the Red Cross showed in a study on Colombia that 62 per cent of the people displaced were less than 18 years of age, and that 77 per cent alone of those displaced in the Norte de Santander were children below the age of 18 years.43 The Colombian ombudsman’s office has reported that a majority of the displaced population, about 63 per cent, end up in the slums of the biggest cities in Colombia, such as Bogota and Cartagena, where there are usually high levels of violence and high rates of homicide for people under the age of 25.44 The Social Solidarity Network published a study in 2002 about the particular situation and needs of the IDPs in Colombia, which showed that:45 The households of displaced persons tend to be larger, younger, and more crowded than the households of those who have not been displaced. The average displaced household has 4.6 family members, while the typical non-displaced household has 3.6. On average, 40 percent of the occupants of displaced households are under age twelve, as compared with 28 percent in non-displaced households. Sixty-one percent of displaced households live in dwellings without at least one room that is used exclusively as a bedroom, while 60 percent of non-displaced households have at least one bedroom in their homes. Fift y percent of displaced households live in dwellings constructed of cloth, cardboard, or scraps of wood. In contrast, only 16 percent of non-displaced households live in such dwellings. Twenty-seven percent of displaced households lack bathrooms in their homes, as compared with 12 percent of non-displaced households. In Cartagena, 81 percent 41 42 43 44 45

Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 18 IOM in Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 18 Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 18-19 Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 19 Luis Eduardo Perez Murcia, Poblacion desplazada: entre la vulnerabilidad, la violencia y la exclusion (Santafe de Bogota: Red de Solidaridad Social, 2002), p. 28-43 in Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 21

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of displaced households do not have bathrooms. Only 1 percent of displaced households in Cartagena have a toilet that is connected to a sewer.

Furthermore as the Spanish section of MSF (Médecins Sans Frontières) has stated: “Displaced persons have psychological needs that set them apart from other poor members of the communities in which they now live. There is a difference in the kind of trauma they’ve gone through.”46 In Colombia internal displacement continued unabated in 2009 with an increase of about 280,000 people, and that was in spite of the orders that the Colombian Constitutional Court had given to the government to prevent new displacement in the tutela decision T-025, and its several follow-up autos such as Autos 092 and 251. The government has the main responsibility for the prevention of internal displacement, providing assistance to and protecting the internally displaced population. The Brookings/Bern Project on Internal Displacement created the Framework for National Responsibility in 2005 which puts forward 12 steps that a government needs to take in order to fulfi l its national responsibility on IDPs.47 These 12 steps are: prevention, raising of national awareness of the problem, data collection, training on the rights of IDPs, a national legal framework, a national policy or plan of action, a national institutional focal point for IDPs, a role for national human rights institutions, participation by IDPs in decision-making, durable solutions, adequate resources and cooperation with international and regional organizations.48 However only a few states have adopted national legislation or policies concerning the protection of IDPs who have become displaced by armed conflict, generalized violence and human rights violations; out of 54 countries identified in the Global Overview by IDMC of May 2010 to have an IDP population, only 16 countries had so far adopted such legislation or policies: Angola, Azerbaijan, Bosnia and Herzegovina, Colombia, Croatia, Cyprus, Georgia, Iraq, Liberia, Nepal, Peru, the Russian Federation, Serbia, Sudan, Turkey and Uganda.49 No more than a small number of countries such as Angola, Iraq and Nepal had created laws and policies that applied to all types of IDPs, taking into account 46 47

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Human Rights Watch, Displaced and discarded, The plight of internally displaced persons in Bogota and Cartagena, October 2005, Vol. 17, No, 4(B), p. 21 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24

Internally Displaced Persons

displacement from both natural and human-made disasters. The IDMC reported that national laws and policies “in general” only cover specific conflicts or events.50 The national frameworks for IDPs in some countries such as Sudan, Uganda, Iraq and Peru cover all the phases of internal displacement, while laws and policies for IDPs in some countries only focus on a certain phase of displacement which limits the scope of protection, like in Azerbaijan where the focus of protection is during displacement, and in Angola and Turkey where the focus is on finding durable solutions to internal displacement.51 9.2.

International Support for the Assistance and Protection of Internally Displaced Persons

The international support to the internally displaced has foremost been to provide humanitarian assistance during displacement to the IDPs, and has neither focused on prevention or post-emergency early recovery, peace building nor development.52 The issue has been that not any international organization has had the responsibility to provide support to internally displaced, which has resulted in that many internally displaced have been living in very dire conditions and have had to take care of themselves. Within this context one understands why for instance so many internally displaced children have gone without education, when neither the national nor the international response have been adequate or many times non-existent to assist the internally displaced population. For instance it was not until in 2005 that the UNDP and its Emergency Relief Coordinator (ERC) initiated the Humanitarian Response Review, in which it was acknowledged that unpredictable response and poor coordination of the international humanitarian response to the situation of the internally displaced was problematic, and as a result the “cluster approach” was implemented.53 As a result of this Review, with the UN’s Resident Coordinator/Humanitarian Coordinator in a given country having the overall leadership, the UNHCR was given the

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Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 25 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 25

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specific leadership for the coordination of IDP protection activities.54 By 2009 the cluster approach for IDPs had been established in 12 countries in Africa, in Burundi, CAR, Chad, Côte d’Ivoire, DRC, Ethiopia, Kenya, Liberia, Niger, Somalia, Uganda and Zimbabwe.55 For instance the UNHCR assumed the leadership for the cluster approach regarding IDPs in Sri Lanka which was put into action in late 2008, and in 2009 the cluster approach was established in OPT where the OHCHR has taken on the leadership role in combination with that OCHA provides support.56 The cluster approach for IDPs was furthermore implemented in Zimbabwe and in Timor Leste in 2009. The UN’s integrated mission (UNMIT) in Timor Leste and the OHCHR and the Norwegian Refugee Council are leading this cluster together. The government of the Philippines had been reluctant to agree to the international organizations taking on more responsibility regarding the protection of the IDPs, however the international organizations continued in Mindanao to press ahead, and in February 2009 a monitoring working group was set up in Mindanao, and in August 2009 a protection working group that the IOM was leading became established instead.57 The UN Resident Coordinator in addition became the Humanitarian Coordinator in September 2009 because of the tropical storm Ketsana. At that point the UNHCR led the protection cluster, but only focusing on natural disaster protection. It is important to take into account the context within which assistance to IDPs is delivered and Meertens has highlighted the complexities involved with providing assistance to the IDPs, arguing that: 58 (international) humanitarian interventions that operate directly or in support of national programmes or local civil society initiatives, have to be designed a) in relation to the different actors at the national level and the tensions between them and b) with a clear understanding of the locally differentiated contexts and the balance of control.”

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Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 25 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 31 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 25 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 25 Meertens, D., Forced Displacement and women’s security in Colombia, Disasters, 2010, Volume 34, Issue (S2): Cp. S147-S164, www3.interscience.wiley.com/cgi-bin/, S149

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Further in Colombia, as Meertens points out, the overall humanitarian interventions regarding prevention, protection, emergency aid, and socioeconomic stabilization for the IDPs as conducted by the government, government agencies, national and local organizations and international agencies and organizations take place in the context of “a deep sense of mistrust, between state and civil society, local and national elites, displaced population and receiving communities, as well as between the executive, the Public Ministry and the judicial part of the government”.59 These are also reasons why it is necessary to include the participation of the IDPs including women in the development of assistance plans and programming for them. 9.3.

Post-Election Violence in Kenya and the Conditions for the Women and Girls in the IDP Camps for Those Who Had Become Displaced by the Violence

Rape and sexual violence of internally displaced has been reported in many places such as in DRC, Burundi, Chad, Côte d’Ivoire, Nigeria, Senegal, Somalia and Sudan.60 In this section the case of Kenya after the post-election violence will be discussed. The Centre for Rights, Education and Awareness (CREAW) in Nairobi, Kenya conducted research about the situation for the women and girls who had become displaced because of the post-election violence (PEV) that took place in Kenya in December 2007 and January 2008, and who were living in IDP camps. Many of them were subjected to sexual abuse because of the inadequate design of the camps and the lack of services provided:61 In Naivasha in particular, women reported fears about sexual victimization linked to inadequate camp design and services, including the lack of lighting, water, sanitation facilities and availability of firewood. In many camps, men and women who do not belong to the same family, were sleeping under shared tarpaulins or out in the open, making women feel afraid of the potential for sexual assault. Many girls and women repeatedly expressed concern over the threat of sexual violence in the camps. One respondent recounted how she narrowly escaped being raped. 59

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Meertens, D., Forced Displacement and women’s security in Colombia, Disasters, 2010, Volume 34, Issue (S2): Cp. S147-S164, www3.interscience.wiley.com/cgi-bin/, S149, footnote in text omitted Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 31 Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 30

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Many were sexually exploited in the absence of adequate state services which led to some women feeling that they were forced to engage in sexual activities in order to get a hold of necessary basic items such as being able to buy milk for their children, as the following account by a woman who lived in an IDP camp in Naivasha exemplifies:62 I was not attacked by anyone before I came to this camp. However, by and by I have had to give in to the demands of sex by the men in the camp in exchange for money, I have found that in order to get some money, in order to sustain myself and buy my child milk, I have to have sex with the men for at least a hundred a day. Mostly, I charge one man a hundred shillings for the services. In this camp, there’s the employed and the unemployed, I fall in the unemployed category. Yes, I know these men very well as all of them live in this camp. It is an understanding of some sort that there are no services for free, thus I cannot say I was attacked in any manner.

Most of the respondents talked of physical assaults, while the nature and frequency of the attacks in the camps varied. The exact number of cases of sexual assaults in IDP camps was not known, and one reason for this was the lack of standardized reporting mechanisms in the camps. Here follows some accounts of how the lack of security arrangements and the impunity affected the experiences of the women and girls in the IDP camps:63 Apart from ad hoc security committees set up by residents in the camps, no formal reporting mechanisms were established for addressing incidents of sexual violence in the camps and consequently no mechanisms were put in place to avert the growing risks of sexual exploitation of women and girls within the camps. At the same time there are challenges associated with acknowledging victimization, including availability of services, the level of awareness about the value of medical assistance, the low degree of public confidence in the police and other security related organs, as well as the cultural tolerance of non-disclosure of rape. The finding also suggests that perpetrators are exploiting the conflict by committing sexual violence with impunity while efforts to protect the women and girls are remarkably insufficient. There was little evidence that issues of gender-based violence were taken into account in the design and delivery of services in the areas where the camps have been established.

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Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 30 Centre for Rights, Education and Awareness, CREAW, Women paid the price!!! Sexual and gender-based violence in the 2007 post-election conflict in Kenya, 2008, p. 32

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Furthermore, in Kenya issues such as embezzlement of money allocated to help the IDP population return back home or to buy land by governmental officials was a great impediment to people who continued to be displaced.64 In one case the government was unable to account for USD 19 million that was to be given to IDPs to buy land. While the remaining IDP camps from the post-election violence were forcibly closed by the government during 2009, there still remained a group of IDPs in transit camps or with host families. In 2009 for instance according to the Ministry of State for Special Programmes (MoSSP) more than 3,700 IDP households lived in 25 transit sites (in Molo, Uasin Gishu/Wareng, and Trans Nzoia West/Kwanza Districts).65 The situation in the IDP camp Shalom City Mawingu close to Nyandarua in Kenya in November 2009 was illustrative of how challenging the conditions for the thousands of IDPs who were still lingering in IDP camps were, with little food and water, lack of medical care and where especially children and the elderly were the victims of cholera, typhoid, pneumonia and malnutrition.66 In Kenya during the post-election violence, the NGO ANPPCAN set up a children’s centre in the Jamhuri IDP camp which housed people fleeing from the violence outside of the Kibera slum in Nairobi, and at this centre ANPPCAN with the help of other organizations were able to offer counselling to the children, temporary schooling with voluntary teachers, a play area, and health check-ups.67 Furthermore, child trafficking was a problem within the camp, and some volunteers working at the children’s centre stepped in and within the camp prevented seven cases of child trafficking, where in one case 87 children were about to be trafficked by a group before the volunteers were able to prevent this from happening.68 ANPPCAN has initiated a study on trafficking of children and young women in Kenya, Uganda and Tanzania.

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Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 38 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 38 Rehal, Manpreet, All I Want is Justice, Not Revenge, November 11, 2009, Daily Nation, p. 6-7 ANPPCAN, Case Studies, Kenya Election Crisis 2008, www.ANPPCAN.org, accessed March 21, 2011 ANPPCAN, Case Studies, Kenya Election Crisis 2008, www.ANPPCAN.org, accessed March 21, 2011

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9.4.

The United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons

As a first step to address the worldwide problem of the internally displaced population at an international level, in 1992 the UN Commission of Human Rights requested the UN General-Secretary to appoint a UN Secretary-General Representative on Internally Displaced Persons, and the first such Representative became Francis M. Deng.69 To further strengthen the work of the Representative, including to have a stronger focus on human rights, a new mechanism in 2004 was requested by the UN Human Rights Commission to be established by the UN Secretary-General when the second Representative was to be appointed, and subsequently the UN Secretary-General in September 2004 appointed the Representative on the human rights of internally displaced persons, Walter Kälin.70 Mr. Kälin served in this position until 2010, when there was a new change in the title of the position as well as in terms of who would appoint such a person as in September 2010 the Human Rights Council appointed Dr. Chaloka Beyani as the new Special Rapporteur on the Human Rights of Internally Displaced Persons.71 Dr. Chaloka Beyani began serving in this function in November 2010 and it is the Office of the High Commissioner for Human Rights that is providing the mandate of this new Special Rapporteur. The mandate of the Special Rapporteur is basically the same as for the former Representatives, and the Rapporteur is among other things mandated to mainstream the IDPs human rights into all relevant parts of the UN system; improve the international response to the IDP situation; conduct coordinated international advocacy and action on IDPs; and to continue to engage in dialogue with governments, intergovernmental organizations, and NGOs about the 69

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United Nations Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission on Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, E/CN.4/1998/53/ Add. 2, 11 February 1998, para. 2; Some of the earlier challenges to the post of the Representative was that the position was only voluntary on a part-time basis, and the Representative had very limited resources which led to that he was not able to systematically monitor IDP situations or follow-up earlier country visits. Special Rapporteur on the Human Rights of Internally Displaced Persons, Introduction to the mandate of the Special Rapporteur of Internally Displaced Persons, Dr. Chaloka Beyani, http://www2.ohchr.org/english/issues/idp/mandate.htm, accessed 2011-07-29 Special Rapporteur on the Human Rights of Internally Displaced Persons, Introduction to the mandate of the Special Rapporteur of Internally Displaced Persons, Dr. Chaloka Beyani, http://www2.ohchr.org/english/issues/idp/mandate.htm, accessed 2011-07-29

Internally Displaced Persons

reasons behind internal displacement; to continue to promote strategies and support regarding prevention of displacement, better protection and assistance; to continue using the Guiding Principles on Internal Displacement in dialogues with governments, intergovernmental organizations, NGOs and other actors; to continue to promote human rights and the protection and assistance needs of IDPs in peace processes, peace agreements and reintegration and rehabilitation processes; and to continue to promote the protection of the human rights of IDPs affected by natural disasters.72 The governments have been asked by the Human Rights Council “to respond favourably to requests by the Special Rapporteur for visits and information”, as country visits are an important aspect of being able to carry out the mandate efficiently.73 The Human Rights Council has expressed “particular concern” about the problems that many IDP women and children are dealing with such as “ violence and abuse, sexual and labour exploitation, trafficking in persons, forced recruitment and abduction, and notes the need to continue to pay more systematic and in-depth attention to their special assistance, protection and development needs, as well as those of other groups with special needs, such as older persons, persons with disabilities and severely traumatized individuals affected by internal displacement …”.74 In this regard the Rapporteur has been mandated by the Human Rights Council specifically concerning women and children to “integrate a gender perspective throughout the work of the mandate, and to give special consideration to the human rights of internally displaced women and children, as well as of other groups with special needs, such as older persons, persons with disabilities and severely traumatized individuals affected by internal displacement, and their particular assistance, protection and development needs”.75 The two former Representatives conducted several country visits during their tenures which the new Special Rapporteur is to continue, and to go on country visits is of special significance to the mandate as this provides the Rapporteur with first-hand experience on the ground of the situation for the IDPs in a certain setting, and gives the Rapporteur the possibility to talk to governmental officials, international and national humanitarian organizations as well as many non-state 72

73

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United Nations General Assembly, Human Rights Council, Resolution adopted by the Human Rights Council, 14/6, Mandate of the Special Rapporteur on the human rights of internally displaced persons, A/HRC/RES/14/6, 23 June 2010 United Nations General Assembly, Human Rights Council, Resolution adopted by the Human Rights Council, 14/6, Mandate of the Special Rapporteur on the human rights of internally displaced persons, A/HRC/RES/14/6, 23 June 2010 United Nations General Assembly, Human Rights Council, Resolution adopted by the Human Rights Council, 14/6, Mandate of the Special Rapporteur on the human rights of internally displaced persons, A/HRC/RES/14/6, 23 June 2010, para. 7 United Nations General Assembly, Human Rights Council, Resolution adopted by the Human Rights Council, 14/6, Mandate of the Special Rapporteur on the human rights of internally displaced persons, A/HRC/RES/14/6, 23 June 2010, para. 12 (d)

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actors including the internally displaced themselves.76 Since the new mandate on human rights of the internally displaced was established such visits have been conducted in Bosnia-Herzegovina (2005), Georgia and Colombia (2006), Sri Lanka (2007), Georgia (2008), DRC and a follow-up trip to Georgia (2009), and another follow-up trip to Georgia, Azerbaijan and to Iraq (2010).77 9.5.

The Guiding Principles on Internal Displacement

The first Representative, Francis M. Deng, prepared the The Guiding Principles on Internal Displacement after extensive consultations with an international expert team and with the assistance of several different international and national organizations.78 The Representative had in 1996 together with this team of experts developed a “Compilation and Analysis of Legal Norms” concerning the rights and needs of the IDP populations and the responsibilities of governments and the international community to this regard, which the Representative presented to the UN Commission on Human Rights.79 Subsequently the Representative was requested by the Commission and the UN General Assembly to develop a “framework for the protection and assistance of the internally displaced”, and as a result the Guiding Principles were drafted by the expert team and with much assistance from several international and national actors and organizations and were presented to the UN Commission on Human Rights in February 1998.80 76 77 78

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Special Rapporteur on the Human Rights of Internally Displaced Persons, Country Visits, http://www2.ohchr.org/english/issues/idp/visits.htm, accessed 2011-07-29 Special Rapporteur on the Human Rights of Internally Displaced Persons, Country Visits, http://www2.ohchr.org/english/issues/idp/visits.htm, accessed 2011-07-29 Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission on Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add. 2, 11 February 1998 E/CN.4/1996/52/Add.2, Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission on Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, E/CN.4/1998/53/ Add. 2, 11 February 1998 Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission on Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add. 2, 11 February 1998

Internally Displaced Persons

The Guiding Principles were subsequently endorsed in 1998 by the UN Commission on Human Rights in a resolution.81 The Guiding Principles was the first international document that identified the rights and guarantees regarding protection and assistance of the internally displaced persons. They are comprised of 30 principles and cover everything from the preventive phase where the right not to be arbitrarily displaced is established, to the right to protection and assistance when displacement is taking place and to the rights and guarantees that IDPs have during the phase when they either can return home or must resettle and reintegrate into new places. The purpose of the Guiding Principles is to: 1.

… address the specific needs of internally displaced persons worldwide. They identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration.

The Guiding Principles define internally displaced persons as: 2.

… persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed confl ict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Importantly the Principles apply to all parties to an armed conflict, including non-state armed actors. Principle 2: 1.

These Principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction. The observance of these Principles shall not affect the legal status of any authorities, groups or persons involved.

…

The Guiding Principles firmly establish that it is the governments that have the primary responsibility to protect and give assistance to the IDPs and that all persons who become internally displaced have a right to request both protection and assistance. 81

Mr. Francis M. Deng, Introductory note by the Representative of the Secretary-General on Internally Displaced Persons, June 2001, in OCHA, Guiding Principles on Internal Displacement, Compilation, United Nations

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Principle 3: 1.

2.

National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction. Internally displaced persons have the right to request and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for making such a request.

The Guiding Principles identify specific groups of displaced persons who are entitled to special protection and assistance because of their unique conditions including children, and give children specific protection and provisions for assistance because of them being children and as such having special needs. Principle 4:

… 2.

Certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs.

Here follows a list of Principles that are particularly relevant to situations of armed conflict as they relate to children and youth, keeping in mind how displacement especially affect them. Principle 6: 1. 2.

Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence. The prohibition of arbitrary displacement includes displacement:

… (b)

In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;

… 3.

Displacement shall last no longer than required by the circumstances.

Internally Displaced Persons

Principle 7: … 2.

3.

The authorities undertaking such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in satisfactory conditions of safety, nutrition, health and hygiene, and that members of the same family are not separated. […](d) The authorities concerned shall endeavour to involve those affected, particularly women, in the planning and management of their relocation; …

Principle 8: Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty and security of those affected. Principle 9: States are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands. Principle 10: 1.

Every human being has the inherent right to life which shall be protected by law. No one shall be arbitrarily deprived of his or her life. Internally displaced persons shall be protected in particular against:

... (d)

Enforced disappearances, including abduction or unacknowledged detention, threatening or resulting in death.

… 2.

Attacks or other acts of violence against internally displaced persons who do not or no longer participate in hostilities are prohibited in all circumstances. Internally displaced persons shall be protected, in particular, against: (a) Direct or indiscriminate attacks or other acts of violence, including the creation of areas wherein attacks on civilians are permitted; (b) Starvation as a method of combat; (c) Their use to shield military objectives from attack or to shield, favour or impede military operations;

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(d) (e)

Attacks against their camps or settlements; and The use of anti-personnel landmines.

Principle 11: 1. 2.

Every human being has the right to dignity and physical, mental and moral integrity. Internally displaced persons, whether or not their liberty has been restricted, shall be protected in particular against: (a) Rape, mutilation, torture, cruel, inhuman or degrading treatment or punishment, and other outrages upon personal dignity, such as acts of gender-specific violence, forced prostitution and any form or indecent assault; (b) Slavery or any contemporary form of slavery, such as sale into marriage, sexual exploitation, or forced labour of children; and (c) Acts of violence intended to spread terror among internally displaced persons.

Threats and incitement to commit any of the foregoing acts shall be prohibited.

The Guiding Principles specifically ensure the rights of children with respect to the ban on the recruitment and use of child soldiers, taking into consideration that internally displaced children are in particular vulnerable to the recruitment of armed forces and groups. Principle 13: 1. 2.

In no circumstances shall displaced children be recruited nor be required or permitted to take part in hostilities. Internally displaced persons shall be protected against discriminatory practices of recruitment into any armed forces or groups as a result of their displacement. In particular any cruel, inhuman or degrading practices that compel compliance or punish non-compliance with recruitment are prohibited in all circumstances.

In war people many times become separated from their families, which is an issue especially for internally displaced persons, making children very exposed. Principle 16: 1.

…

All internally displaced persons have the right to know the fate and whereabouts of missing relatives.

Internally Displaced Persons

Principle 17: 1. 2. 3.

Every human being has the right to respect of his or her family life. To give effect to this right for internally displaced persons, family members who wish to remain together shall be allowed to do so. Families which are separated by displacement should be reunited as quickly as possible. All appropriate steps shall be taken to expedite the reunion of such families, particularly when children are involved. …

… Principle 18: 1. 2.

3.

All internally displaced persons have the right to an adequate standard of living. At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to: (a) Essential food and potable water; (b) Basic shelter and housing; (c) Appropriate clothing; and (d) Essential medical services and sanitation. Special efforts should be made to ensure the full participation of women in the planning and distribution of these basic supplies.

It is important to keep in mind that for individuals with chronic diseases, such as HIV/AIDS, it is especially challenging to become displaced as disruptions to medical treatments often take place, as well as that stigma associated with for instance HIV/AIDS can be a problem that resurfaces in a new location.82 Principle 19: 1.

82

All wounded and sick internally displaced persons as well as those with disabilities shall receive to the fullest extent practicable and with the least possible delay, the medical care and attention they require, without distinction on any grounds other than medical ones. When necessary, internally displaced persons shall have access to psychological and social services.

See for instance Makokha, K. and Okello Orlale, R., Eds., In the Shadow of Death, My Trauma, My Experience, Voices of Kenyan women from Post-Election Violence, Edited by Kwamchetsi Makokha and Rosemary Okello Orlale, AWC (African Woman and Child), Heinrich Boll Stiftung, East&Horn of Africa, COVAW, this booklet “shares real stories of Kenyan women in the wake of post election violence that engulfed the country after the botched December 27, 2007 elections”, p. 19

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2.

3.

Special attention should be paid to the health needs of women, including access to female health care providers and services, such as reproductive health care, as well as appropriate counselling for victims of sexual and other abuses. Special attention should also be given to the prevention of contagious and infectious diseases, including AIDS, among internally displaced persons.

The Guiding Principles recognize the importance that internally displaced persons retain their legal personality as citizens of their country, a right which governments have an obligation to uphold. Principle 20: 1. 2.

3.

Every human being has the right to recognition everywhere as a person before the law. To give effect to this right for internally displaced persons, the authorities concerned shall issue to them all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates. In particular, the authorities shall facilitate the issuance of new documents or the replacement of documents lost in the course of displacement, without imposing unreasonable conditions, such as requiring the return to one’s area of habitual residence in order to obtain these or other required documents. Women and men shall have equal rights to obtain such necessary documents and shall have the right to have such documentation issued in their own names.

The Guiding Principles include the right to education and medical care, which most of the IDPs do not have access to. One of the reasons for this is that many IDPs lack the identification documents that generally every citizen must have in order to get access to schooling and health care. Many people flee anonymously because of continuous threats to themselves and their families and therefore they do not register themselves and get access to documents. Others do not have time to bring their identification documents with them when they flee, and have afterwards great difficulties in getting access to new ones. The right to identification documents is guaranteed in the Guiding Principles, as is an adequate standard of living, but the reality is that malnutrition, illnesses, poor housing and lack of jobs are the standard. Furthermore, children should not be expected to keep hold of their birth certificates or other legal personal documents. Principle 23: 1. 2.

Every human being has the right to education. To give effect to this right for internally displaced persons, the authorities concerned shall ensure that such persons, in particular displaced children, receive

Internally Displaced Persons

3. 4.

education which shall be free and compulsory at the primary level. Education should respect their cultural identity, language and religion. Special efforts should be made to ensure the full and equal participation of women and girls in educational programmes. Education and training facilities shall be made available to internally displaced persons, in particular adolescents and women, whether or not living in camps, as soon as conditions permit.

It is clearly stated in the Principles that it is the governments that have the main responsibility to provide assistance to the IDPs, and that “all authorities”, that is all actors including non-state actors, must make it possible for humanitarian organizations and other actors to provide assistance. Furthermore, international humanitarian organizations and those actors providing help have a right to offer this assistance to the IDPs. Principle 25: 1. 2.

3.

The primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities. International humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced. Such an offer shall not be regarded as an unfriendly act or an interference in a State’s internal affairs and shall be considered in good faith. Consent thereto shall not be arbitrarily withheld, particularly when authorities concerned are unable or unwilling to provide the required humanitarian assistance. All authorities concerned shall grant and facilitate the free passage of humanitarian assistance and grant persons engaged in the provision of such assistance rapid and unimpeded access to the internally displaced.

While it is the government that has the primary responsibility that the IDPs’ rights to assistance and protection are being met within its whole territory, which also the Guiding Principles underline, all relevant authorities have the responsibility according to the Principles to give access to both domestic and international humanitarian organizations so that the IDPs’ rights to assistance will be met. These humanitarian organizations have a right according to the Guiding Principles to offer assistance and a government cannot arbitrarily deny such help when there is a need. At the international level, in 2005 at the World Summit held at the United Nations, all heads of state and government adopted the 2005 UN World Summit Outcome Document in which they recognized the Guiding Principles on Internal Displacement stipulating that it was “an important international framework for the protection” of the internally displaced population and they also “resolved” to take “effective measures” to prevent internal displacement from occurring and

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to increase the protection of the internally displaced.83 The heads of state and government also stated that they accepted their responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.84 With regards to the Guiding Principles on Internal Displacement by 2009 nine countries had made specific reference to them in their national laws and policies on IDPs.85 For example, the Ugandan government has based its IDP policy on the Guiding Principles, the Ministry of Refugees and Accommodation in Georgia has made sure that its IDP State Strategy Plan Of Action is in accordance with the Guiding Principles by having sought the advice of international representatives, and the government of Turkey has in its Strategy Document for IDPs included the Guiding Principles and based its Compensation Law for IDPs on the Guiding Principles.86 Furthermore, the Great Lakes Protocol on the Protection and Assistance to IDPs, which entered into force in June 2008 with 11 signatory countries, makes it legally compulsory to “incorporate the Guiding Principles into domestic law and policies” for the signatory states.87 Furthermore the Kampala Convention of October 2009 refers to the Guiding Principles (see further down on the section on this Convention). The OAS and the Council of Europe have recommended that their member states incorporate the Guiding Principles into their national legislation. Some of the greatest challenges are that most of those countries that are experiencing internal displacement are either not able to or not willing to take responsibility for the internally displaced.88 In some cases both governments as well as non-state actors impede that any prevention or protection strategy concerning IDPs is implemented. 83 84

85

86 87 88

United Nations, General Assembly, Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, A/RES/60/1, 24 October, 2005, para. 132 United Nations, General Assembly, Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, A/RES/60/1, 24 October, 2005, para. 138: “Each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.” Internal Displacement Monitoring Centre, Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2009, May 2010, p. 24 Chair’s Summary: GP 10 Conference in Oslo, 16-17 October 2008, www.internaldisplacement.org/gp10 Chair’s Summary: GP 10 Conference in Oslo, 16-17 October 2008, www.internaldisplacement.org/gp10 Chair’s Summary: GP 10 Conference in Oslo, 16-17 October 2008, www.internaldisplacement.org/gp10

Internally Displaced Persons

9.6.

Internal Displacement in Africa

With Africa continuing to be the continent with the largest existing IDP population in the world, as well as generating about one in two of the total new displacements in 2007, there has been a great need to find ways to address this situation by the African governments.89 Within this context there has been an attempt to address the refugee and IDP crisis within the context of the Great Lakes Region, with the UN and AU sponsoring an initiative in 1996 called the International Conference on the Great Lakes Region (ICGLR).90 As a response to the genocide in Rwanda in 1994 and its widespread consequences for the whole region, the ICGLR grew out of a need by the African states and intergovernmental organizations to address the interlinked issues that the states and people of the region all to different extents experienced and needed to find a solution to with the help of the international community.91 The first meeting of heads of state was held in Dar es Salaam in 2004 and 11 states participated. They included Angola, Burundi, Central African Republic, Republic of the Congo, Democratic Republic of the Congo, Kenya, Rwanda, Sudan, Tanzania, Uganda and Zambia. The ICGLR process had four thematic pillars, peace and security, democracy and good governance, economic development and regional integration and humanitarian and social issues.92 In December 2006 the Pact on Security, Stability and Development in the Great Lakes Region (the Great Lakes Pact) was signed in Nairobi as an outcome of the ICGLR process, and it entered into force in 2008 when eight member states had ratified it.93 The Pact includes in addition to the Pact itself, the Dar es Salaam Declaration, ten protocols, four programmes of action with 33 priority projects, and mechanisms and institutions for implementation which also encompass the Special Fund for Reconstruction and Development.94 The intention of the Pact is 89 90

91

92

93

94

IDMC and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2007, April 2008, p. 12 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, preface Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 9 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 9 The Pact entered into force June 21, 2008, Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 9-10 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 10

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expressed in the preamble that “[an] individual and collective determination … to transform the Great Lakes Region … into a space of durable peace and security, of political and social stability, and of economic growth and shared development by multisector cooperation and integration for the sole benefit of our peoples”.95 The Dar es Salaam Declaration, the Declaration on Peace, Security, Democracy and Development, is the foundation for the Pact and lists the most important priorities and responsibilities of the governments.96 Regarding the protection of the rights of refugees and IDPs the Declaration includes various guarantees. The Declaration refers to the OAU and the UN refugee conventions and states that the states will “respect and use the Guiding Principles on Internally Displaced Persons”, and will adhere to “the norms and principles of international humanitarian law”.97 In addition, the Declaration “[r]ecognises the need for joint policy to address long-term refugee crises, promoting local integration and peaceful co-existence with resident populations, as well as voluntary repatriation and the creation of conditions conducive to the return of refugees”.98 The states have also declared that they will ensure that those refugees or IDPs who are able to return to their homes will get their property back, and that the local traditional and administrative authorities will assist with this. The Great Lakes Pact developed several protocols and of particular importance are the Protocol on the Property Rights of Returning Populations, the Protocol on the Protection and Assistance to Internally Displaced Persons and the Protocol on the Prevention and Suppression of Sexual Violence Against Women and Children.99 As the Internal Displacement Monitoring Centre (IDMC) has stated the Pact became “the world’s first binding multilateral instrument dedicated to the incorporation into national law of the Guiding Principles”.100

95

Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 10 96 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 11 97 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 11 98 Norwegian Refugee Council, Internal Displacement Monitoring Centre, International Refugee Rights Initiative, The Great Lakes Pact and the rights of displaced people, A guide for civil society, September 2008, p. 11 99 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 35-36 100 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 36

Internally Displaced Persons

The African Commission on Human and Peoples’ Rights appointed a Special Rapporteur for Refugees, Returnees, IDPs and Asylum Seekers in 2004, a position that had before been the Focal Person on Refugees and Displaced Persons in Africa.101 So far all the special rapporteurs that the African Commission has appointed have been members of the Commission which has been criticized, and when it comes to the Special Rapporteur for Refugees, Returnees, IDPs and Asylum Seekers, concerns have arisen that since this is such a widespread problem in Africa the task would be too much to handle for the Special Rapporteur himself without the support of a more focused approach by the Commission as a whole.102 With regards to the situation for the internally displaced persons, the African Union is under the obligation to cooperate with this Special Rapporteur according to Article 8(3)(f) of the Kampala Convention in order to protect and assist the internally displaced. (See more on the Kampala Convention in the following section.) In the Dar es Salaam Declaration the states parties are looking to set up a mechanism that will identify, disarm and separate combatants from the civilian refugees and displaced persons.103 This reflects how disastrous the situation became in Eastern DRC after the inflow of about one million refugees from Rwanda after the genocide in 1994. Among this group of people were the many perpetrators of the genocide and their families who were hiding with the other refugees who needed humanitarian assistance. This mechanism would separate such combatants into “distinct facilities to prevent them from manipulating refugees and displaced persons for political or military purposes”.104 9.6.1.

The Kampala Convention

As a further step to finding a solution to the widespread problem of the internally displaced population within Africa, the AU adopted at a special summit of the AU in Kampala in Uganda the first international and regional legally binding treaty on internally displaced persons on 23 October 2009 called “the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa”, the Kampala Convention. At first only Uganda had ratified it, but as of September 2011 CAR, Gabon, Gambia, Sierra Leone, Togo and Zambia had also 101

Evans, M., and Murray, R., Eds., The African Charter on Human and Peoples’ Rights, Second Edition, The system in practice, 1986-2006, 2008, p. 366 102 Evans, M., and Murray, R., Eds., The African Charter on Human and Peoples’ Rights, Second Edition, The system in practice, 1986-2006, 2008, p. 366 103 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 11 104 Internal Displacement Monitoring Centre (IDMC) and Norwegian Refugee Council, Internal Displacement, Global Overview of Trends and Developments in 2008, April 2009, p. 11

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ratified and deposited the instruments of ratification of the Convention. At first only Uganda had ratified it, but as of September 2011 CAR, Gabon, Gambia, Sierra Leone, Togo and Zambia had also ratified and deposited the instruments of ratification of the Convention, and the Convention entered into force in December 2012 when 15 member states had ratified and deposited instruments of ratification or accession.105 So far among other states Burundi, DRC, Liberia, Rwanda, and Somalia have signed but not ratified the Convention, but neither Kenya, South Africa, nor Sudan have signed it as of yet. So far among other states Burundi, DRC, Liberia, Rwanda, and Somalia have signed but not ratified the Convention, but neither Kenya, South Africa, nor Sudan have signed it as of yet. The Kampala Convention makes reference in its Preamble to the 1998 UN Guiding Principles on Internal Displacement as being an “important international framework for the protection of internally displaced persons”, and points out that there is no legally binding African or international “institutional framework” for preventing internal displacement or for protecting and assisting the internally displaced population. The Kampala Convention provides in its Article 1 a number of definitions for the purposes of the Convention including that a “‘Child’ means every human being below the age of 18 years” (h), and that ‘“Women’ mean persons of the female gender, including girls” (p). The Convention also addresses harmful practices and Article 1(j) defines “harmful practices” as meaning “all behavior, attitudes and/or practices which negatively affect the fundamental rights of persons, such as but not limited to their right to life, health, dignity, education, mental and physical integrity and education”. The Convention defines “internally displaced persons” in Article 1(k) as:106 Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Furthermore the Kampala Convention defines “internal displacement’ in Article 1(l) as:107

105 The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted in Kampala, Uganda on 23 October 2009, entered into force 6 December 2012, Lists of countries which have signed, ratified/acceded to the Convention, 22/08/2011 and 10/12/2012 106 Article 1, Definitions, k., the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 26/03/2010 107 Article 1, Definitions, l., the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 26/03/2010

Internally Displaced Persons

The involuntary or forced movement, evacuation or relocation of persons or groups of persons within internationally recognized state borders.

The purposes of the Convention are very broad-based including addressing the root causes of internal displacement, as well as the obligations and the responsibilities of the governments but also those of armed groups and non-state actors. Armed groups are defined in Article 1(e) as “dissident armed forces or other organized armed groups that are distinct from the armed forces of the state”. Article 1(n) defines “non-state actors” as “private actors who are not public officials of the State, including other armed groups not referred to in article 1(d) above, and whose acts cannot be officially attributed to the State”. The objectives of the Convention are manifold as is stipulated in Article 2: The objectives of this Convention are to: a. Promote and strengthen regional and national measures to prevent or mitigate, prohibit and eliminate root causes of internal displacement as well as provide for durable solutions; b. Establish a legal framework for preventing internal displacement, and protecting and assisting internally displaced persons in Africa; c. Establish a legal framework for solidarity, cooperation, promotion of durable solutions and mutual support between the States Parties in order to combat displacement and address its consequences; d. Provide for the obligations and responsibilities of States Parties, with respect to the prevention of internal displacement and protection of, and assistance, to internally displaced persons; e. Provide for the respective obligations, responsibilities and roles of armed groups, non-state actors and other relevant actors, including civil society organizations, with respect to the prevention of internal displacement and protection of, and assistance to, internally displaced persons.

Article 3 of the Convention lists a long catalogue of obligations that the state parties have in relation to the internally displaced persons, including to refrain from, prohibit and prevent arbitrary displacement (a). The obligation to prevent arbitrary displacement includes addressing the root causes of displacement and refers to political, social, cultural and economic exclusion and marginalization of vulnerable populations and the states parties are in Article 3(b) to: prevent political, social, cultural and economic exclusion and marginalisation, that are likely to cause displacement of populations or persons by virtue of their social identity, religion or political opinion.

The states parties are also under the obligation to ensure individual responsibility as well as accountability of different non-state actors, which includes not

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only armed groups but also multinational corporations. As Article 3 stipulates the states parties are under the obligation to: (g) (h)

(i)

Ensure individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law. Ensure the accountability of non-State actors concerned, including multinational companies and private military or security companies, for acts of arbitrary displacement or complicity in such acts. Ensure the accountability of non-State actors involved in the exploration and exploitation of economic and natural resources leading to displacement.

While it is a positive development that the accountability and responsibilities of non-state actors including multinational companies have been included in the Convention, a great challenge is going to be for the states parties to be able to identify individual perpetrators and assign criminal responsibility onto them for having intentionally caused the internal displacement of people. The states parties to the Convention are under the obligation to incorporate the Convention into domestic law, and should also create an authority or body that has the responsibility to ensure the rights and needs of the internally displaced within a country (Article 3(2)). When no such authority or body has been created the states parties are under the obligation to cooperate with international organizations and local civil society organizations (Article 3(2)(b)). Of importance is also that the states parties to the Kampala Convention have agreed that the situation for the internally displaced persons and the principles of the Kampala Convention are to be taken up in peace negotiations and peace agreements in order to find a solution to the problems of the internally displaced as the states parties are obliged to, “shall”:108 Endeavour to incorporate the relevant principles contained in this Convention into peace negotiations and peace agreements for the purpose of finding sustainable solutions to the problem of internal displacement.

The Convention ranges from giving the states parties obligations vis-à-vis its population before any internal displacement has taken place to during and after internal displacement. Before any internal displacement has taken place the states parties are under the obligation to protect its population from becoming arbitrarily displaced by creating conditions that would prevent such displacement from taking place such as respecting the human rights of the population and humanitarian law, Article 4(1). The states Parties should develop an early warning system in those areas of the country where the possibility for displace108 Article 3, General Obligations Relating to States Parties, 2 (e.), the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 26/03/2010

Internally Displaced Persons

ment exists, and develop disaster risk reduction strategies, and emergency and disaster preparedness and management measures, Article 4(2). Article 4(4) of the Convention clearly states that “[a]ll people have a right to be protected against arbitrary displacement”, and provides for certain categories of arbitrary displacement that are prohibited. These include: a.

b.

c. d. e.

Displacement based on policies of racial discrimination or other similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the population; Individual or mass displacement of civilians in situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demands, in accordance with international humanitarian law; Displacement intentionally used as a method of warfare or due to other violations of international humanitarian law in situations of armed conflict; Displacement caused by generalized violence or violations of human rights; Displacement as a result of harmful practices.

…

The states parties are also according to Article 4(5) under the obligation with regards to indigenous communities: to protect communities with special attachment to, and dependency, on land due to their particular culture and spiritual values from being displaced from such lands, except for compelling and overriding public interests.

The states parties are obliged as a preventive measure to criminalize in domestic law such acts of arbitrary displacement that amount to genocide, war crimes or crimes against humanity, Article 4(6). The Convention states that it is the states parties that have the primary duty and responsibility to provide the protection of and the humanitarian assistance to the internally displaced population, Article 5(1). In order to be able to best do this, the states parties are under the obligation, “shall”, cooperate with other states parties when asked to do so by the concerned states party or the Conference of States Parties, Article 5(2). The states parties are obliged to make assessments of the needs and vulnerabilities of the internally displaced as well as their host communities, and to facilitate such assessments, and this should be done in cooperation with international organizations or agencies, Article 5(5). The states parties are under the obligation to provide protection and assistance to the internally displaced, and if they are not able to do this then they are obligated to cooperate with international organizations, humanitarian agencies, civil society organizations and other actors, Article 5(6). Furthermore, the states parties are obliged to organize humanitarian and impartial relief action as well as guaranteeing security to such relief organizations, as well as allowing for passage of all consignment,

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equipment and personnel, Article 5(7). The humanitarian principles of humanity, neutrality, impartiality and independence of the humanitarian actors shall be respected by the states parties, Article 5(8). The internally displaced persons have the right to request or seek protection and assistance and the states parties are obliged to respect this right, Article 5(9). The states parties are also under the obligation to respect, protect and not to attack or harm humanitarian personnel and the resources and materials that have been provided for the internally displaced population, Article 5(10). Furthermore, it is the states parties that are under the obligation to ensure that all armed groups act under their obligations according to Article 7 (Article 5(11)). Article 7(4) directly addresses the members of armed groups, stipulating that if such members violate the rights of internally displaced persons, they shall be held criminally responsible: Members of armed groups shall be held criminally responsible for their acts which violate the rights of internally displaced persons under international and national law.

Furthermore, Article 7(5) bans members of armed groups from first of all carrying out arbitrary displacement and hampering the protection and the carrying out of assistance to the internally displaced, but also from “[d]enying internally displaced persons the right to live in satisfactory conditions of dignity, security, sanitation, food, water, health and shelter; and separating members of the same family” (c). Members of armed groups are also specifically forbidden to recruit internally displaced “children or requiring or permitting these children to take part in hostilities under any circumstances”, Article 7(5)(e). In addition the members of armed groups are forbidden to “[f]orcibly recruiting persons, kidnapping, abduction or hostage taking, engaging in sexual slavery and trafficking in persons especially women and children” (Article 7(5)(f)). The members of the armed groups are also prohibited from “[i]mpeding humanitarian assistance and passage of all relief consignments, equipment and personnel to internally displaced persons” (Article 7(5)(g)) and from “[a]ttacking or otherwise harming humanitarian personnel and resources or other materials deployed for the assistance or benefit of internally displaced persons and shall not destroy, confiscate or divert such materials” (Article 7(5)(h)). Furthermore the members of the armed groups are under the obligation not to violate “the civilian and humanitarian character of the places where internally displaced persons are sheltered and shall not infi ltrate such places” (Article 7(5)(i)). The states parties are here obligated to “[e] nsure individual responsibility for acts of arbitrary displacement, in accordance with applicable domestic and international criminal law”, according to Article 3(g). During the time of displacement the states parties are according to Article 9(1) to refrain from and prevent discrimination, genocide, crimes against humanity, war crimes and other violations of humanitarian law, arbitrary killing,

Internally Displaced Persons

summary execution, arbitrary detention, abduction, enforced disappearance or torture, and other forms of cruel, inhuman or degrading treatment or punishment, starvation as well as: Sexual and gender based violence in all its forms, notably rape, enforced prostitution, sexual exploitation and harmful practices, slavery, recruitment of children and their use in hostilities, forced labour and human trafficking and smuggling [d].

Furthermore, according to Article 9(2), during the time of internal displacement the states parties are under the obligation to: c.

d.

Provide special protection for and assistance to internally displaced persons with special needs, including separated and unaccompanied children, female heads of households, expectant mothers, mothers with young children, the elderly, and persons with disabilities or with communicable diseases; Take special measures to protect and provide for the reproductive and sexual health of internally displaced women as well as appropriate psycho-social support for victims of sexual and other related abuses;

… h.

Take necessary measures, including the establishment of specialized mechanisms, to trace and reunify families separated during displacement and otherwise facilitate the re-establishment of family ties;

… k.

States Parties shall consult internally displaced persons and allow them to participate in decisions relating to their protection and assistance.

…

Under Article 12 the states parties are under the obligation to provide internally displaced with effective remedies, and to create a legal framework in order to be able to provide compensation and other forms of reparations. Importantly the Convention provides in Article 13 for the obligation of the states parties to register and provide personal documentation to the internally displaced: 1. 2.

States Parties shall create and maintain an up-dated register of all internally displaced persons within their jurisdiction or effective control … States Parties shall ensure that internally displaced persons shall be issued with relevant documents necessary for the enjoyment and exercise of their

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3.

4.

rights, such as passports, personal identification documents, civil certificates, birth certificates and marriage certificates. States Parties shall facilitate the issuance of new documents or the replacement of documents lost or destroyed in the course of displacement, without imposing unreasonable conditions, such as requiring return to one’s area of habitual residence in order to obtain these or other required documents. The failure to issue internally displaced persons with such documents shall not in any way impair the exercise or enjoyment of their human rights. Women and men as well as separated and unaccompanied children shall have equal rights to obtain such necessary identity documents and shall have the right to have such documentation issued in their own names.

A Conference of States Parties is to be established to monitor and review the implementation of the Convention (Article 14(1)), and the Convention is to be applied “to all situations of internal displacement regardless of its causes” (Article 15(1)). In the “Saving Clause” in Article 20(3) of the Convention, it is made clear that internally displaced persons retain the right “to lodge a complaint with the African Commission on Human and Peoples’ Rights or the African Court of Justice and Human Rights, or any other competent international body”. The Kampala Convention, which is the only regional or international convention providing for the protection of the rights of the IDP population, gives legal protection to internally displaced persons ,which is very much needed not only in the African continent, but in all countries which have an internally displaced population. In the following segment a presentation is given on the situation for the internally displaced population in Colombia, where the Colombian Constitutional Court has issued some very important decisions on the rights of the IDPs, including decisions separately regarding the rights of women, children, youth, adolescents, the Afro-descendants and the indigenous population, which are the most exposed groups of the IDP population in the country. 9.7.

Internal Displacement in Colombia

Colombia has an estimated 3.8 million internally displaced, and the IDP population in Colombia according to UNHCR amounts to about 8 per cent of the whole population of 45 million people.109 Almost all the country’s municipalities have been affected by internal displacement, and the groups that are especially

109 WOLA, WOLA and Partners send packet of information to Members of Congress, June 15, 2007, and Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 1

Internally Displaced Persons

affected are women, children under the age of 18 years, elderly and individuals with disabilities as well as the Afro-Colombian and indigenous populations.110 In Colombia displaced women and girls are raped more often than other women and girls from poor areas or in the country as a whole.111 The Liga de Mujeres Desplazadas has reported that 34 per cent of displaced women that it had interviewed said that armed actors had further been threatening or intimidating them.112 Of all internally displaced children, the largest group of children displaced are between 0–4 years, of all children 31 per cent are between 0–4 years of age, 29 per cent are between 5–9 years, 26 per cent between 10–14 years and 13 per cent between 15–17 years.113 There are also a many adolescent girls who get pregnant among the internally displaced in Colombia (ICBF reports that about 19 per cent of the IDP adolescent girls get pregnant) as these girls engage in sexual activities and sometimes get married at a too early age because of the poverty and constant pressures that come with being displaced.114 Some exchange sex for money, clothes or even to be able to go to school. The first reason why people become displaced is the threats and the pressures to collaborate with the different armed groups.115 The second reason is the armed confrontations, and the third reason is the murders and the massacres. Displacement also takes place to escape forced recruitment of children into the different armed groups, and because of forced disappearances, extortion and kid-

110

111

112

113

114

115

Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 1-2 Women’s Commission for Refugee Women and Children, Unseen millions: The catastrophe of internal displacement in Colombia: Children and Adolescents at Risk, March 2002: see also Watchlist on Children and Armed Confl ict, Colombia’s War on Children, February 2004, p. 20 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October, 2006, para. 79; www.cidh.org/countryrep/ColombiaMujeres06eng/I-II.htm Valdes, A. and Sarabia A., 1. Niños y niñas en condiciones de desplazamiento forzado, p. 140, in Ministerio de la Proteccion Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006: The department of Antioquia has the most internally displaced persons in Colombia. Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October, 2006, para. 84; www.cidh.org/countryrep/ColombiaMujeres06eng/I-II.htm Duran Strauch, E., The rights of children in the context of the armed conflict in Colombia, 2006, p. 3

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nappings, torture, political, ethnic or religious persecutions, fumigations and to get away from antipersonnel landmines.116 The Inter-American Commission for Human Rights stated already in 1999 that the situation for the IDPs in Colombia is nothing less than a “humanitarian catastrophe”, and that it is one of the most problematic aspects of the country’s human rights situation, where internal displacement not only is an indirect consequence of the internal conflict itself, but where the civilian population in many cases are the direct targets of the different actors in the conflict, mainly guerrilla and paramilitary groups.117 9.7.1.

The Constitutional Court of Colombia and the Rights of Internally Displaced Persons

Colombia’s Constitution from 1991 provides for the respect and protection of human rights, and through the tutela process all judges in Colombia are able to enforce and ensure the human rights of the people.118 A tutela “is a constitutional complaint that any citizen can bring before any judge in order to seek an immediate judicial injunction against actions or omissions of any public authority that violates his or her fundamental rights. Courts must hand down a ruling within ten days of receiving a tutela petition. Then, all tutela decisions are automatically sent to the Constitutional Court.” 119 The Constitutional Court has reviewed about 30 tutelas on the situation for IDPs of which T-025 of 2004 is the most important, and to render this decision the Court applied the Guiding Principles which since that decision has become “the core of the judicial enforcement of IDPs rights” in Colombia.120 The Court reviewed more than 100 tutela decisions in the case of T-025 and came to the conclusion that the government had disregarded the fundamental rights of the IDPs in a “massive, protracted and reiterated manner,” and that the reasons for these violations were because of “structural failures of the government” to the extent that the situation amounted to an “unconstitutional state of 116

Duran Strauch, E., The rights of children in the context of the armed conflict in Colombia, 2006, p. 3 117 The Inter-American Commission on Human Rights, Third Report on the human rights situation in Colombia, 1999 118 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 2 119 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 2 120 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 2-3

Internally Displaced Persons

affairs”.121 It was the gap between the law providing rights and protection of the IDPs and the few financial resources that the government actually provided to the protection of and assistance to the IDPs, and the lack of institutional state capacity to have public policies implemented that were the causes of the structural problems.122 In the T-025 the Court protected all IDPs “past, present, future” and not only the individual petitioners, and it gave several orders of different actions that the government needed to implement in order to put an end to the unconstitutional state of affairs, and they included:123 (i)

The Court ordered the national and territorial entities to adjust their budgets and programs in order to close the gap between their commitments concerning IDPs, and the level of resources allocated and their institutional capacity to act to protect IDPs rights. They could do it autonomously and gradually, but within a predefined timetable. (ii) The Court, following the Guiding Principles, established minimum mandatory levels of protection of IDPs’ rights. (iii) The Court ordered that in the adoption of the decisions aimed at overcoming the unconstitutional state of affairs, authorities were to provide the organizations that represent IDPs effective participation in the correction of the structural failures highlighted by the Court. (iv) Since the orders amounted to a huge and costly reform, the Court said that, should the government identify the need for a re-definition of the legal framework in force since 1997 (Law 387 of 1997) or a modification of the State policy on account of budgetary restrictions, it would have a term of one year to think about it. Then it could make a public statement announcing that it was impossible for the government to fulfi ll its legal commitments and thus it would amend them to diminish its obligations. Fortunately, the government opted to maintain its commitments and decided to increase significantly the budget for IDPs programs and embark on several reforms. (v) Finally, the Court retained its jurisdiction over the case in order to supervise the gradual advancement in the closure of the gap between promises and results and to be sure that the government effectively directed its policies to protect IDPs rights. In the last four years, the Court has issued 37 follow-up decisions after evaluating the periodic reports submitted by the government 121

Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 3 122 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008 p. 3 123 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 3-4

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and assessing the opinion of IDPs organizations, UNHCR and oversight independent agencies, such as the Ombudsman and the National Public Attorney.

From a judge’s perspective “the Guiding Principles provided the criteria to define the content and the scope of the IDPs’ fundamental rights”, and as the T-025 decision “adopted a gradual approach to overcome the unconstitutional state of affairs, the Guiding Principles provided a basis for setting standards concerning the minimum levels of satisfaction of IDPs’ rights”, and that “the creation or reform of the basic institutional infrastructure to protect rights implies positive duties and responsibilities of the government”.124 Once the decision T-025 had been issued, a complicated follow-up process began which was the second stage of the legal protection of the rights of the IDPs and at this stage the Guiding Principles played an important part.125 The first issue was how it would be possible to measure the progress that the government had/should have taken to improve the situation and find solutions for the IDPs, for which the government was to establish result indicators to measure this progress which took two years for the government to do, and in this process the Guiding Principles “provided the criteria to define what precisely the indicators had to measure”.126 As Justice Cepeda-Espinosa explained the Constitutional Court demanded from the government that “for such indicators to measure the effective enjoyment of the rights by IDPs.”127 The Court’s decision and follow-up process empowered the IDP community and its leaders, who got more involved and therefore more in the limelight, which in turn increased the risks to their lives, and in this context the Court ordered that the government create a special plan that would assess the risks these leaders faced and then provide these leaders with adequate protection.128 Again here the Guiding Principles provided the judicial foundation for the Court, as the Court “interpreted the right to life and personal integrity in the light” of them. 124 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 4 125 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5 126 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5 127 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5 128 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5

Internally Displaced Persons

The Court also needed to determine if the government’s general policies provided enough protection to the most vulnerable IDPs including children, women, disabled, elders, indigenous peoples and the Afro-Colombians.129 Here the government claimed that its policies gave adequate protection, even as many organizations argued that they did not, and the Court held many public hearings where representatives of the government needed to explain directly to the IDPs, “face to face”, “why these general policies were really sufficient”.130 As these hearings proceeded it became impossible for the government to continuing denying the state of affairs, and the government “ended up explaining why they had not been able to reach the most vulnerable and welcoming ideas about how to improve its performance”.131 Because these general policies were proven to be inadequate the Court made the decision “to issue several follow-up decisions, one for each especially vulnerable group of IDPs”, and it was the Guiding Principle 4 that provided the judicial foundation for the decisions regarding the specific IDPs’ need for differential treatment for which Auto 092 on women and Auto 251 on children and youth are examples of.132 The Court provided the names of 600 women and 18,000 children to the government in these two separate Autos “that had to receive complete humanitarian aid within a few weeks of the issuance of the Auto”, which was a way for the Court to be able to test whether the institutional capacity of the government had improved.133 Pilot programmes and pilot projects were ordered and they were to be developed with the involvement of the IDPs . While the constitutional state of affairs continues mostly because the government has not been able to fully improve its institutional capacity or has been able to show that the minimum levels of all IDPs rights are satisfactorily fulfi lled, former Constitutional Court judge Cepeda-Espinosa has listed a number of positive results and they include that the national budget for IDPs has multiplied by a factor of eight in fi xed dol129 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5 130 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 5 131 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 6 132 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 6 133 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 6

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lars since 2004; the government is changing public policies to include the protection of rights; progress has been made regarding providing health to the IDP population where 79 per cent are linked to the social security covering health care; 80 per cent of the IDP children are able to attend school; the “living conditions of IDPs have been kept on the public agenda”; the IDP organizations have been much empowered; the debate about how many IDPs there are also now importantly includes who the IDPs are and what their needs are; and there has been an increase in the accountability of the government.134 The follow-up decisions have included the Auto 092 for IDP women, 004 on the indigenous population, 005 on the Afro-Colombian population and Auto 251 for IDP children, adolescents and youth. With regards to the Auto 251 on children, the Court identified the specific risks and needs of the children, and ordered “the immediate application of pilot projects in the cities where the children were more exposed”.135 As a result of Sentencia T-025 the Court issued Auto 092 which concerns displaced women, and it needs to be taken into account here that about 52.3 per cent of the displaced population in Colombia are women.136 The Constitutional Court in its Auto 092 “ highlighted the disproportionate impact of violence on women and called on the state to prevent gender-based – especially sexual-violence against women in conflict and during or after forced displacement. It is also mentioned a series of particular risks of re-victimisation confronting displaced women who claim justice under the framework of the Justice and Peace Law.”137 Following Auto 092 the Court ordered in May 2008 the government and other governmental bodies through its adoption of positive action to develop 13 programmes in a participatory way which were to provide protection of, assistance to, and restitution of the rights of the internally displaced women, constituting:138 –

Prevention of the disproportionate impact of displacement on women;

134 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 7 135 Manuel José Cepeda-Espinosa, Justice, Constitutional Court of Colombia, The Judicial Protection of IDPs in Colombia: The importance of the Guiding Principles (Draft), Oslo, October 16, 2008, p. 6: Auto 251 will be described in its full further down. 136 Meertens, D., Forced displacement and women’s security in Colombia, Disasters, 2010, 34 (S2): S147-S164, p. S154; and Comisión de Seguimiento de las Politicas Publicas Sobre el Desplazamiento Forzado, Proceso Nacional de Verificación, Decimosegundo Informe, El desplazamiento forzado el caso de las mujeres, hogares y niños, niñas y adolescentes, por Garay S., Luis Jorge, Barberri G., Fernando, Ramirez G. Clara, Misas, Juan Diego, Prada P., Gladys C., Bogotá D.C., Marzo 4 de 2009, p. 5 137 Meertens, D., Forced displacement and women’s security in Colombia, Disasters, 2010, 34 (S2): S147-S164, p. S155 138 Meertens, D., Forced displacement and women’s security in Colombia, Disasters, 2010, 34 (S2): S147-S164, p. S155

Internally Displaced Persons

– – – – – – – – – – – –

Prevention of sexual violence; Prevention of domestic and community violence against women; Health care for displaced women; Special employment and productive opportunities for women head of households; Educational opportunities for displaced women; Access to land for displaced women; Protection of rights of indigenous women; Protection of rights of Afro-Colombian women; Participation and protection for women leaders in social and civic movements; Guarantee of the right to justice, truth, reparation and non-repetition; Psychosocial accompaniment; Elimination of barriers to protection programmes for women.

As a result, women’s groups and IDP organizations met in 2008 and 2009 to discuss and develop proposals of action to take, however mistrust was a major impediments to these discussions, and the government’s main response was finding ways to provide access to the displaced women to different public services, and did not base such access on a human right for the women.139 As Meertens explained it was the first time that the Court with its Auto 092 actually discussed why women were disproportionally affected by the armed conflict, and the reasons as to why specific positive action was required in their case. Furthermore by addressing the issue of reparations for instance, the Court connected humanitarian assistance with transitional justice as well as with development issues as

139

Meertens, D., Forced displacement and women’s security in Colombia, Disasters, 2010, 34 (S2): S147-S164, p. S155; A Working Group to Monitor Compliance with the Order 092- Justice and Sexual Violence (Mesa de Sequimiento del Auto 092) was subsequently established and the organizations that are members include: Consultoría para los Derechos Humanos y el Desplazamiento (CODHES) (Human Rights and Displacement Office), Corporación Casa de la Mujer (Foundation for the Protection of Women), Comisión Colombiana de Juristas (Colombian Commission of Jurists), Initiativa de Mujeres por la Paz (Colombian Women’s Pro-Peace Initiative), Centro de Estudios Derechos Justicia y Sociedad (Center for Studies in the Law, Justice and Society), Colectivo de Abogades José Alvear Restrepo (José Alvear Restrepo Lawyers’ Group), Liga de Mujeres Desplazados (League of Displaced Women), Ruta Pacífica de las Mujeres (Women’s Path to Peace), Mesa de Trabajo Mujer y Conflicto Armado (Working Group on Women in Armed Confl ict) and Corporacíon Sisma Mujer, Inter-American Commission on Human Rights, Annual Report 2009, Chapter V, Follow-Up Report –Violence and Discrimination Against Women in the Armed Confl ict in Colombia, Footnote 5 www.cidh.oas.org/annualrep/2009eng/ Chap.V.4.htm

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assistance was not just considered a matter of access but of rights that had been violated.140 The Constitutional Court in addition with regards to 600 identified internally displaced women gave out “individual orders of protection”, and to the Attorney General’s Office for “immediate investigation” referred 183 cases of crimes of sexual violence related to the armed conflict that had been carried out against women.141 As a further follow-up to T-025 the Constitutional Court adopted Auto 004 on the indigenous population and Auto 005 on the Afro-Colombian population on 26 January 2009, and in these Autos the Court stated that these two populations had been disproportionally affected by the armed conflict. In Auto 004 the Court stated that the indigenous groups “are in danger of being culturally and physically exterminated by the confl ict, and have been victims of very serious violations of their individual and collective rights and of International Humanitarian Law, all of which has resulted in their individual and collective forced displacement”, and in 005 the Court stated that “the fundamental rights of afro-Colombian individuals and communities are being massively and continuously ignored”.142 The Court identified in Auto 004 three groups of factors that caused the indigenous population’s disintegration, extermination and forced displacement and they included (i) “factors directly caused by the conflict”, such as militarization, massacres, false charges of terrorism brought against members of the indigenous population; (ii) “factors related to the conflict”, such as economic actors wanting access to the natural resources on the land belonging to the indigenous population or actors who want to get hold of their territory’s strategic location; (iii) “factors that are aggravated by the conflict”, for instance poverty.143 In Auto 004 the Court identified factors that make the indigenous community “more vulnerable to the causes of forced displacement” and the consequences of forced displacement, stating that it is not only individuals that are being affected but the group as a whole, and that factors such as the change of location going from rural to urban areas, poverty, and that leaders of indigenous groups that are be140 Meertens, D., Forced displacement and women’s security in Colombia, Disasters, 2010, 34 (S2): S147-S164, p. S155 141 Inter-American Commission on Human Rights, Annual Report 2009, Chapter V, Follow-Up Report –Violence and Discrimination Against Women in the Armed Conflict in Colombia, para. 31, www.cidh.oas.org/annualrep/2009eng/Chap.V.4.htm 142 IDMC, Internal Displacement Monitoring Centre, Constitutional Court of Colombia, Auto 004 of January 26, 2009, p. 35, translation IDMC, 3 July 2009, accessed 10/28/2010 143 Program on Global Justice and Human Rights, Los Andes University, First Report on the Colombian Government’s Compliance with the Terms of Constitutional Court Order 004 of 2009 Regarding the Displaced Indigenous Population, Executive Summary, March 2010, p. 1

Internally Displaced Persons

ing displaced many times receive threats to their lives are all part of the destruction culturally, socially and physically of these displaced groups and the group identity.144 The Court stated in Auto 004 that the government had insufficiently addressed the situation of the displaced indigenous population, and that it was not enough to only establish norms, issue documents and different statements and not practically implement them.145 The Court ordered that the government by July 2009 created a Program of Guarantees comprising all indigenous persons to prevent further displacement, and created for all the 34 indigenous peoples that the Court had stated were in serious danger of physically and culturally disappearing a Plan for Ethnic Preservation and Protection (Planes de Salvaguarda Étnica).146 The National Indigenous Organization of Colombia (ONIC) has stated that a normative framework exists but there are no implemented policies that protect the communities, and that the government has not implemented the orders given by the Court in Auto 004.147 ONIC reported in 2010 that 32.4 per cent of the indigenous population does not have access to healthcare and that 45 children from the Puinave, Curripaco and Sikuani communities died because of lack of medical attention in 2009.148 Furthermore according to ONIC, the indigenous communities have limited access to education in addition to high levels of dropout rates and illiteracy, and that the teachers are discriminated against in terms

144 Program on Global Justice and Human Rights, Los Andes University, First Report on the Colombian Government’s Compliance with the Terms of Constitutional Court Order 004 of 2009 Regarding the Displaced Indigenous Population, Executive Summary, March 2010, p. 1 145 Program on Global Justice and Human Rights, Los Andes University, First Report on the Colombian Government’s Compliance with the Terms of Constitutional Court Order 004 of 2009 Regarding the Displaced Indigenous Population, Executive Summary, March 2010, p. 1 146 Program on Global Justice and Human Rights, Los Andes University, First Report on the Colombian Government’s Compliance with the Terms of Constitutional Court Order 004 of 2009 Regarding the Displaced Indigenous Population, Executive Summary, March 2010, p. 1; The National Indigenous Organization of Colombia, ONIC, states that there are more than 64 such indigenous groups that risk extinction, see Testimony presented at the US Congress’s Tom Lantos Human Rights Commission Hearing on “The Rights of Indigenous Peoples: Latin America”, April 29, 2010 147 National Indigenous Organization of Colombia, ONIC, Testimony presented at the US Congress’s Tom Lantos Human Rights Commission Hearing on “The Rights of Indigenous Peoples: Latin America”, April 29, 2010 148 National Indigenous Organization of Colombia, ONIC, Testimony presented at the US Congress’s Tom Lantos Human Rights Commission Hearing on “The Rights of Indigenous Peoples: Latin America”, April 29, 2010

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of their salaries because of their ethnic background or because they work in the indigenous communities.149 With regards to Auto 005 regarding the Afro-Colombian population, it is important to keep in mind that while the number of Colombian children who die before the age of one is 21 per 100 children, the number for Afro-Colombian children is 44 of 100 children.150 The maternal mortality rate for Colombia is 73 deaths per 100,000 women, but in Chocó which has the highest number of Afro-Colombians the maternal mortality rate is 250 deaths per 100,000 women.151 Furthermore, 52.4 per cent of the Afro-Colombian population is between 0–24 years of age.152 The Afro-Colombian population has experienced long-standing discrimination of their socio-economic rights, social exclusion and huge inequalities in the Colombian society. Seventy-five per cent of the Afro-Colombians live in poverty or extreme poverty, and emergency assistance only reaches about 0.3 per cent of the population, 99.7 per cent are neglected by the government.153 Humanitarian assistance such as beds, cooking utilities reach 0.4 per cent and 99.6 per cent do not receive this assistance and as victims they are being completely neglected, and 97 per cent of the Afro-Colombians already live under the poverty level and displacement has worsened this condition. The Afro-Colombian children are much discriminated against with regards to education, and CIDH has stated that “about 10% of the afro-Colombian boys and girls between 6 and 10 years do not have access to education, which equals in percentage of non assistance to about 27% of the mestiza’s boys and girls. With regards to secondary education for children between 11 to 14 years about 12% do not have access to such education.” 154 Furthermore, high illiteracy rates, high dropout rates from school and limited access to higher education are all problems

149 National Indigenous Organization of Colombia, ONIC, Testimony presented at the US Congress’s Tom Lantos Human Rights Commission Hearing on “The Rights of Indigenous Peoples: Latin America”, April 29, 2010: One reason to why the indigenous communities do not always speak out about abuses is because of language issues such as not being able to speak Spanish. 150 Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 16, Translated by author. 151 Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 16, Translated by author. 152 Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 15, Translated by author. 153 Afrodes, Seminar at Global Rights, Washington D.C., October 28, 2010 and Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010 154 Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 16, Translated by author.

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that the Afro-Colombian population and their children and youth face.155 Studies have shown that problems of access, permanence and quality of education are the main reasons for low levels of schooling among the poor population.156 The most affected of the Afro-Colombian displaced population are children, young people and women, because of direct and indirect threats, forced disappearances, killings of husbands, sexual violence and forced recruitment, and the main perpetrators are the paramilitaries (39 per cent) and the guerrilla groups (33.5 per cent).157 Women are the most frequently victimized because the violence is aimed at the most vulnerable including children, women and especially young women in the age range of 15–24 years.158 The rulings 092 on women and 251 on children by the Constitutional Court have not been backed by the government despite many meetings between AfroColombian groups in different provinces, women’s groups and the government.159 The government has not implemented these rulings, nor the 13 programmes that the government was requested to implement by the Court regarding women. There has been no progress made and this needs to be seen in the context that rape and forcible recruitment of children continues and people including children are starving to death in some areas. Furthermore, 7–8 year olds are being recruited as informants by criminal groups. 9.7.1.1.

The Constitutional Court of Colombia and Its Tutela Decision T-025

Manuel José Cepeda Espinosa, Justice in the Colombian Constitutional Court (2001–2009), explains that “Colombian violence ordinarily includes acts such as massacres, selective murders, forced disappearances, extra-judicial executions, kidnappings, torture, extortion, forced recruitment of children and others by illegal armed actors, attacks against defenseless villages with internationally prohibited weapons (including, for example, rudimentary explosives such as domestic gas pipes used against civilians), blockades, confinements, mass arbitrary detentions, acts of terrorism, installation of anti-personnel mines and sexual assault of women and children”.160 Furthermore, Cepeda Espinosa says that it is the 155

Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 16, Translated by author. 156 Véase Conpes 3660 de 2010, footnote 17 in Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 16, Translated by author. 157 Afrodes, Seminar at Global Rights, Washington D.C., October 28, 2010 and Afrodes and Global Rights, Bicentenario¡Nada que celebrar!, July 2010, p. 28-29, translated by author. 158 Afrodes, Seminar at Global Rights, Washington D.C., October 28, 2010 159 Afrodes, Seminar at Global Rights, Washington D.C., October 28, 2010 160 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 3 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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armed conflict that is the main factor behind the forced displacement, caused either by a deliberate criminal act or as a consequence of the violence between the armed actors. It is the governmental Acción Social that “is in charge of the overall coordination of the system for assisting the displaced population”, and in the official database 1.9 million IDPs have been registered to have been displaced between 1995 and 2006, while the non-governmental organizations estimate the number of IDPs during that time period to be about 3.9 million.161 Not being able to deny the huge number of persons affected by displacement, the head of Acción Social officially acknowledged in 2005 that over three million persons had become internally displaced. There are several factors why the numbers differ and that the official database only has a limited number of internally displaced persons registered including “under-registration; refusal of registration by the officials in charge of feeding the system; systematic non-recognition of certain types of displacement (State-caused displacement through the aerial fumigation of crops, intra-urban or intra-shire displacement, and individual or ‘drop-by-drop’ displacement, which is difficult to track); reluctance of the victims to be officially recognized as IDPs; ignorance; and fear or impossibility of accessing State authorities”.162 It is especially for those persons who were displaced before the special presidential agency became in charge of the official database that under-registration is a main problem. The displaced population experience a cycle of human rights violations with factors such as “high levels of poverty; the loss of cultural and social bonds; the abandonment of the scarce patrimonial assets held before displacement; low levels of education; the shock of having experienced traumatic acts of violence; being forced to live in alien settings with no social or official support; severe difficulties in finding employment in urban areas; limited educational opportunities for children; and limited access to social security, health and pension benefits”.163 Over 50 per cent of the entire displaced population are children and youth under the age of 18 years, but in addition elderly persons and individuals with disabilities account for a high number of internally displaced all living mainly in marginalized urban areas.164 As a result of living in these dire conditions the in161

Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 4 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 162 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 4-5 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 163 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 5 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 164 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 5 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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ternally displaced experience “unusually high rates of premature pregnancy and childrearing; higher exposure to the risks of prostitution; forced recruitment and trafficking in human beings; initiation into criminal gangs; high levels of child and infant malnutrition; and an increase in domestic violence rates”.165 In 1997 the Colombian Congress adopted Law 387 which “contributed to identifying IDPs’ specificities and particular needs; officially recognized the gravity of the problem of forced displacement in Colombia; increased the visibility of and priority of assistance toward IDPs at all the relevant officials levels; countered the risks of policy discontinuance resulting from the periodic change of public officials; provided a stable framework for protection; distinguished the special situation of IDPs from the classic response to ‘emergencies’; created a bureaucracy specifically charged with assisting IDPs; involved the entire Colombian State within the response system; and initiated the introduction of a ‘rightsbased’ perspective for the protection of the rights of IDPs”.166 However there were significant gaps in not only the Law’s implementation but the implementation of the government’s whole IDP policy which according to the Constitutional Court were caused by mainly “the precariousness of the institutional capacity to implement the policy” and “the insufficient appropriation of funds”, which led to the Colombian Constitutional Court adopting the Decision T-025 in 2004, after the Court had examined hundreds of tutela petitions fi led by internally displaced persons.167 The Court stated in Decision T-025 that there were three levels of the institutional capacity of the state that were lacking, including “(i) the design and regulatory development of the public policy to respond to forced displacement; (ii) the implementation of the policy; and (iii) the follow-up and evaluation of the activities carried out during implementation of the policy”.168 The Court singled out seven issues with the government’s internal displacement policy, including “(i) the inexistence of a plan of action for the overall national system of assistance, precluding it from having a global view of the policy and its operation; (ii) a lack 165 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 5-6 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 166 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 7 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 167 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 7 and 9 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009: More than one thousand IDP families had presented the Constitutional Court with a dossier by 2003. 168 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 10 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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of specific goals, priorities or indicators; (iii) a vague distribution of functions and responsibilities between the different participating state entities; (iv) a perceived absence of policy elements regarded as fundamental by its implementing agencies; (v) a lack of implementation and development of many of the policy’s elements, including those that concerned the participation and information on IDPs, the administration of international cooperation in the field, awarenessraising activities, the training of responsible public officials and the recognition of gender-, ethnicity- and age-based specificities among the target population; (vi) the excessive rigidity of the system’s design in the provision of emergency humanitarian aid; and (vii) a lack of clarity in the distribution of functions among competent entities in the field of urban productive projects”.169 With regards to the inadequate funding for the implementation of the state IDP policy the Court recognized the challenging economic situation of Colombia, but at the same time the Court argued that “from the constitutional point of view, it is imperative to appropriate the budget that is necessary for the full materialization of the fundamental rights of displaced persons. The State’s constitutional obligation to secure adequate protection for those who are experiencing undignified living conditions by virtue of forced internal displacement may not be indefinitely postponed … This Court’s case-law has reiterated the priority that must be given to the appropriation of resources to assist this population and thus solve the social and humanitarian crisis generated by this phenomenon …”170 The Court stated that institutions and the Ministry of Public Finance had not calculated the budget which would be necessary to help protect the IDP population and stated that “thus the Constitution has been disregarded, as well as the mandates of Congress and the contents of the development policies adopted by the Executive itself”, and that to correct the situation it would be necessary “for the different national and territorial entities in charge of assisting the displaced population to fully comply with their constitutional and legal duties, and to adopt, in a reasonable term and within their spheres of jurisdiction, the necessary corrective measures to secure sufficient budgetary appropriations”.171 The Court ruled that because the state had not been able to provide adequately for a timely and effective protection of the rights of the IDPs, the IDPs 169 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 10-11, footnotes omitted, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 170 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 16, footnotes omitted, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 171 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 16-17 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

Internally Displaced Persons

“rights to personal integrity, equality, petition, work, health, social security, education, minimum subsidence income, housing, land protection, return and re-establishment and to a dignified life were all being continually violated on account of the unconstitutional state of affairs”.172 In this respect the Court ruled that the state had not given the special protection needed to elderly persons, women (especially female heads of households), children and members of ethnic groups. By ruling that the situation for the IDP population constituted an unconstitutional state of affairs, the Court made it possible to include the whole internally displaced population into the decision and therefore Decision T-025 was not only for the individuals who had fi led tutela petitions.173 Furthermore, after having ruled that the situation amounted to an unconstitutional state of affairs, for the first time with regards to IDPs the Court maintained its jurisdiction over such a case and in turn ordered several Autos that made it possible for the Court to follow-up on its original decision and was a way to ensure the implementation of T-025.174 After having held several thematic hearings during 2007 and 2008 on various IDP topics the Court issued six Autos which concerned particular vulnerable groups within the IDP population affected by the armed conflict taking into account their needs and the particular risks they were facing: Auto 092 of 2008 on women and girls, Auto 251 of 2008 on children and adolescents, Auto 004 of 2009 on indigenous peoples, Auto 005 of 2009 on the Afro-Colombian population, Auto 006 of 2009 on persons with disabilities and Auto 200 of 2007 on the protection of leaders of the displaced populations and IDPs at risk.175 Through its Decision T-025, the Court incorporated the constitutional rights of the internally displaced population into the state public IDP policy, and in doing so worked to balance the rights “while establishing minimum, mandatory levels of satisfaction under any circumstance”.176 As a result some form of judicial control became part of the public IDP policy, a common basis for dialogue was established among all the different actors (which led to the NGOs and IDP organ172

Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 17 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 173 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 18 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 174 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 19 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 175 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 19 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 176 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 21 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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izations having said that Decision T-025 is used as a foundation for their claims), and in terms of being able to evaluate the implementation of results of the public policy the decision offered a new criteria where the actual adequacy of any assistance could be measured (and not only economic or organizational criteria, etc.).177 Importantly the Court made all the different types of IDP rights indivisible of each other, making all rights, that is so-called first-generation rights (life, integrity, equality, basic freedom), economic, social and cultural rights (health, education, housing, minimum subsistence income) and collective rights (e.g. rights of ethnic groups), equally important.178 The Court based its decision on especially two sources, “its own prior case-law” where the rights of the displaced, social, economic, cultural rights and collective rights have all been upheld by the Court; and on the UN Guiding Principles on Internal Displacement from 1998.179 The Court applied the Guiding Principles “as a basic criteria to determine the scope of IDP’s fundamental rights and the extent of the State’s obligations to protect them”. The application by the Court of the Guiding Principles “was grounded on concrete constitutional clauses (Articles 9, 93 and 94 of the Constitution) which state that constitutional rights must be interpreted according to international human rights and international humanitarian law. Thus, the Guiding Principles showed how general rights provided specific protection to IDPs according to their needs.”180 While the Court took into account the limited economic resources available to the government and argued that there needed to be a balance between the resources available, the plaintiffs’ needs and the protection of the constitutional rights of the IDP population, the Court ruled that:181 [T]he Court highlights that there exist certain minimum rights of the displaced population, which must be satisfied under all circumstances by the authorities, given that the dignified subsistence of the people in this situation depends on it.

177

Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 21 in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 178 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 31, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 179 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 32, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 180 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 32, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 181 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 22, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

Internally Displaced Persons

These minimum rights of the IDPs (as guaranteed by the Constitution and internationally recognized rights binding upon the Colombian government) that were to be respected and protected at all times were the right to life; the right to dignity and to physical, psychological and moral integrity; the right to family life and to family unity and reunification; the right to a basic level of subsistence, including food, water, shelter, clothing, essential medical services and sanitation (obtained chiefly through the provision of emergency humanitarian aid); the right to health care, particularly in cases of children and infants; the right to protection from discrimination based on the conditions of IDPs; the right to basic education for children under 15; the right to self-sufficiency through the identification of alternatives for dignified socioeconomic stabilization; and the right to return and re-establishment.182 In Decision T-025 the Court took into account the Colombian Constitution and the Guiding Principle 17 stating that the right to family life and family unity and reunification was a minimum right to be upheld always:183 3.

The right to a family and to family unity, enshrined in articles 42 and 44 of the Constitution, and clarified for these cases in Principle 17, especially – although not exclusively – in cases of families that include persons who are specially protected by the Constitution – children, elderly persons, persons with disabilities or women providers – who have the right to be reunited with their families.

Stating that the provision of emergency humanitarian aid was a minimum right the Court ruled:184 4.

[T]he Court must also point out that there are two types of displaced persons that, because of their particular conditions, have a minimum right to receive emergency humanitarian aid for a period of time which is longer than the legally established one: such is the case of (a) persons in situations of extraordinary urgency, and (b) persons who are not in a condition to assume their own self-sufficiency through a stabilization or socio-economic re-establishment project, such as children without guardians and elderly persons who, because of their old age or their health conditions, are not fit to generate income; or

182 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 23-26, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 183 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 24, Footnote 28, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 184 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 24, Footnote 29, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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women providers who must devote their entire time and efforts to take care of infant children or elderly persons under their responsibility. In these two types of a situation, it is justified for the State to continue providing the humanitarian aid required for the dignified subsistence of the affected persons, until the moment in which the circumstances at hand have been overcome … The Court notes that, even though the State cannot abruptly suspend humanitarian aid to those who are not capable of self-sufficiency, people cannot expect to live indefinitely off that aid, either.

The Court specifically applied the Constitution with regards to the protection of internally displaced children’s right to health as a compulsory minimum right as it held that:185 5.

The right to health (Article 49 of the Constitution), whenever the provision of the corresponding healthcare service is urgent and indispensable to preserve the life and integrity of the person, in cases of illness or wounds that threaten them directly, or to prevent contagious or infectious diseases, in accordance with Principle 19. On the other hand, in the case of children, article 44 shall apply, and in cases of infants under one year of age, article 50 of the Constitution shall apply.

The Court specifically signalled out the right to basic education for children under the age of 15 years as a minimum right that always needs to be observed referring to the Constitution, arguing that the Constitution affords the internally displaced children broader protection than Guiding Principle 23 does:186 7.

185

For the case of displaced children, the right to basic education until fi fteen years of age (article 67, paragraph 3, of the Constitution). The Chamber clarifies that, even though Principle 23 establishes the State duty to provide basic primary education to the displaced population, the scope of the international obligation described therein is broadened by article 67 of the Constitution, by virtue of which education shall be mandatory between five and fifteen years of age, and it must comprise at least one pre-school year and nine years of basic education. … the State is bound, at the minimum to secure the provision of a school seat for each displaced child within the age of mandatory education, in a public educational institution. That is to say, the State’s minimum duty in regards to the education of displaced children is to secure their access to educa-

Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 24, Footnote 30, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009 186 Manuel José Cepeda Espinosa, The Constitutional Protection of IDPs in Colombia, Chapter 1, p. 25, Footnote 32, in Arango Rivadeneira, Rodolfo, Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009

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tion, through the provision of the seats that are necessary in public or private entities of the area. [This was the order issued by the Court in Decision T-215 of 2002 to the respondent Municipal Education Secretariat: to secure access to the educational system by the plaintiff children, using the available places in the schools of the area. This preferential treatment for displaced children is justified, not only because education is one of their fundamental rights – as happens with all the other children in the national territory – but because of their especially vulnerable conditions they receive reinforced constitutional protection, which means, in the educational field, that if at least their basic education is not secured, the effects of displacement upon their personal autonomy and the exercise of their rights will be worsened.]

The Court decided in T-025: “First. – To Declare the existence of an unconstitutional state of affairs in the situation of the internally displaced population, due to the lack of coherence between the seriousness of the violation of the rights recognized in the Constitution and developed by the legislation, on the one hand, and the volume of resources effectively destined to secure effective enjoyment of said rights and the institutional capacity to implement the corresponding constitutional and legal mandates, on the other hand.”187 9.7.1.1.1.

The Constitutional Court of Colombia and Auto 251 on Boys, Girls, Teenagers and Adolescents

The Constitutional Court of Colombia adopted the follow-up Order 251 on 6 October 2008 on the protection of the fundamental rights of boys, girls, teenagers and adolescents that were affected by internal displacement caused by the armed conflict.188 The Court had held a technical information hearing in June 2007 where also IDP children under the age of 18 years participated. After having ruled in Decision T-025 that the situation for the internally displaced population was “an unconstitutional state of affair”, the Court in Auto 251 stipulated that the internally displaced children and adolescents were the weakest and most defenceless victims of the whole IDP population, and that they were at the same time also often victims of crimes and structural problems outside of their control and responsibility and unable to either resist or deal with these

187 Colombian Constitutional Court, Decision T-025 of 2004, Republic of Colombia, Constitutional Court, Third Review Chamber, Decision No. T-025 of 2004, IV. Decision. 188 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008); Everything in this section on Auto 251 is translated by the author, unless otherwise noted.

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problems and that these conditions negatively affected their personal development.189 The Court argued that the increase of the number of children and adolescents that have been displaced amounting to about one million, together with that their situation continued to deteriorate required that the national authorities including the Constitutional Court responded to their situation as a matter of priority.190 Furthermore the Court stipulated that the prevention and protection measures that were to be immediately adopted needed to correspond to the unconstitutionally unacceptable and urgent situation for the internally displaced children and adolescents that was part of the continuity of the unconstitutional state of affairs that had been previously declared by the Court.191 The protection measures that were to be immediately adopted were the consequence of the unconstitutional state of affairs with regards to the internally displaced children and adolescents. The Court argued that after the adoption of its Decision T-025, in which the Court had issued several orders that would guarantee the protection of the IDP population, including Auto 218 of 2006, and after especially what the public “seminars” in February 2008 had made so clear, the unconstitutional situation remained and the massive, systematic and profound violations continued. The Court explained that it was able to maintain its competence in the case, referring to the Decree 2591 of 1991 and that its competence was within the framework of the follow-up process of the carrying out of the orders that were issued from Decision T-025, and the Court was thus able to “verify whether the authorities had adopted the necessary measures to ensure the effective enjoyment of the fundamental rights by the internally displaced persons”.192 In Auto 218 of 2006, the Court had determined that the unconstitutional state of affairs continued and that with regards to those groups of the IDP population that deserved an urgent intervention there was “a lack of specific political attention given to the different components”, which had resulted in that the government had not been able to demonstrate any significant improvements for

189 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 1. 190 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3. 191 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 4. 192 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.2.1.

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the groups that enjoyed special constitutional protection.193 Here the Court stated that “from this is derived that it is necessary to adopt a differential approach which specifically recognizes that displacement affects the population differently depending on age and gender”.194 The Court stated, referring to its prior decisions, that “it was necessary to adopt a differential approach which recognized, among others, the rights and the special needs of children who are victims of enforced displacement”.195 Furthermore the Court argued that without disregarding the improvements that had taken place by different governmental entities in terms of protecting the IDPs in general, the present situation showed that these actions had not translated into concrete, integrated and differentiated actions oriented towards solving the critical situation for the displaced children.196 The Court also stated that the Colombian Constitution has special provisions for both children and adolescents that guarantee their specific rights, Article 44 for children and Article 45 for adolescents. The Court referred to a list of international human rights treaties and other international instruments as they related to children and adolescents arguing that such treaties and instruments that Colombia were bound by were directly and automatically incorporated into a catalogue of guarantees in the Constitution as expressly mandated in Article 44.197 These treaties and instruments include the UN Declaration on Human Rights, The American Declaration on the Rights of Man, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the American Protocol on Human Rights Concerning Economic, Social and Cultural Rights (the San Salvador Protocol), international humanitarian law which the Constitutional Court said was “clearly applicable to the internal Colombian armed conflict” (see Sentence C-291 of 2008), Additional Protocol II

193

Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.3.2. 194 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.3.2. 195 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.3.3. 196 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.3.3. 197 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.4.2.1.

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of the Geneva Conventions (Article 4(3)), the UN CRC (Article 38(1)) and the Guiding Principles on IDPs (Principle 4(2)).198 Article 44 of the Constitution from 1991 reads:199 These are the fundamental rights of the children: to life, to physical integrity, to health and social security, to a well-balanced diet, to a name and nationality, to have a family and not to be separated from it, to care and love, to education and culture, to recreation and the free expression of their opinion. They are protected against all forms of abandonment, physical and moral violence, kidnappings, sales, sexual abuse, labor or economic exploitation, and dangerous work. They also have other rights established in the Constitution, the laws and in the international treaties ratified by Colombia. The family, the society and the State have the obligation to assist and protect the children by guaranteeing their harmonious and integrated development and the full exercise of their rights. Anyone can demand that a competent authority have these rights observed and to sanction the offenders. The rights of the children prevail over other rights.

The Court argued that there was a constitutional and an international obligation on the part of the government to adopt a strictly differentiated approach for the prevention of internal displacement of and its disproportionate impact on boys, girls and adolescents.200 The Carta Politica (of the Constitution) and the international treaties and documents on human rights and international humanitarian law adopted by the government obligated the government to adopt a preventive approach which was sufficiently differentiated and specific to address the causes of the IDP phenomenon and its misappropriate impact on children and adolescents.201 Here the Court specifically referred to the Guiding Principles 5 and 6. The Court specifically held that:202

198 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.4.2. 199 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.4.1. 200 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.5. 201 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.5. 202 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de oc-

Internally Displaced Persons

The Second Division of the Constitutional Appeals Court has learnt through a number of channels (which are mainly Rights of Petition, Guardianship Actions under the revision of the Court, and a number of reports submitted by public, private, and international institutions) about the specific, individual, and particular situation that eighteen thousand (18,000) people underage including babies, children, and teenagers are enduring due to the forced internal displacement situation they are in. These said cases of clear forced displacement that are taking place in different zones of the country are bluntly violating the fundamental rights of these clearly individualized people underage, according to the patterns stated in this Instruction, and they require an immediate State solution by order of the Carta Política in the framework of the T-025 (year 2004) Instruction for Guardianship follow-up, and because of the overrunning of the unconstitutional situation there declared; this latter obviously, specifically, and pressingly embodied by the mentioned eighteen thousand people underage, a situation that requires a solution at this level too. Being the Highest Constitutional Judge, the Constitutional Court must act decidedly against the obvious rights violations that are shaping the circumstances under which these eighteen thousand people underage live their lives.

The Court generally commented on the high number of internally displaced children and adolescents and the causal factors of the quantatively disproportionate impact of the displacement on the children, referring to that over 50 per cent of the internally displaced are children.203 Here the Court argued that while different public institutes and organizations present different numbers of persons who have become displaced, when it comes to children and adolescents the numbers all show that most IDPs are children and adolescents and that they constitute one of the groups that are the most victimized by this phenomenon. The Court argued importantly that there is consensus that the persons most affected by displacement are children and adolescents. The Court argued that the magnitude of these numbers and that displacement disproportionally impacted children and adolescents were explained by various causal factors that take place simultaneously. Here the Court argued that some of these factors were clearly identifiable, and focused on specifically three such factors. The first such factor was the dynamics of the armed conflict and its actors, which lead to that young men and adult men constitute most of the fatal victims of confrontations between the armed groups, and that the majority of victims of homicides and disappearances are men. In turn it is the women and their children and the youngest that most often survive these confrontations, but

tubre de dos mil ocho (2008), para. I.6., This paragraph was translated by Sara Morales-Loren, Technical translator and proofreader. 203 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. II. A. 1.

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need to flee from these circumstances and become forcibly displaced as a result in order to survive. A second causal factor is the exposure of the children under 18 years to certain violent situations and that it is the children compared to the rest of the population that are most often victims of for instance terrorist acts, combat and crossfires, confinement of the communities, massacres of the civilian population, and threats about such violence acts. Thirdly, the Court listed six special risks that the boys, girls and adolescents are specifically exposed to and that cause the displacement of them, their families and communities: (1) becoming victims of individual crimes which are deliberately committed against their life and personal integrity by the armed actors; (2) the forced recruitment by the illegal armed groups; (3) that they are frequently the majority of victims of antipersonnel landmines and explosive materiel (ordnance); (4) becoming incorporated into illegal commerce supported by illegal armed groups; (5) being the victims of sexual violence against girls and adolescents, also boys; (6) that they need to abide by the strategies of social control by the illegal armed groups that operate in different zones of the country, which impose restrictive rules on behaviour and pose a risk to the children under 18 years of age.204 The Court identified eight different types of problems that the children who are internally displaced are facing:205 (a)

(b) (c)

(d) (e) (f) (g)

grave problems regarding lack of protection concerning different risks and threats that directly affect their rights in the areas of mistreatment; the violence; the exploitation; trafficking; begging and the life on the street; the use of them in illegal trade; the social control by the illegal armed actors and the presence of gangs and criminal groups where they live; grave problems concerning hunger and malnutrition; grave problems and mainly preventable problems in the area of health, that follows from the lack of food they are suffering from, such as from their unhealthy living conditions and the precarious state response; grave problems in the area of education, essentially regarding coverage and access, continuance, flexibility and adaptability of the system; grave problems concerning psychosocial health; grave problems in the area of recreation; grave problems in the areas of the capacity to participate and to organize;

204 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 31 205 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 2.2., p. 13: With regards to the term ‘trafficking’, Richard Villegas translated.

Internally Displaced Persons

(h)

grave problems regarding exercising their rights such as that they are the victims who are especially defenseless in the face of the armed confl ict and crime. (in their exercise of their rights)

The Court stipulated that one of the fundamental ways in order to find a way to prevent the disproportionate impact of internal displacement on children is to identify “with total clarity the factors which cause this impact”, as well as presenting steps/measures to give complex orders aimed at “warding off ” these causal factors, and the Court argued for the need to explain the scope of the special risks and the way that they contributed to triggering the severity that the displacement puts upon the children/minor victims.206 The Court ruled that these special risks and factors are all criminal acts and grave violations of the Colombian Constitution, international human rights and international humanitarian law, and that the children as victims of these criminal acts “should have their prevailing rights duly restored: before, during and after the forced displacement”.207 The Court examined all the six risks, and argued with regards to the element of “voluntary recruitment” of children and adolescents that the “voluntary recruitment” of children and adolescents was the result of a perverse, psychological, social and deceitful manipulation by members of these criminal structures, the guerrillas and the paramilitary groups, as well as of several different and complex factors of vulnerability, and the material and psychological conditions that these children were subjected to.208 The Court also stated that in recent years the average age of children being recruited had dropped from 13.8 years of age in 2001 to 12.8 years of age in 2006.209 In explaining “voluntary recruitment” the Court made reference to reports by the UN Committee on the Rights of the Child and the Colombian Defensoría del Pueblo. The UN Committee on the Rights of the Child had in a report from 2006 pointed out the social groups in Colombia that were particularly vulnerable to forced recruitment and whose children were especially vulnerable, such as the children from the Afro-Colombian community, the indigenous communities, peasant families, marginalized groups and the displaced communities, and that these children were exposed to discrimination 206 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 31-32 207 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 32 208 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 40-41 209 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 41

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in terms of access to education, health care and other benefits, and that these vulnerabilities put the children at a greater risk of being forcibly recruited.210 The Colombian Defensoría del Pueblo underlined in one of its reports that “there exist social, family, economic, cultural and emotional elements which constitute factors that make children and adolescents vulnerable to becoming recruited by the illegal armed groups. The contexts of economic deprivation, the lack of access to services such as education, health care, welfare and recreation, as well as lack of access to networks of emotional support and protection, among other conditions of vulnerability, all influence the way that this population enter into the ranks of the illegal armed groups.”211 The Court discussed the differential approach that needed to be taken in terms of preventing the various types of causal factors that cause forced displacement, such as that the internally displaced children and youth are frequently the victims of criminal acts deliberately committed by illegal armed groups, and the direct effects of the armed conflict on the physical and psychological health of the minors (under 18 years).212 Furthermore, here the Court discussed the special risks that these children and adolescents face and which generate their internal displacement as well as the displacement of their families and communities. The risks include the individual crimes deliberately committed against their lives and personal integrity by the armed actors, and the risk of being forcibly recruited by illegal armed groups. The Court argued that forced displacement of children and adolescents took place all over the country, over the whole Colombian territory, and that forced recruitment was a direct cause of internal displacement. The Court said that forced recruitment is one of the main reasons for displacement, cutting across four distinct causal mechanisms.213 The first such mechanism was forced displacement of whole families and communities, because of the risk of having their children and adolescents being forcibly recruited, because of direct threats directed at the lives of the minors and their families, because of a general danger in a particular region, or because one or more members of the family or the community had been recruited and the displacement takes place in order to

210 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 41 211 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 41-42 212 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I. p. 31 213 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3.2.2., p. 35

Internally Displaced Persons

prevent the minors from also being recruited.214 The second such mechanism was the forced displacement of the families of the minors because relatives put pressure on and persecute these families and their minors to become recruited on behalf of the armed groups.215 The third such mechanism was the forced displacement of the families of the minors that had been recruited but who had deserted from the group, in order to protect their lives.216 The fourth such mechanism was the forced displacement of children and adolescents who were sent away from home to other places in order to get out of harm’s way by their families in order to avoid the danger of being recruited.217 This was a form of indirect forced displacement. The poverty of families increases the risk that their children and youth will be forcibly recruited, because to join an illegal armed group under these circumstances offers these children and youth an opportunity to earn money.218 This also needs to be seen in the context that a high proportion of children are being economically exploited as well for labour and to join an illegal armed group in order to work is seen as a more positive alternative from the perspective of the child. As the Court argued the child or adolescent does not see the exploitive motives of these armed groups at first, and join these groups willingly. With regards to the issue of child labour the Court made reference to a 2006 study conducted by La Defensoría del Pueblo, which stated that:219 [T]he exploitation of child labour is a constant in the lives of these boys and girls before recruitment, more than 90% have confirmed that they have engaged in some kind of productive non-domestic or domestic activity before joining an armed 214 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3.2.2. (i), p. 36 215 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3.2.2. (ii), p. 36 216 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3.2.2. (iii), p. 36 217 Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. 3.2.2. (iv), p. 37: Richard Villegas helped translate this sentence. 218 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 43 219 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 64 and footnote 65, p. 43: Richard Villegas helped translate this paragraph.

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group. Regarding the non-domestic productive activities, the most common work is the ‘agropecuarias,’ livestock and agriculture, like cultivating and harvesting the land and taking care of cattle; in the area of domestic work the predominant type of work is cleaning the house, cooking and washing clothes, activities where the biggest burden fall on the responsibilities of the girls. Close to half of the children and adolescents who work outside of their home along with the work that they are currently involved in together with the type of work they carry out at home is indicative of the vulnerability in their rights to integrity and to health, as a result from being exposed during many days from working and the development of tasks like scraping coca and to sell any type of drugs, categorized by the ILO 182 Convention as the worst forms of child labour. These risks furthermore allow for the violation of their rights to the development of their personality and to the rights to education, which can be observed from the fact that they are working in homes outside of theirs, and the development of activities which are incompatible to the different stages of child and adolescent development. In fact, 10,8% of the studied population mentioned that they had abandoned school ‘to work with tobacco’ and about 1,3% mentioned that they had to work because ‘the tobacco became a burden on their family.’

Additional risk factors for forcible recruitment include being close to the armed violence, which facilitates the recruitment of children.220 La Defensoría del Pueblo has shown that the proximity of the children and adolescents to the armed violence and to be victimized by violent acts, such as takeovers of towns, massacres and forced displacement, facilitates forced recruitment:221 The proximity of the boys, girls and adolescents to the armed conflict even before the recruitment by observing the discovery between direct acts of violence in the places where they live. Half of the boys and girls had been close to episodes of severe violence such as military takeovers (51,3 %) and massacres (46,3%) in their places of residence, about 24,8% mentioned having been victims of forced displacement (him-her and the whole family), about 37,1% suffered from having one of their members of the family being assassinated, about 21,9% mentioned that he or his family were victims of threats and 9,6% mentioned that he or some member of his family were victims of kidnapping. … In addition to these occurrences of victimization, the proximity to the armed conflict furthermore can lead to the recruitment of a family member into armed groups (60% said that they had a family member in some illegal armed group).

220 Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 44 221 Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 68, p. 44: Richard Villegas helped translate the term tomas/ takeover of town, and last sentence in paragraph.

Internally Displaced Persons

The social climate and the cultural idealization of war and the values of war are other factors that facilitate minors joining illegal armed groups, and it has been shown that the children and adolescents that voluntarily join such groups have been attracted by “the weapons, the armed conflict, the uniforms and the authority”.222 This climate of sociocultural glorification of the violence in the context of economic austerity and the lack of access to educational opportunities and to development are factors that constitute some of the most important motives for children and adolescents to voluntarily join an illegal armed group.223 A study from La Defensoría del Pueblo in 2006 showed that some of the reasons that children and adolescents voluntarily joined armed groups were that they were “liking the weapons and the uniform, the military life, the war, the search for respect and recognition”.224 In the study La Defensoría del Pueblo referred to the building of democracy and the participation of the citizenry in democracies, saying that “the liking by many boys, girls and adolescents of the war, the weapons and the uniform, equally constitutes evidence of the deficient impact of the content of the curriculums that public policies have directed towards the instrumentation of human rights, in particular, by the training of the citizens in the educational institutions where this population take courses barely making it through certain school grades before the recruitment”.225As La Defensoría del Pueblo has noted, the children who “voluntarily” join illegal armed groups “are determined by the lack of alternatives and the previous violations of their rights”.226

222 Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 44 223 Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 45 224 Defensoría del Pueblo, ‘Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in Auto 251, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 69, p. 44 225 Defensoría del Pueblo, ‘Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 69, p. 44: Richard Villegas helped translate this quote. 226 Defensoría del Pueblo, ‘Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente,

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9.7.1.1.1.1. Domestic Violence and Children Another factor contributing to the forced recruitment of children is domestic violence, and especially in relation to females, girls and female adolescents, who live in families where domestic violence is not the only risk but where also the risk of being sexually violated is very high.227 Again, in these situations to join an armed group is seen by the child or the adolescent as a way out of the situation and to be in a possibly more positive environment. To strengthen its arguments the Court made reference to a study from 2001 by La Defensoría del Pueblo which showed that the majority of the victims of domestic violence came from rural areas, and that “about 86% of the victims had been treated cruelly, inhumanely and degrading in their familiar spheres”.228 The Court furthermore referred to La Defensoría del Pueblo that in a 2006 Boletín referred to one of its earlier studies reporting that:229 of the reasons of the nature of the family …, the … observed factors such as the presence of a family in which the girls and the relationships problems in the original families, … such as the intrafamily and sexual violence, which have contributed to the factors of expulsion, in particular of the girls and the adolescents, into the illegal groups. … [A] growing group of the population are the victims of violence within their families: about a third (30,9%) of the population have said that they have been mistreated, about 66,8% of the boys, girls and the adolescents are beaten at any given opportunity during their childhood, and for a quarter of the boys and girls to be beaten is a frequent practice. … In addition to note is that 15% of the boys and 25,2% of the girls express that the violence and the lack of affection by their families are factors that influence their decision to join an armed group.

Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 70, p. 45 227 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 43 228 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 66, p. 43 229 Defensoría del Pueblo, ‘Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 66, p. 43

Internally Displaced Persons

In addition the Court made reference to a 2006 study of La Defensoría del Pueblo saying that:230 [I]t is observed that about half of the women (48%) mentioned that they had been maltreated by their fathers, mothers and adult caretakers, while about 73% of the men said that … The different types of maltreatment against the girls include different forms of physical, psychological and sexual violence. The 25% difference between the boys and the girls is indicative of the one particular condition of their vulnerability in their families, and the gender inequality which is a clear manifestation of the historic power relations between the genders, that have contributed to the discrimination of the women and girls in their homes, and that additionally constitutes a specific risk factor for them at the time of recruitment. In fact, following from the information given by the boys, girls and the adolescents, about 25,5% of the population are forced to engage in acts against their own bodies and bodies of other people contrary to their will in relations concerning sexual violence during different periods of their lives. In this group, about 10,5% of the girls and adolescents say that they have been victims of sexual assault by a family member and about 5.3% explain that the sexual assault was carried out by the step-father.

9.7.1.1.1.2 Sexual Violence The Court made reference in Auto 251 regarding sexual violence to its follow-up decision, Auto 092 of 2008, on sexual violence against women, young women and girls:231 The sexual violence against women, young women and girls that are forcibly recruited by the armed groups in the margin of the law, includes as a repeated and systematic form: (i) the violation, (ii) forced reproductive family planning – through different methods, but mainly by the placement of an intrauterine device and the use of other methods of contraceptives, against their will and without any information about the consequences of their implantation, (iii) enslavement and sexual exploitation, (iv) forced prostitution, (v) sexual abuse, (vi) sexual slavery on part of the leaders and commanders, (vii) forced pregnancy, (viii) forced abortion and (ix) the infection of sexual transmitted disease. This has been reported by numerous nation-

230 Defensoría del Pueblo, ‘Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 67, p. 43-44: Richard Villegas helped translate the last sentence of paragraph. 231 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 48

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al and international entities, in a consistent and repeated manner, that the members of the guerrillas – FARC and ELN – like the paramilitary groups – demobilized and in the process of reconfiguration – that operate all over the national territory carry out these types of acts in a systematic way in the course of their criminal activities.

In this context of Auto 251 and sexual violence against children and adolescents, the Court also made reference to a 2006 study by La Defensoría del Pueblo that explained that:232 [I]t was found that about 22,4% of the female and male adolescents interviewed confirmed that they had used one method of contraceptives against their will, of those, about 72,1% were women and 27,9% men. Also, the method most used in a forced way was with regards to the female adolescents by injections and by the boys the condom. At the same time, it was found that of all the women who confirmed to have used an anti-contraceptive method – [MAC] against their will, about 90,5% indicated that this was “by an armed group” … [A]bout 24,3% of the female and male adolescents confirmed to have been forced to carry out actions against their body or to other people against their will, actions that are related to acts against their integrity, formation and sexual dignity, like grave infractions of international humanitarian law. Although the frequency of the actions associated with international humanitarian law infractions were not disallowed, when reviewing acts associated with sexual violence, it was observed that about 25,5% of the persons that confirmed to have been forced to carry out actions against their bodies or against other people against their will, indicated to have been victims of sexual violence and that the victims were in majority girls and female adolescents. … [I]t was found that of the women that confirmed they had become pregnant many times (38), 26 indicated that they had been in armed groups “each time when in this condition”; at the same time, of the men that confirmed to have known to have made pregnant their partner (55), 30 (males) indicated to have been in an armed group at the time when they found out that their partners were pregnant.

With regards to the risk of becoming a victim of sexual violence in the context of the armed conflict where many girls and young women as well as boys are victims of sexual violence perpetrated by the different armed groups, and in situations where the sexual violence is a direct cause of internal displacement of in-

232 Defensoría del Pueblo, “Caracterizacíon de las niñas, niños y adolescentes desvinculados de los grupos armados ilegales: Inserción social y productiva desde un enfoque de derechos humano”, Noviembre de 2006 Boletín No, 9 Defensoría del Pueblo, in La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), Footnote 81, p. 48-49: Richard Villegas helped translate parts of this paragraph.

Internally Displaced Persons

dividuals, families and whole communities, the Court referred to its Auto 092 on women where the Court stipulated that:233 [T]he violence against the woman is a common, extended, systematic and invisible practice in the context of the Colombian armed conflict, as well as the exploitation and sexual abuses, committed by all the illegal armed groups …, some isolated cases, committed by individual agents from the Fuerza Pública. … [T]he number of incidences of acts of sexual violence in the context of the armed confl ict committed against girls have increased, and the number of cases of sexual crimes committed in the context of the armed conflict against minors (under the age of 18 years) that have become victims occupy a disproportionate part of the total number of known victims. In effect, according to la Mesa de Trabajo Mujer y Confl icto Armado the statistics from del Instituto Nacional de Medicina Legal shows that 42% of the victims of sexual violence are girls between 10 and 14 years of age.

In Auto 092 the Court described the different forms of sexual violence that are being committed against women, female adolescents and girls and some boys:234 (a) the acts of sexual violence that are perpetrated as an integrated part of the violent operations of major significance, such as massacres, killings, takeovers, looting and destruction of settlements, that are perpetrated against women, young women, girls and the adults in the affected localities, by armed groups in the margin of the law; (b) deliberate acts of sexual violence that are not committed in the context of the violent actions of major significance, but by individuals and foremost by members of all the armed groups that take part in the conflict, and these acts are part of (i) the military strategies focused on frightening the population, (ii) in retaliation of real or presumed help to enemy groups through the practice of violence against the women of their families and communities, (iii) in retaliation of the women who are accused of being collaborators or informants of any of the confronting armed groups, (iv) to advance the control of the territory and the resources, (v) the use of coercion (to coerce) for different purposes within the framework of the strategies advanced by the armed groups, (vi) to obtain information concerning a kidnapping by sexually subjugate the victims, (vii) simple fierceness; (c) to use sexual violence against women targeted to have a family or affective relations (real or presumed) with a member or collaborator of any of the legal or illegal armed actors, on the part of the enemy groups, as a form of retaliation and intimidation of their communities; 233 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 69 234 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 69-70: Richard Villegas helped translate vii (c) and the term armed groups outside of the law.

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(d) sexual violence against women, young women and girls that are recruited by the armed groups outside of the law, the sexual violence includes a repeated and systematic form such as: (i) the violation, (ii) forced reproductive planning, (iii) slavery and sexual exploitation, (iv) forced prostitution, (v) sexual abuse, (vi) sexual slavery by the chiefs/leaders and the commanders, (vii) forced pregnancy, (viii) forced abortion y (ix) the infection of transmitted sexual diseases; (e) the subjection of women, young women and girls to violations, abuses and sexual harassment individually or collectively by the members of the armed groups that operate in their region with the purpose of obtaining their own sexual pleasure; (f) acts of sexual violence against the civilian women that break by their private and public behavior the social codes of conduct imposed by the armed groups outside of the law in large parts of the national territory; (g) acts of sexual violence against women that are members of social, community and political organizations or that function as leaders or promoters of human rights, or against women members of their families, as a form of retaliation, repression and silencing of their activities on the part of the armed actors; (h) cases of forced prostitution and sexual slavery of the civilian women, perpetrated by members of armed groups outside of the law; and (i) threats to commit acts that have been previously committed or similar atrocities.

In Auto 051 the Court singled out three groups of activities that child soldiers carry out while with an armed group:235 (a)

(b)

(c)

War and military activities ‘strictly speaking’, such as killing other people, setting up ambushes, taking care of those killed or injured during military confrontations, taking care of hostages, participating in torture, assassinating their comrades, making and installing explosives and antipersonal mines, intimidating the civilian population, and marching during long periods of time. Providing tactical support to the combatants, such as standing guard, participating in days of military training, act as messengers, digging ditches and latrines, spying in the woods, cutting and carrying fi rewood, bury comrades, and collect and remove dead bodies. Providing support for the ‘primary needs’ of the combatants, in the context of that the children who are forcibly recruited are treated as slaves, like cook and clean for the combatants, take care of the ill, wash clothes, do agricultural work, and other activities that support the overall maintenance of the camps and the support of the combatants. Here the Court stipulated that these activities were not only in breach of the human rights of the children, but put the children at additional risk and as such also constituted a violation of their rights to their personal integrity and life.

235 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 46-48

Internally Displaced Persons

The Court had already in its Auto 171 of 2007 stipulated that the situation for the forcibly recruited internally displaced children and adolescents were crimes concerning them as human beings, sexual abuse and exploitation, and that this was a generalized phenomenon that affected this population group as a whole, that they were especially vulnerable in different places of the country, and that they did not present any claims or denounce the threats of the perpetrators out of fear and mistrust in the authorities, or because they or their families were not aware of their constitutional rights to truth, justice and reparation and that they had a right to receive special protection from the state.236 In Auto 251, the Court consistently uses the term “forced recruitment” for all situations where the child or adolescent has joined an illegal armed group, and the Court explains in detail how it views the term “voluntarily” recruitment. The adolescents are very exposed to the different armed groups; both the guerrillas but mainly the paramilitaries have imposed strict social control over the population in the territories they control, and this effects especially the adolescents.237 For instance the paramilitaries can forbid young girls to wear clothes with low neckline or short blouses, or not let the adolescents wear long hair or earrings. These groups can impose curfews and if the adolescents do not follow these rules they can be subjected to great risks as they can be subjected to detentions, forced labour, torture and other cruel, inhumane and degrading treatment and even extrajudicial executions.238 9.7.1.1.1.3. Measures to Be Adopted The Court in its decision stipulated that the internally displaced children and adolescents in Colombia were not treated in accordance with their constitutional status as subjects entitled to special, prioritized and differentiated protection.239 Here the Court declared that their fundamental rights according to the Constitution were massively and continuously ignored. The Court furthermore stipulated that the official response by the government lacked an integrated differential response to the situation of the internally displaced children and adolescents that took into account the special risks that 236 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 51 237 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 74 238 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 74 239 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 285

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the armed conflict generated which had a disproportionate impact on them in terms of forced displacement. The Court declared that the Colombian authorities had constitutional and international obligations to incorporate an integrated and differentiated response of prevention and protection that would respond to the reality of the displaced children and adolescents.240 The Court ordered the director of Acción Social, the Interior and Justice Ministers, the director of ICBF, the Education Minister, the Social Protection Minister, the Defence Minister and the director for the Programa de Acción Social contra las Minas Antipersonal to together and under the coordination of the director for Acción Social create and implement the “Programa para la Protección Diferencial de los Niños, Niñas y Adolescentes Frente al Desplazamiento Forzado” (a programme for the differential protection of the boys, girls and adolescents who have become forcibly displaced).241 The programme needed to address the particular risks that disproportionally affected these children and adolescents, and it needed to adopt a differentiated approach that integrated the specific crosscutting problems that affected these children and adolescents and that required attention. The Court ordered these governmental entities to carry out the minimum requirements specified by the Court and to present to the Court at the time they would begin to implement their ordered response information on their activities, no later than six months from the date of the issuance of Auto 251.242 The Court furthermore ordered that the director of Acción Social, the Interior and Justice Ministers, the director of ICBF, the Social Protection Minister, the Defence Minister and the director for the Programa de Acción Social contra las Minas Antipersonal together and under the coordination of the director of Acción Social create three pilot projects aimed at preventing three special risks that caused the forced displacement of children under the age of 18 years.243 These pilot projects were to be initiated no later than two months after the issuance of Auto 251, and they consisted of:244 240 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 285 241 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 285 242 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 285 243 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 286 244 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 286

Internally Displaced Persons

1. 2.

3.

One pilot project regarding the prevention of forced recruitment by boys, girls and adolescents in the Putumayo department; One pilot project regarding the prevention of the impact of antipersonal mines and unexploded ammunition on children and adolescents in the municipality of Samaniego in Nariño department; One pilot project regarding the prevention of the victimization of the children and adolescents from the strategies of social control as conducted by the armed groups in the margin of the law in Medellín city.

The Court also ordered that the director of Acción Social, the Interior and Justice Ministers, the director of ICBF, the Education Minister, the Social Protection Minister, the Defence Minister together and under the coordination of the director for Acción Social create and implement 12 pilot projects concerning forcibly displaced children and adolescents. These 12 pilot projects were to be implemented in Cartagena, Arauca, Sincelejo, Quibdó, Tumaco, Buenaventura, Bucaramanga, Bogotá, Medellín, Policarpa (Nariño), Florencia and San José del Guaviare.245 Again the Court set a two month limit after the issuance of Auto 251 for these governmental entities to have started to implement these pilot projects. Finally, in relation to each of the 18,000 displaced children identified in Annex 1, the Court ordered that the director of Acción Social, the director of ICBF, the Education Minister and the Social Protection Minister together and under the coordination of the director for Acción Social implement some specific actions, and they were:246 (a)

(b)

(c)

to their respective parents or caretakers send a full delivery of emergency humanitarian assistance after at the latest fi fteen days after the issuance of Auto 251, irrespective of any other emergency humanitarian assistance that has been delivered in the past; to have individual expert evaluations under the coordination with the director of Acción Social at the latest after three months of the issuance of Auto 251, in the areas of nutrition, health, education and psychosocial health, and to adopt corresponding measures in every individual situation meant to provide nutritional support, guarantee the access to health services, guaranteeing access to education and to secure access to psychosocial support; to register them as individual beneficiaries of these pilot projects to be implemented in their respective zones of settlement;

245 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 287 246 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 288

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(d)

to register them as individual beneficiaries of the Componentes y Elementos Constitutivos that are relevant for the Programa para la Protección Diferencial de los Niños, Niños y Adolescentes frente al Desplazamiento Forzado to be established according to Auto 251.

The Court ordered that the director for Acción Social would inform the Court about the details of the implementation of its protection orders regarding each of the 18,000 babies, boys, girls and adolescents as identified in Annex I to Auto 251, no later than three months after the issuance of Auto 251.247 The Court gave to the director of Acción Social the necessary individual data (address and phone number) for each of the 18,000 children in a separate document in order to secure their privacy and security, and in Annex I the Court gave their names, the names of their caretakers, their place of residence and the concrete orders for protection of each of the beneficiaries.248 The Court ordered that the SNAIPD under the coordination of the director of Acción Social create the new “Programa para la Protección Diferencial de los Niños, Niñas y Adolescentes Frente al Desplazamiento Forzado” that would have two central components addressing the specific risks, problems and critical areas that the children and adolescents encounter, one to prevent the disproportionate impact of the forced displacement of the children under 18 years of age, and one which would focus on the internally displaced children and adolescents.249 This programme would be carried out through the creation of 15 pilot projects and as a concrete response to 18,000 children and adolescents that had been identified by the Court. The Court ordered that this programme should be specific and differentiated and that it would formally incorporate the official policy regarding the internally displaced, and that the programme would include one component concerning the area of prevention that would correspond to the specific risks that caused the disproportionate impact of the displacement on children, and another component that would address the specific problems that the displaced children and adolescents encountered across several critical areas and that required attention.250 247 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 288 248 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 289 249 La Sala Segunda de Revisión de la Corte Constitucional, Magisrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 272 250 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 273

Internally Displaced Persons

The programme was to include regarding the first component of prevention six specific minimum elements that would correspond to the six risks that the Court had identified and that made the displaced children and adolescents especially vulnerable to forced displacement. These elements were “(i) that the children and adolescents were victims of individual crimes that were deliberately committed against their life and personal integrity by the armed actors; (ii) the forced recruitment by the illegal armed groups; (iii) that the children and adolescents were disproportionally the victims of antipersonal land mines and unexploded ordnance; (iv) to incorporate the illegal trade that support the illegal armed groups; (v) that the children and adolescents are the victims of sexual violence; and (vi) the criminal activities of social control as imposed by the illegal armed groups”.251 The programme needed to work together with the “Programa de Prevención de los Riesgos Extraordinarios de Género en el Marco del Conflicto Armado”, the programme on extraordinary risks concerning gender that the Court ordered established through its Auto 092, with regards to the special risks (paragraph v) and concerning sexual violence and social control (paragraph vi).252 Regarding the second component of the programme, the Court ordered that nine different minimum elements would be included and addressed: (a) the problems concerning the invisibility of the displaced children and adolescents; (b) the problems that affected the families and the caretakers of the displaced children with regards to the scattering and disintegration of the families, which were detrimental to the family bonds and to the ability of the parents and caretakers to take care of, protect and support their children and adolescents; (c) the problems of lack of physical protection regarding the dangers concerning illtreatment, violence, exploitation, trafficking, begging and streetlife, the use of illicit drugs, the social control by the illegal armed actors and the presence of gangs and criminal groups in the areas of where they lived; (d) the problems of hunger and malnutrition; (e) the problems of education; (f) the psychosocial problems; (g) the problems of recreation; (h) the problems of participation and organization.253 These nine components needed to be able to rely on concrete mechanisms that would strengthen and fortify their application in six critical areas, during the period of emergency, during infancy, during adolescence, in the area of gender, in the

251

La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 273 252 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 274 253 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 1.2., p. 274

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belonging to a specific ethnic group and for the disabled population.254 These two components were to be seen as minimum requirements and to be compulsory components of the Programa de Protección Diferencial de los Niños, Niñas y Adolescentes Frente al Desplazamiento Forzado. The Court also ordered that SNAIPD and the director of Acción Social adopt and implement specific indicators of results that would be based on the actual enjoyment of the human rights of the forcibly displaced children and adolescents.255 These indicators would have to be part of the programme and its components and elements were to be incorporated. The director of Acción Social needed to guarantee that the different NGOs and organizations, such as Plan International, Save the Children and Pastoral Social of the Catholic Church, that worked with the internally displaced became actively involved in the creation and implementation of the programme.256 The Court set a time limit of six months for the different governmental entities to design and prepare for the programme, and to begin to initiate the programme. With regards to the three pilot projects concerning prevention and the 12 pilot projects concerning special attention in different cities and populations of the country, the Court stated that it was necessary for the state to provide an immediate response to the situation for the forcibly displaced children and adolescents.257 These different pilot projects were to be implemented in those areas which were characterized by a high number of forcibly displaced children and adolescents. Each project was to address the special risks of the armed conflict concerning the most pressing issues in the respective zones of implementation, and the design and the implementation of these pilot projects were an important part of the programme. The Court decided to set a time limit of two months for the government to design these pilot projects and then another two months to begin to implement them, and by doing so the experiences of these projects would be part of the “formulation and construction” of the components and elements of the programme.258 254 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 1.2., p. 274 255 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 1.1.7., p. 276 256 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 1.1.17., p. 278 257 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 1.1.18., p. 278 258 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 279

Internally Displaced Persons

(The government was ordered by the Court to establish a programme, which would include certain components and elements that would address the specific risks the children encountered and their specific needs as it should reflect the reality on the ground for these children and adolescents. In order to be able to better get a sense of how this programme could be most effectively designed and established, the Court ordered the government to design and implement 15 pilot projects that would guide the government in its design and creation of the programme, including how to properly address and incorporate the required components and elements.) The reason as to why the Court chose the locations of the three pilot projects was because of the gravity of the problems (forced recruitment, antipersonal land mines and unexploded devices and strategies of social control by the different illegal armed groups in Putumayo, Samaniego, Medellín) in these particular areas.259The Court stated that depending on how successful these projects had been, they could very well be replicated in other places in the country, as identified by the director of Acción Social, that experienced the same degree of gravity of these problems. The 12 pilot projects that were to be implemented were required to include three minimum requirements that would address education, hunger, health and the lack of protection, and must include specific components that would especially address the special severity that the displaced children and adolescents live under in the zones of the project’s implementation.260 This meant that not all of these 12 pilot projects needed to include components that would address all the different problems that internally displaced children and adolescents may encounter if not all of these problems existed in the respective zones. The 12 projects included some minimum common components regarding the situation for internally displaced such as nutrition, health and protection, and depending on the respective zone the government should complement with other issues if those existed in that particular zone.261 The Court had chosen these locations for these 12 projects based on the high proportion of internally displaced in the respective municipalities and districts, the gravity of the problems and the possibility of the problems critically intensifying among the displaced population located in these jurisdictions, and the presence in the majority of these locations of children under the age of 18 years

259 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 280 260 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 2.2., p. 281 261 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 281

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that were the beneficiaries of the specific protection orders in the Auto 251.262 Again, the director of Acción Social could in addition identify other locations which had the same factors and were in need of such projects. The Court stated that it was not necessary for the government to include all the displaced children and adolescents living in the zones where the 12 pilot projects were to be implemented, however as a minimum the 18,000 children and adolescents that had been identified by the Court and found in Annex I to Auto 251 should be included in these 12 pilot projects.263 Again, depending on the experiences with the implementation of these 12 pilot projects, they could be replicated by the government in other parts of the country with similar needs. Regarding the concrete protection of the children and adolescents the Court had identified specifically, individually and concretely 18,000 babies, children and adolescents who had been forcibly displaced in different parts of the country, and whose fundamental rights had been violated and that required an immediate state response as according to the Colombian Constitution and in the context of the following-up on the decision T-025 of 2004 and on overcoming the unconstitutional state of affairs that the Court had declared in decision T-025, which had manifested tangibly, concretely and urgently in these 18.000 cases of children under 18 years of age.264As the highest constitutional instance, the Court stated that it had the right to respond in such a resolute manner in these kinds of situations where human rights violations like these had taken place in the lives of 18,000 babies, children and adolescents. Again the Court made clear that there was nothing that hindered the government from providing protection to all children under the age of 18 years, as the Court had in Sentence T-025 and the Auto 092 of 2008 given general orders that would guarantee the human rights of all displaced children and adolescents in the country, and only given specific orders regarding the children who had been identified by name.265

262 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 281-282: Richard Villegas helped translate this sentence. 263 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), p. 282 264 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 3., p. 283 265 La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), V. para. 3., p. 283

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9.7.2.

Differential Treatment of Individuals Who Have Special Constitutional Protection in Colombia

The Constitutional Court of Colombia has underlined that as internally displaced individuals and groups are in need of special protection, as their needs and rights are not met or protected due to their displacement, a higher degree of protection is required as internal displacement leaves them in a more vulnerable position than the general population that has not become displaced.266 Furthermore as these individuals and groups with special needs do not always have the same needs and their individual situations differ because of, for instance, age or gender, differential treatment of these individuals and groups is required. The fourth Guiding Principle ensures this situation. As part of the follow-up process to the Decision T-025, the Colombian Ombudsman Office issued an Evaluation Report in October 2006 in which the Office noted in relation to differential treatment that the Colombian authorities “do not take into account the essential differences within the displaced population, which causes difficulties at the moment of realizing the protection of specific rights like the rights to truth, to justice, to reparation, and to non-repetition, rights which the displaced persons are entitled to”.267 The Office meant that the Guiding Principles had been violated (the principles regarding governmental duties of special protection and the government’s duty to “adopt affirmative measures in favor of IDPs”) as the governmental authorities had not shown any differentiation in treatment but instead only presented plans and projects for activities in the future, which had also violated “the principle of progressivity in the protection of ESCR”.268 While the Ombudsman’s Office found the creation of various plans and directives by the different governmental entities concerning the indigenous and Afro-Colombian populations a positive development in terms of public policy (the creation of a long-term Plan for Afro-Colombian Communities, Plan a Largo Plazo para Comunidades Afrocolombianas, which was part of the 2006– 266 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 135 267 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 135 268 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 135: ESCR stands for economic, social and cultural rights.

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2010 National Development Plan (Plan Nacional de Desarrollo 2006–2010), the Plan for Comprehensive Assistance to Vulnerable Populations and Populations at Risk of Forced Disappearance (Plan de Atención Integral a Población Vulnerable y en Riesgo de Desaparición),269 and the Directive of Comprehensive Assistance to Indigenous Communities Displaced or at Risk of Forced Disappearance (Directriz de Atención Integral a Comunidades Indígenas Desplazadas o en Riesgo de Desplazamiento)), the Office of the Ombudsman meant that these plans and directives did “not contain precise information about how they will be implemented and evaluated”.270 This remark that the plans and directives did not provide precise information about how to go about to prevent, assist in and protect people from forced displacement was one of the most important comments, since the Constitutional Court has underlined that the government must, is obliged to, implement precise and concrete plans that will assist the IDP population once displaced to the point that their needs are met and fundamental human rights restored, and/or that will prevent forced displacement to take place in the first place. The Controller’s Office stipulated that while strategies regarding the indigenous population had been established by the government as a response to Decision T-025, at the same time these measures had “only been designed on paper, but not yet put into practice”.271 As Arango argues, the government’s adopted measures were still “merely plans and future projects” and not results.272 The Colombian government has established the Early Warning System (SAT) and the Inter-Institutional Early Warning Committee (CIAT), and the SAT is part of the Ombudsman’s Office and “is the instrument with which the 269 This governmental program “establishes the programming, financial, and work objectives of those institutions that make up SNAIPD, so that they may aim, with opportunity and efficiency, towards meeting the commitments that the Colombian State has with its fellow citizens who suffer from vulnerability due to the internal violence and forced displacement,” in Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 136 270 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 136-137 271 Controller’s Office, Sixth Surveillance Report, October 2006, in Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 138 272 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 138

Internally Displaced Persons

Ombudsman gathers, verifies, and analyzes the information related to the civil population’s states of vulnerability and risk as a consequence of the armed conflict. It also advises the relevant authorities of their duties of protection, so that they may coordinate and offer timely and integrated assistance to affected communities.”273 Furthermore, the SAT is mandated to “warn about situations of risk and promote the integrated humanitarian prevention of the State before the effects of the armed conflict, with the goal of protecting and guaranteeing the civil population’s fundamental rights in a timely manner”.274 Furthermore, the SAT should “promote policies and prevention strategies for massive human rights violations … and to promote the humanitarian intervention of the State, social solidarity, and the generation of spaces and attitudes that favor a political solution to the internal armed conflict”.275 There are three working groups within SAT: “[First] the Structural Analysis and Early Action Group analyses the conflict, and identifies and evaluates threats and vulnerabilities; … receives, analyzes, interprets, and systematizes the information relevant to the risk of massive human rights violations; [secondly] [t]he Social and Inter-Institutional Projection Group promotes policies and public efforts, social processes, solidarities, and alternative mechanisms of conflict resolution and communication processes in order to create interinstitutional and community synergies, which affect the structural causes of the conflict.”276 Thirdly, there is the Regional Analysts Group that together with regional and sectional ombudspersons are engaged in activities of the SAT in specific jurisdictions, such as to monitor how many IDPs there are, write risk reports and track situations that have already been reported on.277 However SAT and the CIAT have not 273 In Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 140-141 274 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 141 275 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 141 276 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 141 277 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 141

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functioned effectively and the UNHCR has pointed out that the SAT’s recommendations to CIAT have been of a military character, and the measures of the civil authorities have been established “without having designed effective control mechanisms which secure their implementation”.278 Arango has argued that “a policy of displacement prevention that is based on the incorporation of the civil population in the conflict (peasant soldiers, informants, and rewards) and on a military approach (massive detentions, war zones, and population control) fails to recognize the principles of international humanitarian law. Such a policy not only violates the principle of distinction between combatants and non-combatants, but also places the civil population in a situation of grave risk. On this point, the Government not only fails to fulfi ll its international obligations, but also does so in a massive and conscious manner, thereby violating the rights of displaced persons.”279 The Constitutional Court issued Auto 109 on 4 May 2007 in which the Court adopted a set of indicators that were to measure the actual enjoyment of the rights of the displaced, which included for housing, health, education, food, generation of income, identity and economic stabilization.280 Here the focus is on children and the indicators established by the Court specifically as they pertain to children include: 281 –

–

The indicator for health: Indicator of effective enjoyment: Access to general social security system in health (SGSSS) – All individuals should be affi liated with SGSSS; Access to psychosocial care – All individuals who seek psychosocial care should receive it; and Access to vaccination schedule – All children in the home should have the complete vaccination schedule; The indicator for education: Indicator of effective enjoyment: Regular attendance in formal education – All children and youth in the home regularly attend a level of formal education (5–17 years);

278 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 141-142 279 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 142 280 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 143-144 281 From table in Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 144

Internally Displaced Persons

–

–

The indicator for food: Indicator of effective enjoyment: Availability of food in sufficient quantity – The home has adequate food for consumption and has access to a sufficient quantity of the same; Childcare – All children in the home who are not under the care of an adult attend childcare programs; The indicator for identity: Indicator of effective enjoyment: Possession of identity documents – All members of the home have their complete identification documents.

In Auto 109 of May 2007, the Court gave orders to the relevant governmental entities that they by 22 June 2007 present “indicators that show results that would allow the real and measurable enjoyment of rights by the displaced population in the stages of prevention of displacement, immediate assistance, return migration, and emergency humanitarian aid”, and that the authorities should apply a differential approach as the IDP population was diverse and had different needs.282 While the government has made efforts to present indicators and adopt measures, there continues to exist a wide gap between law and policies and reality on the ground. This situation was reflected already by the 2006 report by the Office of Ombudsman, which stated: “It is worrisome that thirty-two months after an unconstitutional state of affairs being declared, and after more than ten years of these number of problems’ existence, the responsible entities of SNAIPD still find themselves in a phase of design and planning, perpetuating the situation and ignoring the rights of the victims of forced displacement, faced with the absence of effective answers.”283 Another persisting problem has been that the different governmental entities responsible for the internally displaced population have not been able to sufficiently coordinate their activities among themselves so that an effective coordinated response can be delivered, and therefore the actual protection of and enjoyment of the social, economic and cultural rights (the basic services of health, education, housing, clothing, work and social security) of the IPDs has not been guaranteed.284

282 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 145 283 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 145: SNAIPD stands for Sistema Nacional de Atención Integral a la Población Desplazada. 284 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 146-147

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The main problems with the Colombian governmental authorities’ approach to the assistance to and protection of the IDPs and the prevention of forced displacement have involved: 285 (1) (2)

(3) (4) (5) (6)

(7) (8)

the lack of clarity in the allocation of obligations …; the lack of clarity in the budgetary responsibilities between the central Government and territorial entities (department and municipalities that receive the displaced population); the under-registration of people affected by displacement …; the standstill of State actions in planning, so that precise dates for achieving results in the prevention and assistance of displacement are not established; the absence of differential treatment in the implementation of policies according to characteristics of age, gender, and cultural and ethnic origin; the inconsistency between the policy of democratic security that involves civilians in the armed confl ict (e.g. informants) and the prevention of displacement; the deficiencies when estimating the risk involved during the return of the displaced population to its place of origin; the contradictory results of a displacement prevention strategy that has a military approach.

It still remains to be seen how the governmental authorities are to respond to the government’s responsibility and obligation to protect the rights of the IDP population including the rights of children and adolescents. 9.7.3.

The Guiding Principles on Internal Displacement and Colombia The Guiding Principles are largely a compilation of legal provisions pertaining to IDPs’ basic rights, which are found in various international treaties and other legal instruments in the fields of human rights, international humanitarian law and, by analogy, refugee law. Many of these legal provisions have also attained the status of customary rules of international law, as proven by the recent study by the International Committee of the Red Cross on customary international law. These legal provisions have binding force within the Colombian legal system because of their nature as conventional and customary rules of international law. Therefore, the Guiding Principles are, for

285 Arango, R., The Human Rights of the Victims of Forced Internal Displacement in Light of the Progressivity of Economic, Social and Cultural Rights, Chapter 4, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 147

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the most part, a statement of pre-existing international obligations of the Colombian State.286

Colombia is a country that has adopted and used the Guiding Principles on Internal Displacement extensively and therefore the experiences of Colombia in this context are examined here. The Colombian Constitutional Court incorporated the Guiding Principles into its many decisions regarding the rights of the IDP population already before Decision T-025 and the subsequent follow-up Autos. For instance notably in 2001 the government had refused to register a man and his family into its IDP database who had become displaced because they could not produce identification documents that proved their identity and their claims of being internally displaced.287 This case ended up before the Constitutional Court, and the Court in its Decision T-327 of 2001, referring to the Guiding Principles’ definition of internal displacement, stated that “nowhere is it mentioned, within the content of the [Guiding Principles], that the configuration of a situation of internal displacement requires a declaration by a public or private officer”, and the Court continued that “according to the notions of forced displacement established in the Guiding Principles on Internal Displacement, Law 387 of 1997, this Court’s case law and the concepts submitted by CODHES and the Colombian Commission of Jurists, it is clear that forced displacement being a factual situation, does not require for its configuration, nor as an indispensable condition to acquire the status of IDP, a formal declaration by any public or private entity”.288 This meant that the registration system established by a government to register IDPs was only “a mechanism to recognizing a de facto situation”.289 The Court also stated in its Decision T-327 of 2001 that the Guiding Principles were to function as binding international guidelines in the domestic process of interpreting the domestic legal provisions with regards to the registration of the IDPs, and referring to the principle of the most favourable interpretation of hu286 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 176: footnote omitted. 287 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 178-179 288 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 179-180 289 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 180

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man rights for the protection of the rights of a victim stated that the Guiding Principles were to be applied:290 In order to carry out a reasonable interpretation of the [applicable legal provision], recourse must be made to the systematic and finalistic … to those who are more favorable to protecting peoples’ human rights. Th is being so, in applying a systematic interpretation, it must be very clear that the decree in which the article at hand is contained is the legal development of a Law that recognizes forced displacement as a factual situation; In turn, this Law is the development of a constitutional system to which international provisions have been incorporated, such as the Guiding Principles on Internal Displacements, issued by the UN, and article 17 of the Additional Protocol to the Geneva Conventions of August 12, 1949, which purport to protect IDPs and do not require a interpretative criterion of the most favorable interpretation of the protection of human rights … [T]he provision at hand must be taken to be a series of guidelines to facilitate an organized protection of IDPs fundamental rights. The most favorable interpretation for the protection of IDPs’ human rights makes it necessary to apply the Guiding Principles on Internal Displacement contained in the Report of the Special Representative of the UN Secretary-General for the issue of Internal Displacements of Persons. This forms part of the international legal provisions that compose the constitutionality block relevant for this case. Consequently, all of the public officials involved in assisting IDPs … should act in accordance with the provisions, not only of the Constitution, but also of such Principles.

The Guiding Principles have been widely recognized in Colombia by the governmental authorities, the Constitutional Court and the national and international organizations and NGOs, and the process in which the Colombian Constitutional Court has judicially incorporated the Guiding Principles into its decisions has basically relied on three factors: “(i) by mandate of Article 241 of the Constitution, the Constitutional Court is the authorized interpreter of the text of the Constitution, including the human rights provisions therein, which means that, when incorporating the Guiding Principles as necessary references for the interpretation of IDPs fundamental rights, the Court binds all lower authorities to such an understanding of these rights’ scope and content – while deciding on specific cases and providing assistance for their needs; (ii) as the highest tutela judge in the country, the Court is in charge of establishing the constitutional doctrine to be followed by each individual judge in the country when settling human rights cases through this procedural channel; and (iii) the Court is the authority that defines the elements that compose the ‘constitutionality block’, and there290 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 180

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fore the inclusion of the Guiding Principles within the scope of this legal device formally confirms their high rank within our legal system”.291 Furthermore, the Court has used the Guiding Principles as “the key interpretative criteria” for delimiting the scope of the rights of the IDPs as well as the duties and obligations of the governmental authorities in relation to the IDPs.292 Finally the governmental authorities involved in providing assistance to the IDPs as part of the follow-up process of Decision T-025 refer many times to the Guiding Principles, and the many different national and international organizations and NGOs, including UNHCR, working with and for the internally displaced in Colombia have referred to the Guiding Principles both as a legal basis for their work, pointing out problems with the governmental actions regarding IDPs, but also in reports to the Constitutional Court which the Court in turn has referred to and used as a source for its decisions on IDPs.293 Thus the Guiding Principles have significantly impacted the situation for IDPs in Colombia, involving the government, the Constitutional Court and the many international and domestic organizations working on internal displacement.294 On 10 June 2011 the Colombian President Juan Manuel Santos signed into law the new legislation “the Victims and Land Restitution Law”, which is to give back land to internally displaced persons and offer reparations such as financial compensation to persons who are victims of violations of human rights and international humanitarian law.295 There are three million victims that have been officially recognized, and the bill puts forward a reparation period of ten years, which is expected to cost about USD 25 billion, and the basis for the bill is that it is the Colombian state’s responsibility to provide the funds.296 The reparation pro291 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 178 292 See Constitutional Court Decision T-268 of 2003, Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 186-187 293 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 191-201 294 Guzmán Duque, F., Guiding Principles on Internal Displacement: Judicial Incorporation and Subsequent Application in Colombia, Chapter 6, in Arango Rivadeneira, R., Ed., Judicial Protection of Internally Displaced Persons: The Colombian Experience, November 2009, p. 201 295 Human Rights Watch, Colombia: Victims Law a Historic Opportunity, Bold Measures Needed to Protect Beneficiaries, June 10, 2011, www.hrw.org 296 Vice-President of Colombia, His Excellency Angelino Garzón, Woodrow Wilson International Center for Scholars, Washington D.C., January 26, 2011

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gramme to be put in place concerns three million victims, that is about 360,000 victims/year, 1,000 victims/day, 100 people/hour that will receive reparation. The Vice President of Colombia Angelino Garzón has said that Chile is one model for reparation as Chile has had a process of reparation going on for 20 years (but which has not been completed after 20 years).297 He also remarked that Colombia must be more sensitive to victims, and that for many years “we were more complacent with the victimizers than with the victims and gave less support to the victims”, which needs to stop.298 Some of the most persistent challenges to this Law is the continuous danger to victims and witnesses, and in 2010 there was a 34 per cent increase of massacres by the new groups that developed from the demobilized paramilitary groups, the so-called “emerging criminal gangs”.299 New displacements continue to occur, and one issue with the new Law is whether it will be possible for persons displaced by these new groups to seek restitution under the Law.300 9.7.4.

The Rights of Children and Youth in the Colombian Context

9.7.4.1.

The United Nations Human Rights Committee and Its Concluding Observations on Colombia as Pertaining to Children and Youth

The United Nations Human Rights Committee considered the report by the Colombian government in July 2010, and subsequently issued the following Concluding Observations pertaining to specifically children and youth.301 The United Nations Human Rights Committee welcomed that the Colombian government had adopted Act No. 157 of 2008 which concerned the awareness-raising, prevention and punishment in respect of acts of violence and discrimination against women. Furthermore, the Committee welcomed that the Colombian government had adopted Act. No. 1098 of 2006 regarding the Code for Children and Adolescents. However, the Committee found that many human rights violations continued to be carried out and that the rights of many groups including children, youth, women and the Afro-Colombians were not protected. The 297 Vice-President of Colombia, His Excellency Angelino Garzón, Woodrow Wilson International Center for Scholars, Washington D.C., January 26, 2011 298 Vice-President of Colombia, His Excellency Angelino Garzón, Woodrow Wilson International Center for Scholars, Washington D.C., January 26, 2011 299 Human Rights Watch, Colombia: Victims Law a Historic Opportunity, Bold Measures Needed to Protect Beneficiaries, June 10, 2011, www.hrw.org 300 Human Rights Watch, Colombia: Victims Law a Historic Opportunity, Bold Measures Needed to Protect Beneficiaries, June 10, 2011, www.hrw.org 301 United Nations,The International Covenant on Civil and Political Rights, Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, Concluding observations of the Human Rights Committee, Colombia, CCPR/C/COL/Co/6, 4 August 2010

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Committee brought up several issues, and in this section the focus will be on the situation of children, youth and women, and on the Act No. 975 from 2005, serious human rights violations, sexual violence, preventive detention and mass arrest, forced displacement and the recruitment of children. 9.7.4.1.1.

Act No. 975 of 2005 and Reparation and Impunity

The Committee took note that 280,420 victims had been registered according to the Act No. 975, and that by August 2010 only in one case had the state awarded judicial reparation (para. 10). The Committee also noted that the government’s programme on individual reparations through administrative channels, that is Decree No. 1290 of 008, did not “explicitly recognize the State’s duty to guarantee rights” (para. 10), and that victims of acts committed by state agents are not covered by Decree 1290. Furthermore, the Committee expressed concerned about the gap between normative provisions and the actual enforcement of these provisions and that reparations are awarded as a “form of humanitarian assistance” and as such do not constitute full reparation (para. 10). The Committee stated to the Colombian government that Decree No. 1290 “must be pursued taking into account the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law (A/RES/60/147, 2006)” and that the government then should take into account the five elements of the right to a remedy and reparation which are restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (para. 10). The Committee stipulated that in this context “particular attention should be paid to gender issues and to victims who are children, Afro-Colombians or indigenous people”, and that resources for the provision of psychological and social care and rehabilitation be allocated. The Committee expressed “serious concern“ about Act No. 975 of 2005, the Justice and Peace Law, stating that for several serious human rights violations there was de facto impunity, even as the government had stated that amnesties for serious human rights violations were not allowed according to the law (para. 9). The Committee meant that Act No. 975 had not been adhered to by most of the 30,000 demobilized paramilitaries, and that their legal situation remained unclear (para. 9). Furthermore, the Committee argued “with serious concern that only two persons have been convicted and that few investigations have been initiated despite the systematic violence highlighted in versión libre accounts of the paramilitaries charged” (para. 9). In addition the Committee remarked that activities by the new groups that have emerged after the demobilization “are consistent with the modus operandi” of the former paramilitary groups (para. 9). Here the Committee referred to the Colombian law Act No. 1312 of July 2009 regarding “the application of the principle of discretion to prosecute leads to impunity if the waiver of prosecution is applied without regard to human rights standards and represents a violation of the victim’s rights to full redress” (para. 9). The Committee also referred to its General Comment No. 31 (CCPR/C/21/

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Rev.1/Add.13, 2004) in which it stated that “the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies … (and that) the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations” (para. 9). In this regard the Committee stated (para. 9): The State party must comply with its obligations under the Covenant and other international instruments, including the Rome Statute of the International Criminal Court, and investigate and punish serious violations of human rights and international humanitarian law with appropriate penalties which take into account their grave nature.

9.7.4.1.2. Serious Human Rights Violations The Committee expressed its grave concern regarding the “the persistence of serious violations of human rights, including extrajudicial executions, forced disappearances, torture, rape and recruitment of children for use in the armed conflict” (para. 12). Here the Committee underscored “the serious lack of statistics and concise information on the number of cases of torture and related investigations”, and took note of the “particular vulnerability of certain groups” including women, children, ethnic minorities and displaced persons (para. 12). In this respect the Committee suggested that a centralized system be established by the government that would enable the identification of all serious human rights violations and the monitoring of investigations of these violations (para. 12). 9.7.4.1.3. Sexual Violence The Committee expressed its “deep concern about reports of the alarming incidence of sexual violence against women and girls” (para. 18), and that so many of the perpetrators are coming from the FARC-EP and the illegal armed groups that have come from the demobilized paramilitary groups. In addition the Committee expressed its grave concern regarding the fact that the members of the government’s security forces are alleged perpetrators of sexual violence against mainly young girls (para. 18). The Committee referred to Colombia’s Constitutional Court’s Auto 092 on women in which the Court had identified 183 cases of sexual violence that the Attorney General’s Office was ordered to investigate, and that the Attorney General’s Office had not taken all the necessary measures needed to make progress into these 183 cases (para. 18). In this regard the Committee also expressed its concern “about the failure of the mechanisms established by Act. No. 975 of 2005 to reflect the crimes involving sexual violence (arts. 3, 7, 24 and 26)” (para. 18). The Committee recommended in this regard that (para. 18):

Internally Displaced Persons

The State Party should adopt effective measures to investigate all cases of sexual violence referred to the Attorney General’s Office by the Constitutional Court and should establish a reliable system for documenting incidents of any type of sexual or gender violence. Acts of sexual violence reportedly committed by the security forces should be investigated, tried and firmly punished, and the Ministry of Defense should enforce a policy of zero tolerance of such violations which provides for the dismissal of the perpetrators. The State party should increase the resources allocated to the physical and psychological recovery of women and girls who are victims of sexual violence and ensure that they do not suffer secondary victimization in gaining access to justice.

9.7.4.1.4. Preventive Detention and Mass Arrest The Committee expressed its concern about arbitrary arrests and preventive administrative detention by the police and mass arrests by the police and the army, and that arrest warrants were seldom supported by evidence and that certain groups like youth, indigenous people and Afro-Colombians were specifically stigmatized by such arrests (para. 6). In this regard, the Committee in its recommendations to the government to take measures to end the practice of preventive administrative detention and mass arrest referred to the mission of the Working Group on Arbitrary Detention to Colombia in 2008 and its subsequent recommendations (A/HRC/10/21/Add.3) (para. 20). 9.7.4.1.5. Forced Displacement The Committee expressed concern about the high number of people who are forcibly displaced, and remarked that the response by the government to their needs remained inadequate, and that the response was “marked by an insufficient allocation of resources and the lack of comprehensive measures for providing differentiated care for women, children, Afro-Colombians and indigenous people” (para. 23). The Committee recommended that (para. 23): The State Party should ensure the development and implementation of a comprehensive policy for the displaced population that should provide for differentiated care, with emphasis on women, children, Afro-Colombians and indigenous people. …. The State Party must also implement the recommendations made by the Representative of the Secretary-General on the human rights of internally displaced persons following his visit to Colombia in 2006 (A/HRC/4/38/Add.3).

9.7.4.1.6. Recruitment of Children The Committee expressed concern about continued child recruitment by FARCEP and the ELN, as well as about the practice by the governmental security forces

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of using children for military civic activities, like “Soldier for a day” and the interrogation of children for intelligence purposes (para. 24). In this respect the Committee recommended that (para. 24): The State party should strengthen all possible measures to prevent the recruitment of children by illegal armed groups and should by no means involve children in intelligence activities or in military civic acts aimed at militarizing the civilian population.

The Colombian government has registered that 943,935 children between the ages of 5–14 were displaced by the armed conflict between 1995 and 2007.302 About 52.3 per cent of the displaced population in Colombia are women.303 Contributing to the vulnerability and exposure of the IDPs to recruitment and trafficking has been that the situation for the IDPs was not properly acknowledged by the Colombian government at first.

302 UN Doc A/HRC/8/10, 20 May 2008, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Right to Education in Emergency Situations, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, para. 120, p. 23 303 Comisión de Seguimiento de las Politicas Publicas Sobre el Desplazamiento Forzado, Proceso Nacional de Verificación, Decimosegundo Informe, El desplazamiento forzado el caso de las mujeres, hogares y niños, niñas y adolescentes, por Garay S., Luis Jorge, Barberri G., Fernando, Ramirez G. Clara, Misas, Juan Diego, Prada P., Gladys C., Bogotá D.C., Marzo 4 de 20009, p. 5

10

The Legal Protection of Children and Armed Conflict

10.1.

The Human Rights of Children The child should be fully prepared to live an individual life in society, and be brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.1 – The Preamble to the Convention on the Rights of the Child Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. – Article 2, the Universal Declaration of Human Rights, 10 December 1948

Massive human rights violations of children occur despite the fact that there are several human rights instruments that protect and safeguard the rights of all individuals including children within a country or territory without any distinction to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.2 This is the fundamental principle of 1

2

The Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990. See the Universal Declaration of Human Rights, Article 2, The International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, and see in the Preamble of the Convention on the Rights of the Child which states that “Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex,

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non-discrimination that the international human rights instruments are founded on. The United Nations Universal Declaration of Human Rights celebrated 60 years in 2008 and, as the United Nation’s Office of the High Commissioner for Human Rights states, is a document that embodies a real commitment to universal dignity and justice to be practically experienced by all.3 The Universal Declaration of 1948 is the most translated legal document in the world.4 It has set the standard for human rights protection all over the world and puts the individual human being at the centre for protection from specific acts by governments and state entities that have been determined to be violations of their rights. The International Bill of Rights is comprised of the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Cultural and Social Rights (ICECSR), the Optional Protocol to the International Covenant on Civil and Political Rights, and the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at abolishing the death penalty.5 The two Covenants are the most basic human rights instruments that put a direct legal obligation on governments and state entities to protect the human rights stated in them.6 While these documents also protect the rights of children both generally and more specifically in some articles, protection of the human rights of children was considered to be of such importance that it required a much more comprehensive legal framework and therefore the Convention on the Rights of the Child was developed.7

3 4 5 6

7

language, religion, political or other opinion, national or social origin, property, birth or other status”. Office of the High Commissioner for Human Rights, Universal Declaration of Human Rights, www.ohchr.org/EN/UDHR/pages/60UDHRIntroduction.aspx Office of the High Commissioner for Human Rights, Universal Declaration of Human Rights, December 10, 1948 Office of the High Commissioner for Human Rights, Fact Sheet No. 2 (Rev.1), The International Bill of Human Rights, http://www.unhcr.ch/html/menu6/2/fs2.htm The International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force March 23, 1976: the International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force January 3, 1976. See also the Optional Protocol to the International Covenant on Civil and Political Rights, and the second the Optional Protocol to the International Covenant on Civil and Political Rights, considering the abolition of the death penalty. OHCHR, Fact Sheet No. 10 (Rev.1), The Rights of the Child, p. 1

The Legal Protection of Children and Armed Conflict

10.1.1.

The United Nations Convention on the Rights of the Child

The Convention on the Rights of the Child (CRC), which was adopted by the UN General Assembly in 1989 and entered into force in 1990, is interestingly enough the human rights treaty that has the most ratifications of all treaties.8 To commemorate the 20th anniversary of the 1959 Declaration on the Rights of the Child the Polish government before the 34th session of the UN Commission on Human Rights put forward a proposal for the establishment of a convention on the rights of children for the 1979 International Year of the Child.9 It was the Polish delegate to the then UN Commission on Human Rights, Professor Adam Lopatka, who also at the time was the president of the Polish Association of Jurists, who was the main architect behind the Polish proposal and he has become known as “the father” of the CRC Convention.10 The Commission on Human Rights established a Working Group to draft the convention, a drafting process which was long and arduous and ended up taking ten years to complete.11 The US was the most active participant during the drafting process, putting forward proposals and recommendations on texts for 38 articles out of 40 on substantive rights.12 Furthermore, the US introduced proposals for seven completely new articles while five other countries, Denmark (Article 5 on parental guidance), India (Article 6 on survival and development), Argentina (Article 8 on identity), China (Article 33 on narcotics) and Norway (Article 39 on recovery and reintegration), made proposals for one new article each.13

8 9

10

11

12

13

OHCHR, Fact Sheet No. 10 (Rev.1), The Rights of the Child, p. 2 Revaz Cris. R., An Introduction to the U.N. Convention on the Rights of the Child, Chapter 2, in Todres, Jonathan, Wojcik, Mark E., Revaz, Cris R., The U.N. Convention on the Rights of the Child, An Analysis of Treaty Provisions and Implications of U.S. Ratification, Transnational Publishers, 2006, p. 13; and Cynthia Price Cohen, Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 10 Revaz Cris. R., An Introduction to the U.N. Convention on the Rights of the Child, Chapter 2, in Todres, Jonathan, Wojcik, Mark E., Revaz, Cris R., The U.N. Convention on the Rights of the Child, An Analysis of Treaty Provisions and Implications of U.S. Ratification, Transnational Publishers, 2006, p. 13 Price Cohen, C. Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 10-11 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 25-26 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 26: US proposed article 10 (family reunification), article 13 (freedom of expression), article 14 (freedom of religion), article 15 (freedom of association and assembly), ar-

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The Convention on the Rights of the Child came into force on 2 September 1990, which was the first time an international human rights convention came into force already after one year of its adoption.14 This was followed at the end of September 1990 by the UN conference World Summit for Children of Heads of State, which was also the first time that the entry into force of an international convention was followed by a conference where the implementation of the rights of that convention was the main focus.15 A Summit Declaration was adopted at the conference outlining the implementation of particular goals and targets for the following decade, and a “Plan of Action” was to support the implementation of the Convention. That a human rights convention reaches within a decade almost universal ratification is highly unusual for human rights treaties, which should be compared to CEDAW which was adopted in 1979, but which not until the World Conference of Women in 1995 received broad ratifications, and with almost universal ratification of the treaty occurring first in 2005.16 The CRC has 140 signatory states (including the US in 1995 and Somalia in 2002) and 193 state parties while the United States, Somalia and South Sudan are the only states in the world that have not ratified the Convention.17 The state parties that have ratified the CRC include those countries which have or are experiencing the longest and most brutal current conflicts such as Afghanistan (1994), the Central African Republic (1992), Colombia (1991), Côte d’Ivoire (1991), the Democratic Republic of Congo (1990), El Salvador (1990), Guatemala (1990), Haiti (1995), Iraq (1994), Israel (1991), Lebanon (1991), Liberia (1993), Myanmar (1991), Nepal (1990), Rwanda (1990) and Burundi (1990).18 In all of these countries

14

15

16

17

18

ticle 16 (right to privacy), article 19 (protection form abuse) and article 25 (periodic review of treatment). Goonesekere, S., Introduction and Overview, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems in UNICEF, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems, 2007, p. 1 Goonesekere, S., Introduction and Overview, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems in UNICEF, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems, 2007, p. 1 Goonesekere, S., Introduction and Overview, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems in UNICEF, Protecting the world’s children, Impact of the Convention on the Rights of the Child in diverse legal systems, 2007, p. 1 See List of signature and ratification, acceptance, Accession and Succession at Office of the United Nations High Commissioner for Human Rights, 11. Convention in the Rights of the Child New York, 20 November 1989, last accessed June 13, 2012: the Republic of South Sudan became an independent state on July 9, 2011 and a Member State of the United Nations by the admission of the UN General Assembly on July 14, 2011. The year noted is the year the state ratified the convention.

The Legal Protection of Children and Armed Conflict

children have been exposed to some of the worst abuses of child rights and their rights have been utterly disregarded and non-existent. With the CRC the child came to be viewed as a subject of rights instead of what had been the case an object of protection, which was a significant development and considered “a landmark in the development of international human rights law related to protection of the human rights of children”.19 The CRC is comprised of both civil and political rights as well as economic, social and cultural rights, and of significance is that the Convention is indivisible and its articles interdependent.20 The Committee on the Rights of the Child has identified four general principles that are to guide the implementation of the treaty and be applied to all other articles.21 These general principles are the principle of nondiscrimination in Article 2, which means that all children shall have the same rights, the principle that the best interests of the child is to be taken into consideration regarding all decisions concerning the child in Article 3, the principle that all children have the right to life, survival and development in Article 6, and the principle to take into consideration the views of the child in matters relating to the child in Article 12.22 Thus children should have their opinions respected. More specifically Articles 2, 3, 6 and 12 of the CRC read as follows: Non-discrimination in Article 2(1): “State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Best interests of the child in Article 3(1): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The right to life, survival and development in Article 6(1): “States Parties recognize that every child has the inherent right to life.” and (2): “State Parties shall ensure to the maximum extent possible the survival and development of the child.”

19 20 21 22

Inter-American Commission on Human Rights, The Rights of the Child on the Inter-American Human Rights System Second Edition, Introduction, para. 2 For UNICEF by Hodgkin, R, Newell, P, Implementation Handbook for the Convention on the Rights of the Child, Fully revised edition, 2004 For UNICEF by Hodgkin, R, Newell, P, Implementation Handbook for the Convention on the Rights of the Child, Fully revised edition, 2004 UNICEF, Swedish UNICEF, Barnkonventionen är grunden för UNICEFs arbete, www.unicef.se/barnkonventionen; OHCHR, Fact Sheet No. 10 (Rev.1), The Rights of the Child, p. 2; see also “For UNICEF by Hodgkin, R, Newell, P, Implementation Handbook for the Convention on the Rights of the Child”, Fully revised edition, 2004

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The views of the child in Article 12(1): “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

The CRC Committee has with regards to Article 2 stated that “[t]his non-discrimination obligation requires States actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures”.23 In order to be able to properly identify those children that need to be recognized the CRC Committee has underlined that data collection is necessary, and, furthermore, that the non-discrimination principle “does not mean identical treatment” as children have different needs.24 With regards to the best interests of the child principle, the CRC Committee has stated that active measures are needed, and that “[e]very legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions”.25 Commenting on Article 6 on how to understand “development” the CRC Committee has stated that it “expects States to interpret ‘development’ in its broadest sense as a holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development”.26 Regarding the principle of the child’s right to express his or her views freely according to Article 12, the CRC Committee has stated that this principle “applies equally to all measures adopted by States to implement the Convention”.27 Furthermore, the CRC Committee has underlined how important it is that these general principles (Articles 2, 3, 6 and 12) are reflected in domestic law, and that not only children’s rights statutes make reference to these principles, but that “all relevant ‘sectoral’

23

24

25

26

27

Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 12 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 12 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 12 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 12 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 12

The Legal Protection of Children and Armed Conflict

laws (on education, health, justice and so on) reflect consistently the principles and standards of the Convention”.28 10.1.1.1.

Children and Armed Conflict and Article 38 of the Convention on the Rights of the Child

With regards to situations of armed conflict, Article 38(1) of the Convention makes an important reference to international humanitarian law. This was a major improvement as the human rights of children in armed conflicts this way cannot be considered to be a separate body of law from international humanitarian law with regards to children.29 As van Bueren has explained, that with the UNCRC and its Article 38 and the establishment of the Committee on the Rights of the Child and its reporting procedure, as a result of Article 38 reporting at the UN came to also include international humanitarian law as it pertains to children, and as such the protection of children in armed conflict for the first time came within the scope of a body at the UN, the UNCRC Committee.30 Article 38 states that: 1.

States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed confl icts which are relevant to the child.

Article 38 also contains a prohibition for states parties not to recruit and use children as child soldiers: 2. 3.

4.

28

29 30

States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44, para. 6), CRC/GC/2003/5, 27 November 2003, para. 22 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 349 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 350

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As has been noted with the adoption of the CRC an opportunity to deal with the issue of child soldiers opened up.31 In this context it was observed that:32 When the UN embarked on the draft ing of a convention that would solely address the rights of the child, the inclusion of a provision addressing the situation of armed conflicts was considered essential. Some states and non-governmental agencies hoped it would be the perfect opportunity to improve the provisions of International Humanitarian Law on the question of age, type of recruitment, and type of participation.

It is noteworthy that while the minimum age limit for recruitment in Article 38 is set to 15 years, the definition of a child according to the CRC in its Article 1 is set to “any person under the age of 18 unless under the law applicable to the child, majority is attained earlier”.33 It was not possible in the end to adopt a “straight 18” approach because many countries were against it, including the United States.34 It has been said that during the draft ing period of the CRC one of the four most challenging provisions to find agreement on was Article 38, and that not being able to adopt a ‘“straight 18” position was the reason why the Optional Protocol on the Involvement of Children in Armed Conflict was drafted and then adopted in 2000.35 During the negotiations on Article 38, the Swedish delegation was leading a movement, which most of the delegations backed, that the age of 15 years would be raised to 18 in paragraph 2 of Article 38 as the age before which a child could not take part in the hostilities.36 However, in the end when the US was the only one opposing such a proposal in the Working Group dealing with this issue, the US was able to stop that proposal from moving forward and Article 38 was adopted with fifteen years being the age limit. The US based its position on two issues, firstly that it was possible to draft 17 year olds into service in the US army and that it therefore would be difficult to ensure that a person had turned 18 before being 31 32

33 34 35 36

Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, p. 201 Fontana of Institute of Security Studies 1997, in Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in Sloth-Nielsen, J., Ed., Children’s rights in Africa: a legal perspective, p. 201 Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, p. 201 Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, p. 202 Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, p. 202 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 37

The Legal Protection of Children and Armed Conflict

sent away to combat, and the army should not need to do that.37 Furthermore, the US argued that the international legal standards existing at the time could not be changed by the Working Group as its mandate did not permit it, which several of the other delegations did not accept meaning that, just the opposite, the Working Group was to develop new law.38 It needs to be taken into account that the drafting process took place during the Cold War and the then East/West political dynamics which at the time also influenced the drafting process of the CRC to a certain degree.39 For instance Price Cohen explains that it was not possible to adopt Articles 10, 13, 14, 15 and 16 of the Convention until after Gorbachev had been elected and the subsequent period of glasnost and perestroika, keeping in mind that there had been no discussions on these Articles for several years.40 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was drafted at roughly the same time as the CRC, and it was many times said at the time that the East/West political issues that went on in the Working Group drafting the Torture Convention were mirrored in the Working Group on the Children’s Convention.41 Still Hamilton and El-Haj have argued that from the perspective of the child Article 38 was “extremely disappointing” in terms of the rights included, and gives as an example Article 38(4) in which it is stated that states are not really obliged to take measures, as they are only to take “all feasible measures”.42 While some participants involved in the drafting process of the Article wanted to make the provision stronger in terms of children’s rights, because of the consensus needed to come to an agreement only “the lowest common denominator” was in the end achieved, which led to less protection for the children.43 Some govern-

37

38

39

40

41 42 43

Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 37 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 37 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 37-39 Price Cohen, C., Role of the United States in Draft ing the Convention on the Rights of the Child: Creating A New World for Children, 4 Loyola Poverty L.J. 9, (1998), p. 38 Hamilton C. and El-Haj, T. A., The protection of children under international law, the International Journal of Children’s Rights 5: 1-46, 1997, p. 38 Hamilton C. and El-Haj, T. A., The protection of children under international law, the International Journal of Children’s Rights 5: 1-46, 1997, p. 36 Hamilton C. and El-Haj, T. A., The protection of children under international law, the International Journal of Children’s Rights 5: 1-46, 1997, p. 36

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ments did not view the Convention as the place to develop and improve international humanitarian law. Furthermore with regards to children in armed conflict, states parties have an obligation to adopt appropriate measures to promote children’s physical and psychological recovery and social integration in Article 39 of the CRC, which states: States Parties shall take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

10.1.1.1.1.

The International Labour Organization’s Convention No. 182

Child labour is a widespread phenomenon in many conflict-affected countries, and the No. 182 Convention on the Worst Forms of Child Labour of 1999 defines a child in its Article 2 as all persons under 18 years of age, and the term “the worst forms of child labour” in its Article 3(a) as “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict”.44 According to Article 1 of the Convention the states parties to it are under the obligation to as a matter of urgency “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour”, by designing and implementing programmes that will eliminate such labour as a priority (Article 6). In Article 7(2) of the Convention, education has been identified as an important factor to eliminate child labour, and the states parties are under the obligation “to take effective and timebound measures to: (c) ensure access to free basic education, and 44

The Worst Forms of Child Labour Convention, 1999, Article 2: For the purposes of this Convention, the term child shall apply to all persons under the age of 18. Article 3: For the purposes of this Convention, the term the worst forms of child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defi ned in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

The Legal Protection of Children and Armed Conflict

… vocational training, for all children removed from the worst forms of child labour”. Such measures shall also be implemented to help prevent children from engaging in the worst forms of child labour, to remove children from such labour and to assist them in being able to rehabilitate and reintegrate socially ((b) and (c)). The states parties are obligated to identify and reach out to children who are at special risk and to take account of the special situation of girls ((d) and (e)). Sri Lanka, Colombia and the DRC have all ratified the Convention, and they are thus legally bound to adhere to the principles of this Convention, and as is stated in Article 1 of the Convention “[e]ach Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency”. As Mezmur has noted the Convention does not provide for a complete prohibition on the recruitment and use of children as child soldiers, as it is only the worst forms of child soldiering that are included in the Convention, like the LRA’s forced abductions of children in Uganda and the RUF’s forced abductions of children in Sierra Leone.45 The Convention does not cover the many other children who have been recruited to and joined these armed forces and groups so-called voluntarily.46 Worth noting is that neither Afghanistan nor Myanmar has ratified this Convention. 10.1.1.2.

The CRC Committee on the Rights of the Child

The Convention established the Committee on the Rights of the Child in its Article 43, which is a mechanism to monitor the implementation of the Convention by the states parties.47 The Committee is comprised of ten independent members serving in their personal capacity for a period of four years, and if renominated it is possible for them to be re-elected, Article 43(2) and (6). The states parties are obliged to turn in reports to the Committee on the situation of the child in their country, a first report no later than two years after the ratification of the Convention and thereafter every fift h year.48 There is an exchange of views and 45 46 47

48

Mezmur, B. D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 203 Mezmur, B. D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 203 OHCHR, Committee on the Rights of the Child, Monitoring children’s rights, p. 1 of 2, www2.ohchr.org/English/bodies/crc/index.htm: the Convention on the Rights of the Child, Article 43 p.1: “For the purposes of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.” UNCRC Article 44 p. 1: “States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights: (a) within two years of the entry into force of the Convention for the State Party concerned; (b) thereafter every five years.”

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questions between the government presenting a report and the Committee, and as a response to the reports the Committee offers conclusions and recommendations to the states, but there is no enforcement mechanism. However there is a follow-up process in that the Committee many times asks the government who has submitted a report to follow-up on certain issues the next time the government submits a report (which can take up to five years). The Committee has not been able to hear individual complaints, however other committees that have competence to hear individual complaints have been able to bring up issues concerning children’s rights if applicable.49 The Convention invites non-governmental organizations (“other competent bodies”) to contribute to the reporting and monitoring process in its Article 45, which is the first time a human rights treaty does so.50 The United Nations Children’s Fund (UNICEF) is given a legal obligation in the Convention to participate in the implementation process of the Convention, which is also the first time a human rights treaty gives it such a role.51 Regarding the implementation of the Convention as well as the encouragement of international cooperation, in Article 45 of the CRC it is stated that: In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention: (a) the specialised agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialised agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialised agencies, the United Nations Children’s Fund, and other United Nations Organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; (b) the Committee shall transmit, as it may consider appropriate, to the specialised agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications;

49 50

51

OHCHR, Committee on the Rights of the Child, Monitoring children’s rights, p. 1 UNICEF, Convention on the Rights of the Child, Monitoring the fulfillment of States obligations, www.unicef.org/crc/index_30210.html?; see also OHCHR, Fact Sheet No. 10 (Rev.1), The Rights of the Child, p. 4 UNICEF, Convention on the Rights of the Child, Monitoring the fulfi llment of States obligations, www.unicef.org/crc/index_30210.html?: see Article 45 in the Convention on the Rights of the Child.

The Legal Protection of Children and Armed Conflict

(c)

(d)

the Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child; the Committee may make suggestions and general recommendations based on information received pursuant to Articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.

At the second session of the Committee on the Rights of the Child in October 1992, the Committee held a general discussion on the theme “Children in armed conflicts”, as one of the reasons behind holding this debate was “to underline the complexity of the question of children in armed conflicts, which should not be simply reduced to the consideration of a single provision of the Convention namely article 38”.52 At this general discussion the Committee clearly stipulated that no derogation from the general provisions of the CRC are permitted in time of war or emergency: “When basing the consideration of the question of children in armed conflicts on the Convention itself, it was recalled that States Parties have undertaken to respect and ensure all the rights set forth therein to all children within their jurisdiction (art. 2). States Parties have also made a commitment to adopt all appropriate measures in order to achieve such a purpose (art. 4) and that, in all actions taken, the best interests of the child shall be a primary consideration (art. 3). None of these general provisions admit a derogation in time of war or emergency.”53 With regards to the lack of an individual complaints procedure an “Openended Working Group to explore the possibility of elaborating an optional protocol to the Convention on the Rights of the Child” was established by the Human Rights Council in 2009 with the purpose of finding out whether an individual communications procedure to the CRC could be established as exists for the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the ICCPR (CCPR), ICESCR, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), CEDAW, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities (CRPD).54 The 52

53 54

CRC/C/10, para . 61 and 62 (d); “The Committee devoted its 38th and 39th meetings, on 5 October 1992, to a general discussion on Children in armed confl icts,” para. 64, www2.ohchr.org/English/bodies/crc/docs/discussion/conflict CRC/C/10, para. 67, www2.ohchr.org/English/bodies/crc/docs/discussion/conflict General Assembly, Human Rights Council, 11/…Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/11/L.3, 12 June 2009, preamble and para. 1; and the

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Chairperson of the Committee on the Rights of the Child, when giving a presentation at the 63rd session of the General Assembly, argued that such a communications procedure “would significantly contribute to the overall protection of children’s rights”.55 This Working Group had its first meeting in December 2009, at which time the Working Group took into account the CRC Committee’s views as it had been requested to do by the Human Rights Council.56 In April 2010, the Human Rights Council in a resolution decided to give the Open-Ended Working Group the mandate “to elaborate an optional protocol to the Convention on the Rights of the Child to provide a communications procedure” and thus requested that the Chairperson of the Working Group “prepare a proposal for a draft optional protocol”.57 The Chairperson and the Vice-Chairperson of the UNCRC Committee co-chaired an expert consultation in June 2010 in Geneva, which had been convened by the OHCHR and the International Commission of Jurists, with the aim of having a discussion on what a protocol on a communications procedure would consist of.58 Many experts submitted their proposals for such a procedure, including that children as individuals or as part of a group should be able to submit complaints directly to the Committee and that the CEDAW could serve as a model and that no reservations to the optional protocol could be made.59 The CRC Committee commented on the proposal submit-

55

56

57

58

59

Office of the United Nations High Commissioner for Human Rights, Open-ended Working Group to explore the possibility of elaborating an optional protocol to the Convention on the Rights of the Child, www2.ohchr.org/english/bodies/hrcouncil/ OEWG/index.htm, accessed 2010-01-27 General Assembly, Human Rights Council, 11/…Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/11/L.3, 12 June 2009 General Assembly, Comments by the Committee on the Rights of the Child on the proposal for a draft optional protocol prepared by the Chairperson-Rapporteur of the Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/WG.7/2/3, 13 October 2010, para. 1 General Assembly, resolution adopted by the Human Rights Council, 13/3, Openended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/RES/13/3, 14 April 2010, para. 3 General Assembly, Comments by the Committee on the Rights of the Child on the proposal for a draft optional protocol prepared by the Chairperson-Rapporteur of the Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/WG.7/2/3, 13 October 2010, para. 2 General Assembly, Comments by the Committee on the Rights of the Child on the proposal for a draft optional protocol prepared by the Chairperson-Rapporteur of the Open-ended Working Group on an optional protocol to the Convention on the

The Legal Protection of Children and Armed Conflict

ted by this conference stating that first of all such an optional protocol must be child-oriented and that states parties must “take into account the importance of the status of the child as subjects of rights and as a human being with evolving capacities”.60 The Committee submitted several comments, and remarked that it hoped that the Working Group would be able to draft and have such a proposal approved by the Human Rights Council and the General Assembly by 2011.61 In December 2011 the General Assembly adopted the Optional Protocol to the CRC on a Communications Procedure which enables “individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols” to the Committee on the Rights of the Child.62 In 2012 the Protocol opens for signature and will enter into force when ten UN member states have ratified it.63 The CRC Committee also interprets the different provisions of the Convention in what is termed “General Comments”, which are comments on thematic issues such as the General Comment No. 13 (2011) on “The right of the child to freedom from all forms of violence” and General Comment No. 1 (2001) on “The aims of education”, and it also convenes days of general discussions on thematic issues.64 Lucy Smith a former member of the CRC Committee has commented about the challenges involved in the implementation of the CRC:

60

61

62

63 64

Rights of the Child to provide a communications procedure, A/HRC/WG.7/2/3, 13 October 2010, para. 3(b) and 3 (g) General Assembly, Comments by the Committee on the Rights of the Child on the proposal for a draft optional protocol prepared by the Chairperson-Rapporteur of the Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/WG.7/2/3, 13 October 2010, II, para. 6 General Assembly, Comments by the Committee on the Rights of the Child on the proposal for a draft optional protocol prepared by the Chairperson-Rapporteur of the Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure, A/HRC/WG.7/2/3, 13 October 2010, III, para. 24 General Assembly, A/RES/66/138, 19 December 2011, The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, OHCHR, Children empowered to complain about rights violations under the new UN protocol, www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11732&La..., 2011-12-22 As of November 2012, the Protocol has 35 signatories and 2 ratifications, http://treaties.un.org Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of the Child – General Comments, http://www2.ohchr.org/english/bodies/crc/comments.htm

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There are many factors impeding the implementation of the Convention, even in countries where the CRC has been incorporated. First of all, there is a lack of resources, both human and economic, but it is also sometimes a lack of political will, and often a lack of a true comprehension of children’s rights. The key to understanding the CRC – and to live by it – is to know, accept and internalise that a child is an independent human being with subjective rights, and that a child has the same right to dignity as adults have. In many countries this understanding is still lacking. Even if there is a political will in the State Party and also some economic resources, lack of leadership regarding the different bodies working for the implementation of the convention is a general problem, at all levels, local and central. There is often an obvious need for a coordinating, overarching body for strengthening and making more effective the efforts of implementation of the CRC.65

She has also stated about what kind of measures, in accordance with Article 4 of the CRC, that the Committee tries to make states parties implement: “The Committee urges the State Parties to make the children visible in the budgets because this is the only way to monitor the will to fulfi l their obligations to use ‘to the maximum extent of their available resources.’”66Article 4 of the CRC states that: States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”

10.1.2.

The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

Except for the new Optional Protocol to the CRC on a Communications Procedure, there are two Optional Protocols to the CRC, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, which was adopted by the UN General Assembly on 12 February 65

66

Smith, L., Monitoring the CRC, Chapter 10 in Alfredsson, G., Grimheden, J., Ramcharan B. C., Zayas, A., Eds., International Human Rights Monitoring Mechanisms, Essays in Honour of Jakob Th. Möller, 2nd Revised Edition, The Raoul Wallenberg Institute Human Rights Library, 2009, p. 113 Smith, L., Monitoring the CRC, Chapter 10 in Alfredsson, G., Grimheden, J., Ramcharan B. C., Zayas, A., Eds., International Human Rights Monitoring Mechanisms, Essays in Honour of Jakob Th. Möller, 2nd Revised Edition, The Raoul Wallenberg Institute Human Rights Library, 2009, p. 113

The Legal Protection of Children and Armed Conflict

2000, and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, which was adopted by the General Assembly on 25 May 2000 and entered into force 18 January 2002.67 The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts makes compulsory recruitment of children under 18 years of age into armed governmental forces to participate in direct combat illegal.68 As is stated in Articles 1 and 2 of the Protocol: Article 1 States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities. Article 2 States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.

The Optional Protocol increased the minimum age from 15 years to 18 years, but regarding “voluntary enlistment” the minimum age was still kept at 15 years.69 As Article 3(1) and (2) stipulate: 1.

2.

States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that article and recognizing that under the Convention persons under 18 are entitled to special protection. Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.

In terms of voluntary recruitment into the armed forces of children under the age of 18 years Article 3(3) contains some minimum safeguards that need to be observed by the states parties:

67 68

69

See General Assembly Resolution A/RES/54/263 Press Release HR/4474, May 26, 2000; “Special Representative of the Secretary-General for Children and Armed Conflict welcomes Protocol on underage recruitment, urges swift ratification”. Mezmur, B. D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 203

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(a) (b) (c) (d)

Such recruitment is genuinely voluntary; Such recruitment is done with the informed consent of the person’s parents or legal guardians; Such persons are fully informed of the duties involved in such military service; Such persons provide reliable proof of age prior to acceptance into national military service.

…

While the minimum age for voluntary enlistment of children is 15 years of age, children cannot participate in direct combat until they are 18 years of age. The Optional Protocol also addresses recruitment of children by non-state actors, and the Protocol states in its Article 4 that the recruitment or use in hostilities of anyone under 18 years is forbidden by these non-state actors “under any circumstances”: 1.

2.

Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years. States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.

…

In its Article 6(3), the Optional Protocol addresses the necessity of having some form of disarmament, demobilization and reintegration (DDR) process in place for children who have been recruited and used in hostilities in contravention of the Protocol, as the states parties are “to take all feasible measures” to ensure that the children are demobilized and released from service. When the CRC was being drafted many states parties doubted that Article 38 would provide enough protection for children at risk of being recruited and used as child soldiers, and already on the first day when the CRC Committee held a General Discussion on “Children in armed conflict” there was a proposal for an optional protocol to the UNCRC being prepared.70 Led by the Coalition to Stop the Use of Child Soldiers, many NGOs engaged in a global campaign to have the Optional Protocol adopted, which it was in 2000.71 The Committee on the Rights of the Child plays a role in the Optional Protocol as all states parties to the Protocol, according to its Article 8(1), are obliged to submit a report to the Committee on the Rights of the Child within two years of the entry into force of the Protocol for a state party. Once the state 70 71

Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 203 Mezmur, B., D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 203

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party has sent in this first report, in every subsequent report that the state party sends to the Committee on the Rights of the Child as a state party to the CRC, in accordance with Article 44 of the CRC, each such report should include a section concerning information on the Protocol (Article 8(2)). For the State Parties to the Protocol that are not states parties to the CRC, they should send in a report every five years to the Committee according to Article 8(2). If needed the Committee can request a state party to the Protocol to provide additional information (Article 8(3)). In the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, specifically girl children have been signalled out as a particularly vulnerable group that is exposed to a greater risk of being exploited sexually.72 It is recognized that girls are a disproportionately large group that are being exposed to these crimes. The states parties have adopted with respect to this Optional Protocol a “holistic approach” to this issue believing that such an approach will facilitate putting an end to the sale of children, child prostitution and child pornography (the preamble). The states parties recognize that armed conflicts contribute to the vulnerability and exposure of children to the sale of children, child prostitution and child pornography and states in the preamble that a holistic approach includes “addressing the contributing factors, including underdevelopment, poverty, economic disparities, inequitable socio-economic structure, dysfunctioning families, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behavior, harmful traditional practices, armed conflicts and trafficking of children”. Colombia, Nepal, India and Iraq where trafficking of children, an acknowledged contributing factor to the sale of children, child prostitution and child pornography, is of great concern are among the states that have ratified the Optional Protocol and thus have committed themselves to prohibit the sale of children, the prostitution of children and child pornography as well as to harmonize their national criminal and penal legislations to criminalize these crimes.73 As is stated in Article 1 of the Optional Protocol: States Parties shall prohibit the sale of children, child prostitution and child pornography as provided for by the present Protocol.

Article 2 defines what the sale of children, the prostitution of children and child pornography is: 72

73

See Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, Adopted and opened for signature, ratification and accession by General Assembly resolution 54/263 of 25 May 2000, Entry into force, 18 January 2002, The Preamble Article 1, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

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For the purposes of the present Protocol: (a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another remuneration or any other consideration; (b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration; (c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.

Importantly these crimes are to be covered by the criminal and penal laws of the states parties independently of if they have been committed domestically or transnationally and whether on an individual or organized basis.74 States Parties are to send in a first report to the Committee of the Rights of the Child two years after they have ratified the Protocol and thereafter states parties to the CRC should include in their reports on that Convention, according to Article 44 of the CRC, any additional relevant information on the Optional Protocol.75 Those states parties to the Optional Protocol that have not ratified the CRC need to send in additional reports every fift h year informing about the measures they have taken to implement the Protocol. The Committee also may request any further information needed from the state parties (Article 12(3)). In 2010 a campaign was launched by the UN Special Representative of the Secretary-General on Children and Armed Conflict, the UN Human Rights Office and UNICEF to have by 2012 all member states of the UN ratify these two Protocols.76 This campaign resulted in May 2011 15 additional ratifications, four signatures and several commitments to have these treaties ratified. As of November 2012 the Optional Protocol on the Involvement of Children in Armed Conflict had 129 signatories and 150 states parties and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography had 120 signatories and 162 states parties.77 Of note is that the US ratified the two Optional Protocols to the CRC on the Involvement of Children in Armed Conflicts and on the Sale of Children, Child Prostitution and Child Pornography on 23 December 2002, and that Somalia signed (has not ratified) the Optional Protocol on the Involvement of Children in Armed Conflicts on 16 September 2005, but has neither signed nor ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. 74 75 76 77

Article 3, paragraph 1, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography Article 12, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography OHCHR, Drive to protect children reaches milestone, http://www.ohchr.org/EN/ NewsEvents/Pages/Drivetoprotectchildrenreachesmilestone.aspx, 5/27/2011) OHCHR, http://www.treaties.un.org

The Legal Protection of Children and Armed Conflict

10.1.2.1.

United Nations Committee on the Rights of the Child and State Reports Under the Two Protocols That Have Entered Into Force

The United Nations Committee on the Rights of the Child monitors the implementation of the two Optional Protocols to the Convention, the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Optional Protocol on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. In this section the CRC Committee’s considerations of the two latest reports by Colombia with regards to the two Protocols will be examined. 10.1.2.1.1. The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography78 The CRC Committee in its observations on Colombia when it considered Colombia’s report on the Optional Protocol on the sale of children, child prostitution and child pornography first noted that the report was overdue and did not follow the guidelines on how to report, and focused mainly on sexual exploitation of children and as a result many concerns regarding this specific Optional Protocol remained unaddressed.79 While the Committee appreciated that Colombia had adopted the Law 1098 of 2006 on Childhood and Adolescence, The Law 1329 of 17 July 2009 on provisions to combat commercial sexual exploitation of children and the Law 1336 of 21 July 2009 on reinforced measures against exploitation, pornography and sexual tourism with children, the Committee noted that there was no systematic and comprehensive data gathered on the extent of the sale of children, child prostitution and child pornography. The Committee highlighted throughout its observations the situation for vulnerable groups of children like children living in poverty, children affected by the armed conflict, displaced children and Afro-Colombian and indigenous children. The highlighted observations included lack of public awareness of this Protocol and then especially among these children insufficient preventive efforts and lack of targeted measures especially since these groups of children are among the main victims of these crimes and that physical and psychosocial recovery and social re78

79

The CRC Committee, Considerations of Reports submitted by States parties under article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, Concluding observations: Colombia, CRC/C/OPSC/COL/Co/1, 11 June, 2010 The CRC Committee, Considerations submitted by States parties under article 12(1) of the Optional Protocol on the sale of children, child prostitution and child pornography, Concluding observations: Colombia, CRC/C/OPSC/COL/Co/1, 11 June, 2010, p. 1

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integration measures as called for in the Protocol for especially these groups are lacking.80 The Committee’s concerns also included that the existing Colombian legislation did not cover sale of children but only trafficking, and that while the ICBF had established the Centres for Integral Attention for Victims of Sexual Violence (CAVIDAS) and of Family Defenders, the staff still needed training on the Protocol.81 Also the high risks involved in coming forward as victims and witnesses in cases regarding child prostitution and trafficking was noted in the context that the Attorney General’s Office could not provide sufficient protection. The Colombian government had in its report not provided any information on protection measures. 10.1.2.1.2. The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Concluding Observations82 The CRC Committee noted that the Law on Childhood and Adolescence No. 1098 was adopted in 2006 (El Codigo de la Infancia y Adolescencia), and that it has a provision banning the recruitment and use of children by armed groups (Article 20).83 The CRC Committee took note that the Colombian government had cooperated in the area of human rights including having had voluntarily accepted the establishment of the 1612 MRM country task force, and having cooperated with

80

81

82

83

The CRC Committee, Considerations submitted by States parties under article 12(1) of the Optional Protocol on the sale of children, child prostitution and child pornography, Concluding observations: Colombia, CRC/C/OPSC/COL/Co/1, 11 June, 2010, p. 3, 4, 6 The CRC Committee, Considerations submitted by States parties under article 12(1) of the Optional Protocol on the sale of children, child prostitution and child pornography, Concluding observations: Colombia, CRC/C/OPSC/COL/Co/1, 11 June, 2010, p. 5 and 6 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 5

The Legal Protection of Children and Armed Conflict

the SRSG-CAAC.84 The Colombian government is also expected to cooperate with the Office of the SRSG-SXVC as the work of this office progresses.85 The CRC Committee again expressed its concern of the extra-judicial killings of civilians including children by the Colombian armed forces, who have presented those killed as members of the guerrillas having been killed in combat.86 In this respect the CRC Committee underlined the responsibility of the government and urged it to take measures to put an end to such killings and bring those responsible for such killings to justice, which the military penal jurisdiction was not the competent instance to handle.87 It is the Colombian Family Welfare Institute (ICBF) that has the responsibility to implement the Protocol of the CRCOPCAC, but the CRC Committee expressed its concern that coordination was insufficient with the judiciary, regional and local authorities and entities such as the Human Rights Ombudsman, the High Commissioner for Peace, the Defense Ministry, the Attorney General’s Office and the Inspector General’s Office and recommended the government to address this issue.88 The Committee also recommended the government to raise awareness among the population of the Protocol, including children, teachers and local authorities in those areas affected by the armed conflict. In this context the Committee recommended the government to counteract “negative media portrayals of children who may have been used in hostilities”.89 The government was also recommended to provide training on the Protocol to the military, police and professional groups working with children such as prosecutors, lawyers, 84

85 86

87

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The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 7 (c) and (d) Margot Wallström, Special Representative of the Secretary-General on Sexual Violence in Confl ict, Interview, United Nations, New York, August 5, 2010 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 8 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 8-9 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 10 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 13

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judges, law enforcement and was asked to provide information on this type of training to the CRC next time it submitted a report on the CRC.90 The National Administrative Department of Statistics (DANE) is responsible for collecting information and statistics on the number of former child soldiers who have “participated in reintegration programmes”, but the CRC Committee noted that this work was insufficient and that “the official data available on the children who had demobilized from the paramilitary groups was incomplete” and recommended the Colombian government to continue identifying children who have been members of paramilitary groups as well as that DANE improve the coordination and systematisation of data from different entities such as ICBF, the Ministry of Defense and the Human Rights Ombudsman’s Office and that the data compiled be organized into categories of sex, age and ethnic group and be used for policy planning and evaluation.91 The government has established several mechanisms to prevent recruitment and use of children by armed groups including the Early Alert System (SAT), the work of the Human Rights Ombudsman (La Defensoria del Pueblo) and community based human rights ombudsmen (defensores comunitarios) “in areas which are particularly vulnerable to armed conflict, including indigenous and Afro Colombian communities”.92 The Intersectoral Commission for the prevention of child recruitment was established in 2007 (Decree 4690), and this Commission has identified 120 municipalities “for priority interventions”.93 However, all these three institutions lack resources and the CRC Committee recommended the government to provide adequate resources and sustained funding to all of them stating for instance that while the SAT provides many risk reports on possible child recruitment and forced displacement, few such reports are made into early alerts (alertas tempranas), and more resources need to be provided to the system.94 90

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The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 15 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 16-17 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 18 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 18 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on

The Legal Protection of Children and Armed Conflict

The CRC Committee expressed its deep concern “over the persistent attacks and intimidations against human rights defenders, including those working on children’s rights”.95 Here the Committee referred to the recommendations that the Special Rapporteur on the situation of human rights defenders had issued in 2009 (A/HRC/13/22/Add.3), as well as to the report by the Inter-American Commission on Human Rights on human rights defenders in the Americas issued in 2006. The Colombian government has established the Presidential Programme for Integral Action against Land Mines, but the CRC Committee expressed its concern that these efforts were inadequate and insufficient and that underreporting of civilian casualties continued to be a problem, and recommended the government to “expand its land mines prevention programmes aimed at reducing injuries to children” and to guarantee the implementation of child-friendly measures.96 Furthermore, the government has implemented in 120 municipalities a strategy to promote a culture of non-violence, and in this regard the Committee recommended the government to ensure that the school curricula be consistent with the CRC Article 29 and that peace education be systematically implemented in the school system making reference to its General Comment No. 1 on the aims of education (CRC/GC/2001/1).97 With regards to the recruitment and use of children as child soldiers the Committee stated that: The Committee abhors the continued extensive recruitment and use of children by illegal armed groups. The Committee deeply regrets that despite having made commitments not to recruit children under the age of 15 years, both the FARC-EP and the ELN continue such practices, which constitute serious war crimes. The Committee is gravely concerned that children who refuse to be recruited are killed or forcibly displaced and that Afro Colombian and indigenous children are particularly vulnerable as their communities often are affected by the armed conflict. The

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the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 18-19 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 20 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 22-23 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 24-25

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Committee is furthermore concerned over reports that new illegal armed groups have emerged following the demobilization of paramilitary organizations and that these organizations recruit and use children in violation of article 4 of the Protocol.98

In this respect the CRC Committee recommended that the government:99 27. (a)

b)

c)

d)

In the light of article 4 of the Protocol, the State party takes all feasible measures to eliminate the root causes and prevent recruitment and use of persons below the age of 18 years by armed groups that are distinct from the armed forces of the State. Particular attention should be paid to preventing recruitment and use of Afro Colombian and indigenous children and that such measures should be developed in consultation with the affected communities; The State Party ensure that special and adequate attention is paid to children who have been recruited or used in hostilities when entering into negotiation and talks with illegal armed groups; During ceasefire and peace negotiations all parties be made aware of their obligations under the Protocol, which should form an integral part of any peace agreements and their subsequent implementation; The State Party ensure the effective enforcement of existing penal provisions on child recruitment;

The Colombian Penal Code, Law No. 599 of 2000, Article 162 criminalizes the recruitment of children below the age of 18 years by both the armed forces and the illegal armed groups, and “[t]he definition of the crime encompasses both direct and indirect participation of children, including the use of children for intelligence purposes”.100 The government informed the Committee that about 1,015 investigations into child recruitment cases were going on, but the Committee expressed its serious concern that “the majority of cases failed to proceed be-

98

The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 26 99 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 27 100 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 28

The Legal Protection of Children and Armed Conflict

yond the preliminary stages to opened formal investigations and over the very low number of convictions, only 2”.101 With regards to the debated Law 975 of 2005 the Committee expressed its concern: The Committee is gravely concerned over the very low number of children, less than 400, released during the demobilization of paramilitary groups under the Law 975 of 2005, in relation to which over 31.000 persons were collectively demobilized. The Committee notes that the comprehensive hand-over of all children recruited by illegal armed groups is an essential criterion in order to access legal benefits under Law 975. While the Committee notes information from the State party that the Law 975 must be implemented in accordance with article 162 of the Penal Code, the Committee is deeply concerned that Law 975 in practice has entailed impunity for war crimes of child recruitment as there have been 1137 confessions of child recruitment but only 92 charges presented and no convictions to date.102

10.1.2.1.2.1. Sexual Violence The Committee discussed sexual violence of children and stated that “[t]he Committee is deeply concerned over reports indicating increasing numbers of children, especially girls, who are victims of sexual violence by illegal armed groups as well as by the armed forces. The Committee recalls article 8 (2) (b) (xxii) of the Rome Statute of the International Criminal Court and the Security Council resolution 1882 and that rape, sexual slavery, enforced prostitution and forced pregnancy constitute serious war crimes.”103 Here the Committee reaffirmed the OHCHR’s recommendations in its annual report of 2009 to the Human Rights Council on the situation of human rights in Colombia (A/ HRC/13/72, para. 105(d)), stating that the Attorney General create a system of reliable information collection on the occurrence of any acts of sexual violence and gender-based crimes and that the Ministry of Defense undertake a ‘zero tolerance’ policy for these violations, includ-

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The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 28 102 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 30 103 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 34

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ing the immediate separation from service of those responsible. The Committee underlines the obligation to prevent impunity and urges the State party to undertake prompt and impartial investigations of such crimes. The Committee furthermore urges the State Party to strengthen resources for physical and psychological recovery for girl victims of sexual violence and ensure that secondary victimization in the access to justice is avoided.104

Furthermore, the Committee referred to the Inter-American Convention on the prevention, punishment and eradication of violence against women and the 2006 report of the Rapporteur of the Inter-American Commission on Human Rights on Violence and Discrimination Against Women in the armed conflict in Colombia. The CRC Committee expressed its concern that children continue to be used as informants for intelligence purposes in contravention of “clear military instructions”, and in this regard the Committee expressed its concern over the children who had been captured by the armed forces or had demobilized from illegal armed groups and been “subjected” to interrogations.105 Furthermore, the Committee pointed out that “the military does not always hand over children to civilian authorities, notably the ICBF, within the stipulated time period of 36 hours and that guarantees to protect the confidentiality of information provided by children to the ICBF are insufficient”.106 10.1.2.1.2.2. Use and Occupation of Schools The Committee repeated its previously stated concerns about schools being used for child recruitment by illegal armed groups, and “over the executions of teachers who attempt to prevent such recruitment”.107 The Committee also expressed its concern about the armed forces continuing to occupying schools and that in the vicinity of schools military operations continued to be carried out. Here the 104 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 35 105 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 37 106 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 37 107 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 39

The Legal Protection of Children and Armed Conflict

Committee stated that it is the duty of the government “to guarantee the right to education throughout the territory, however underlines that military presence in the vicinity of schools significantly increases the risk of exposing school children to hostilities and retaliations by illegal armed groups”.108 10.1.2.1.2.3. Civic Military Activities The Law on Childhood and Adolescence 1098 of 2006 in its Article 41(29) stipulates that the armed forces must abstain from using children in civic-military activities, but the Committee expressed its concern that the armed forces continue civic-military activities in the schools and communities, and invite children to visit military installations and to wear military and police uniforms.109 The Committee reaffirming its earlier recommendations stipulated that the government should “refrain from involving children in any military activities, including study visits to military bases or military events in schools as such involvement, given the ongoing internal conflict, compromises the humanitarian law principle of distinction of the civilian population and places the children at risk of retaliation by members of illegal armed groups”.110 10.1.2.1.2.4. Assistance for Physical and Psychological Recovery Here the Committee welcomed “the demobilization programme run by the ICBF which has assisted over 4,200 children over the past decade. The Committee also notes as positive that the administrative reparations programme established under Decree 1290 of 2008 has identified children who have been recruited by armed groups and victims of land mines as prioritized groups of beneficiaries. The Committee however remains concerned over the high number of children who have been victims in the armed conflict and that many fail to receive comprehensive reparations and adequate assistance for their physical and psychological recovery. The Committee was concerned over the potentially discriminatory treatment of children depending on which illegal armed group they are demo-

108 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 39 109 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 41 110 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 42

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bilized from and that children who have been informally released from illegal armed groups do not receive assistance and recovery measures.”111 The Committee recommended that the government continue to improve “efforts to provide children with comprehensive reparations measures and to ensure that gender perspectives are adequately taken into account and that measures are provided in a non-discriminatory manner irrespective of the illegal armed group from which the children are demobilized”.112 Furthermore, the Committee referred to the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (Economic and Social Council resolution 2005/20) in cases where child victims would testify in criminal proceedings and suggested that the government be guided by these.113 10.1.2.1.3. Committee on the Rights of the Child, Summary Record of the 1528th (Chamber A) Meeting, Initial Report of Colombia Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, CRC/C/SR.1528, 22 June 2010 The Colombian government was invited by the Committee on the Rights of the Child to respond to questions, and to give its own account of the situation for children under the Protocol. The government representative stated that as of 22 June 2010 the Colombian Family Welfare Institute and the High Council for the Social and Economic Reintegration of Armed Insurgents had assisted 4,295 former child soldiers to demobilize.114 Since not all minors had been part of the government’s demobilization process during 2003 and 2006, and therefore had been unaccounted for, the Colombian Family Welfare Institute, the Offices of the President and VicePresident and the Office of the Attorney-General had been assisted by the Mission to Support the Peace Process in Colombia to launch an initiative “to identify and 111

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The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 43 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 44 The CRC Committee, Considerations of Reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding observations: Colombia, CRC/C/OPAC/COL/Co/1, 11 June, 2010, para. 45 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 4

The Legal Protection of Children and Armed Conflict

restore the rights of all persons who, as minors, had been members of an illegal armed group and had not been demobilized, regardless of their current age”.115 To be able to carry out these activities 51 individuals had been employed full-time, and they had conducted many interviews and studies with the intention of being able to identify those individuals who had not been part of a formal demobilization process and who as minors had been members of illegal armed groups, and so far the initiative had been able to identify 80 individuals of which 78 agreed to be part of the formal reintegration programme.116 The Colombian representative at the meeting with the Committee on the Rights of the Child in June 2010 stated that “the initiative would remain in force until every person concerned had been found and offered assistance”.117 Four directives regarding that minors under the age of 18 years are not to participate in civil-military activities had been given out by the Colombian Ministry of Defense to the security forces and law enforcement officials, and a complaint procedure was established.118 The government has increased the penalty to 15 years imprisonment for the illegal recruitment of minors into the armed forces or illegal armed groups, which needs to be seen in the context that the government has criminalized through legislation the recruitment of children under the age of 18 years to do military service, regardless of the consent of parents.119 With regards to enforcing accountability, the Justice and Peace Unit of the Office of the Attorney-General and the judiciary have been strengthened. As of June

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Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 4 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 4 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 4 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 5 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 2 and 5

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2010, 707 proceedings with regards to the illegal recruitment of minors were initiated by the Justice and Peace Unit.120 In 2007 the Intersectoral Commission to Prevent the Recruitment and Use of Children by Illegal Armed Groups was established, and this Commission works to improve the coordination of existing programmes “to prevent the illegal recruitment of children, to assist victims and to encourage communities to report incidents”.121 The Intersectoral Commission has an annual budget of USD 190 million, and has prioritized 120 municipalities and has established action plans for 15 governmental bodies encompassing the Office of the ProcuratorGeneral and the Ombudsman. The CRC Committee’s Country Rapporteur for the Optional Protocols has made note of the many legal and institutional developments that the Colombian government has initiated, however she also has noted that despite all this progress children are still illegally being recruited, sexually violated, killed and disappeared, used as informants by the military forces, and victims of landmines and attacks against schools.122 In this context she has posed several questions to the Colombian government asking to know about the actual impact of these measures on the protection of children such as: What steps the State Party had taken to prevent violations of the right to life by the FARC-EP and other illegal armed groups and to halt extra-judicial killings? What impact had the work of the Intersectoral Commission had in preventing the recruitment of children by illegal armed groups and by self-defense groups in the most vulnerable 120 municipalities? The large number of reports of illegal recruitment of minors received by the Ombudsman revealed the extent of the problem, yet few alerts or preventive measures appeared to have been launched. Why was that so?123

120 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 5 121 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 6 122 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 9 and 10 123 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 11

The Legal Protection of Children and Armed Conflict

She further asked that the government provide an account of the “obstacles” it encountered in implementing the new measures, including the human and financial resources that the special unit which was in charge of looking into violations of the Optional Protocol in the Office of the Attorney-General had at its disposal.124 Here she asked: What measures had been introduced to ensure effective sentencing and to expedite judicial procedures? How many of the convictions mentioned in paragraph No. 118 of the written replies (CRC/OPAC/COL/Q/1/Add.1) concerned cases in which the victim had been a minor? The continued use of military courts in certain instances failed to provide impartial treatment and led to impunity in many cases. She asked why military courts were still being used to judge children and what was being done to reverse that situation. Under Act No. 975 of 2005, former combatant Autodefensas Unidas de Colombia (United Self-Defence Forces of Colombia) (AUC) who had committed offences covered by the Optional Protocol was not eligible for reductions in sentences. The delegation should explain, then, what positive effects the demobilization had had in terms of the enjoyment of the rights enshrined in the Optional Protocol. Information on the number of children who had been demobilized from illegal armed groups and who had received assistance from the reintegration programmes of the Colombian Family Welfare Institute would be appreciated.125

The Country Rapporteur also noted that the Colombian government had stated that the security forces had in territories that had been freed occupied schools with the purpose of guaranteeing the right to education.126 Here she asked: “How did the Government ensure that children did not become the targets of reprisal attacks by illegal armed groups?” She also asked to know about the differences between the reparations for victims according to Act No. 975 compared to the Act. No. 1290 of 2008, and she asked the Colombian government to give an account of the progress it had made

124 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 12 125 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 12 126 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 13

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with regards to the targets set by the Secretary-General for the complete removal of children from armed conflicts.127 That there is some confusion about the role of the CRC Committee and what it can do was shown by the Colombian head of delegation to the CRC Committee in June 2010 having asked the Committee to urge non-state armed groups to stop the recruitment of children, and as one of the Committee members stated the fact was that the Committee could not intervene but that instead this was the responsibility of the state party.128 The Colombian National Human Rights Unit of the Office of the AttorneyGeneral had heard 125 cases which concerned alleged child victims of extrajudicial killings out of 1,354 cases involving extrajudicial killings.129 The Colombian government would at another date give the Committee the exact number of cases that concerned children out of the 212 cases that had been tried out of which there had been 160 convictions. The Chairperson of the Committee noted that the Colombian military had been carrying out an awareness-raising campaign in schools on anti-personnel landmines.130 In 2007 the Colombian government set up the Intersectoral Commission to Prevent the Recruitment and Use of Children, Adolescents and Young Persons by Illegal Groups, and it is to cooperate with families, communities and local authorities as regards preventing child recruitment.131 The Colombian government makes a distinction between recruitment by illegal armed groups and organized criminal gangs, using the term “recruitment” of children by illegal armed groups

127 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 14 128 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 20 129 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 37 130 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 22 131 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 6

The Legal Protection of Children and Armed Conflict

and “use” of children when it is by organized criminal groups.132 The reason for this is that the UN Secretary-General had made this distinction in a report on the human rights situation in Colombia.133 The Intersectoral Commission at first focused on the recruitment of children by the two main illegal armed groups, but came to understand that it was also necessary to deal with the use of children and adolescents in organized crime. Children were at high risk of being either recruited by illegal armed groups or used by criminal groups in some municipalities, and the Intersectoral Commission prioritized these areas.134 This work is being done independently of whether the Office of the Ombudsman has sent out any early warning alerts. The children recruited by mainly FARC and ELN always lived away from their families and homes and were given uniforms and weapons, while the children used by organized criminal groups for various criminal activities continued to live at home with their families, as the groups are mainly located in the urban areas.135 The government regards the children from both groups equally as victims, victims of political violence or of crime, as well as that the children are to be viewed legally as victims of the worst form of child labour, and judges and prosecutors are to view these children irrespective of which groups they have been members of as victims and to apply the principle of opportunity if their cases come before the court.136 The principle of opportunity entails that criminal charges will not be brought by the government for any crimes committed by children.137 The Colombian Family Welfare Institute (ICBF) has a specialized 132

Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 133 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 134 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 135 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 136 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 137 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention

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programme for both groups of children and the assistance provided is the same for them. The government issued a decree in 2009 which gives the children and adolescents who have been recruited by illegal armed groups the right to “full reparation”, and as of June 2010 more than 400 children and adolescents had been given such financial compensation.138 In addition, the children and adolescents who have been illegally recruited are also entitled to press charges in court, the financial compensation does not exclude this, and they also have the right to receive help to be socially and economically reintegrated. Colombia has two parallel legal systems that function at the same time, the Justice and Peace Act and the ordinary justice system, and the Office of the Attorney-General has established for the illegal recruitment of minors two separate units for cases either before the ordinary justice system or within the Justice and Peace Act.139 The ordinary justice system was as of June 2010 dealing with 239 cases of recruitment by illegal armed groups, and 300 cases of illegal recruitment by the military, and in 2009 only two convictions had been handed down out of the 239 cases.140 The Committee expressed its concern that some children who had been recruited by illegal armed groups and participated in the armed conflict had been arrested and brought to trial and been convicted.141 In this context the Committee wanted to know who heard these cases and whether the government could guarantee that specialized military courts never tried cases concerning minors below 18 years of age. A representative of the Colombian government responded that the Code on Children and Adolescents of 2006, Act No. 1098, established that children under the age of 18 years who had participated in the armed conflict should be regarded as victims, and as a consequence from 2006 neither the ordinary justice

on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 138 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 26 139 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 28 140 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 28 141 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 30

The Legal Protection of Children and Armed Conflict

system nor the military courts prosecuted these children.142 It was the task of the ICBF to assist the children who had been recruited by illegal armed groups or the military, and from 1999 about 4,200 children had been given such help. Of these 4,200 children, 57 per cent came from FARC, 15 per cent from ELN, 24 per cent from former self-defence groups, and the rest from other rebel forces and criminal groups.143 A special court with the assistance of an expert from ICBF handles cases of children under the age of 18 years who have committed crimes not connected to an armed group. The Office of the Attorney-General has set up a specialized unit for child and adolescent offenders and the Justice and Peace Act has established specialized judges and courts for minors, and within these systems the minors were considered to be offenders and not criminals, where the focus is to restore the rights of the offender and where “only as a last resort” are sanctions to be applied.144 The Justice and Peace Act confirms the principle of opportunity in cases concerning minors, where alternative measures instead of prosecution are preferred. The Attorney-General was to collect evidence to validate the facts in those cases where confessions had been made, an often time-consuming task. The government noted that criminal gangs engaged in drug trafficking in Colombia have especially targeted children of African descent to work for them.145 The Committee noted that as of June 2010 the recruitment of children was “still on the rise”, and questioned the government’s prevention strategy in especially the 120 municipalities.146 The government responded that the strategy which emphasized prevention over sanctions would require a cultural shift that would take a long time to achieve, but that the unification of state efforts had so 142 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 31 143 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 31 144 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 35 145 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 24 146 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 32

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far been the most successful outcome of this strategy.147 Furthermore, in order to prevent children from becoming recruited by illegal armed groups, the NGO Infancia and Desarollo (Childhood and Development) identifies vulnerable children in at-risk areas and then tries to find places for the children at boarding schools or other institutions in areas where they are safe from recruitment.148 To further the government’s work to prevent the recruitment of children by illegal armed groups, the government had in three municipalities strengthened the capacity of the local authorities to deal with this issue. Furthermore, the Colombian Supreme Court “had issued a ruling ordering the State to take action to stop the recruitment of displaced people by armed groups, and the government was mainstreaming a gender perspective into those activities”.149 With regards to the 1612 MRM country task force the UNSRSG-CAAC visited Colombia in May 2008 after having been invited by the government, and as a result of continuous dialogues between the UNSRSG-CAAC and Colombian governmental authorities, Colombia voluntarily agreed to establish a MRM country task force in December 2008.150 The government emphasized that the continuous dialogue had “clearly established” that the government was to give prior express authorization to any type of action that UN agencies or the MRM country task force would undertake with respect to the work of the MRM.151 Furthermore, “[f]ollowing meetings between the Government and the team in the first half of 2009, the first report, covering 2008, had been drafted”, which at that time the

147 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 34 148 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 24 149 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 25 150 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 43 (There were as of June 2010, 23 U.N. agencies working in Colombia, para. 42) 151 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 43

The Legal Protection of Children and Armed Conflict

SC working group on CAAC was reviewing.152 The government said that it had “guaranteed full access for the team members to all areas of the country and to information on the relevant cases on an ongoing basis”.153 A computer hard drive had been stolen from the home of one UNICEF staff member, and UNICEF was a member of the MRM country team, but as of June 2010 this crime had not been solved and the Office of the Attorney-General was conducting investigations regarding this crime.154 In this respect the Committee asked what kind of measures the government had put in place to guarantee the security of the different country task force members to be able to carry out their work.155 The Committee also raised the issue of what the government had done to follow-up on the recommendation by the UN Secretary-General in his report on CAAC in Colombia, S/2009/434, that the protection of children be included in all negotiations that the government has with the illegal armed groups. Colombia has established the Offices of the Family Ombudsman (separate from the Office of the Ombudsman) that is obliged to “uphold and protect the rights of children and adolescents”, and the Family Ombudsman has specific administrative offices that deal with the children that have been involved in illegal armed groups and they are part of the protection system of the state.156 It is the Colombian Family Welfare Institute and the High Council for the Social and Economic Reintegration of Armed Insurgents that form part of the Colombian government’s programme to disengage children from the armed conflict, that is the former child soldiers.157 The programme aims to restore the rights 152

153

154

155

156

157

Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 43 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 43 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 44-45 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 44 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 47 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention

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of children and to be able to provide psychosocial support so that the children are able to return to their family environment and local community and be reintegrated. The programme allowed for psychosocial support to be continuously provided to the children even as they reached 18 years of age in order to improve their skills, that they be reintegrated into society and that their autonomy be strengthened.158 This program was to be monitored by civil society and international organizations such as IOM and UNICEF. Only five individuals in the Office of the President have access to data on demobilized children gathered under programmes for identifying them, in order to protect the information compiled.159 The Committee had asked how children could be removed from the illegal armed groups and how contacts with these groups were conducted, and in this respect the Colombian government “had made it clear that its door was always open”, but that “the illegal armed groups had indicated that they were not interested”.160 Mr. Pearl, a representative of the government of Colombia, said that he had signed a letter to FARC where the government had proposed a formal agreement with FARC pertaining to the children illegally recruited by the group, however there were indications that FARC was not interested in such an agreement.161 Mr. Pearl stated that “the Government would nevertheless keep all communication channels open with respect to humanitarian issues and would persist in its pursuit of the demobilization of all children”.162

on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 54 158 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 54 159 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 56 160 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 56 161 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 56 162 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 56

The Legal Protection of Children and Armed Conflict

10.1.2.1.3.1. Education in Colombia Special troops called “campesino soldiers” protect some schools in Colombia in isolated areas in order “to maintain territorial control”, and the government has ordered these special troops to go to these schools because the civilian population in these areas has requested that the government should not abandon these schools and areas.163 The Ministry of Education had according to specific legislation the right to authorize military schools, which were not providing military instruction, but instead were to give the opportunity for students “to complete their compulsory military service“ during the last two years of their studies.164 The mayor, the Office of the Municipal Attorney and the commander of a specific military district were to control the process of recruitment so that “no minors were recruited”, and in a case where a minor had been recruited, the minor was to through the Office of the Municipal Attorney be transferred to the Colombian Family Welfare Institute.165 10.2.

Children Require Special Protection in Armed Conflict and Emergencies Yes, children are facing problems, but so is the whole population.166

So why should child protection be of specific concern in the midst of a sea of needs in a conflict country? The simple reason is that children merit special protection because they are considered to be the most vulnerable in our societies. The Geneva Declaration of the Rights of the Child of 1924 recognized that children must be given special protection measures because of their special status as

163

Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 53 164 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 53 165 Committee on the Rights of the Child, Summary record of the 1528th (Chamber A) meeting, Initial report of Colombia under the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, CRC/C/ SR.1528, 22 June, 2010, para. 53 166 A diplomat expressing his views on child protection which reflects the view of many of the foreign diplomatic missions in Kinshasa DRC, in Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Conflict, the Democratic Republic of Congo, January 2008, p. 9

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children.167 The principle that children are entitled to a special protection status is reaffirmed in the Declaration of Human Rights of 1948 which states in its Article 25(2): “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” It is a well-recognized principle today that children’s unique vulnerability due to both physical and mental immaturity requires extra protection. The Declaration of the Rights of the Child of 1959 stated this principle: “Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, and this principle is referred to in the UN Convention on the Rights of the Child.168 The CRC has strongly reaffirmed this principle by referring to several legal documents and stating the following: Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognised in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in Articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in Article 10) and in the statutes and relevant instruments of specialised agencies and international organisations concerned with the welfare of children.169

The CRC makes reference in its preamble to the fact that there are children in all countries in the world who are living in exceptionally difficult conditions and that these children are in need of special consideration. In situations of war or natural disasters the Geneva Declaration of the Rights of the Child of 1924 specifically stipulates in its paragraph III that “[t]he child must be the first to receive relief in times of distress”.170 This principle is followed up by the Declaration of the Rights of the Child of 1959 which first states in its Principle 2 that “[t]he child shall enjoy special protection”, and in its Principle 167 Geneva Declaration of the Rights of the Child, Adopted 26 September, 1924 by the League of Nations; By the present Declaration of the Rights of the Child, commonly known as “Declaration of Geneva”. 168 See the Declaration of the Rights of the Child, Proclaimed by General Assembly resolution 1386 (xiv) of 20 November 1959, the Preamble: Whereas the child, by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection before as well as after birth; and see the Preamble of the Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49. 169 See Preamble to the Convention on the Rights of the Child 1989 (CRC) 170 Geneva Declaration of the Rights of the Child, Adopted 26 September, 1924 by the League of Nations; By the present Declaration of the Rights of the Child

The Legal Protection of Children and Armed Conflict

8 that “[t]he child shall in all circumstances be among the first to receive protection and relief.” The 1959 Declaration thus provides that children shall be “among the first to receive” assistance, which Van Bueren has considered to be a more realistic approach compared to the 1924 Declaration which states that they “must be the first” to receive such assistance.171 Just like the League of Nations had adopted unanimously the Declaration of the Rights of the Child in 1924, there were no abstentions to the Declaration of the Child of 1959 and as a result it was also adopted unanimously by the General Assembly.172 Interestingly Afghanistan introduced an additional resolution in which governments were asked to “as widely as possible” recognize and strive for the observance of the principles in the Declaration and have it publicized, which was unanimously adopted by the General Assembly as well.173 The Declaration of the Rights of the Child of 1959 clearly stated in its Principle 1 that “[e]very child without any exception whatsoever” was to be entitled to the rights in the Declaration without any discrimination.174 The best interests of the child principle was established for the first time in the Declaration of the Rights of the Child of 1959, and it was in its Principles 2 and 7 that the best interests of the child principle was expressed:175 Principle 2: The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. Principle 7: The child is entitled to receive education, which shall be free and compulsory, at least in the elementary stages. He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to

171 172 173 174

175

Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 11 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 10: There were abstentions to the 1948 Universal Declaration of Human Rights Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 10: GA Res 1387 XIV Declaration of the Rights of the Child, Proclaimed by General Assembly resolution 1386 (xiv) of 20 November 1959, “Principle 1: The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, whether of himself or of his family.” Popovski, V., Children in armed confl ict: Law and practice of the United Nations, Chapter 3 in Arts. K and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, 2006, p. 40; and The Declaration of the Rights of the Child of 1959.

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develop his abilities, his individual judgement, and his sense of moral and social responsibility, and to become a useful member of society. The best interests of the child shall be the guiding principle of those responsible for his education and guidance; that responsibility lies in the first place with his parents. The child shall have full opportunity for play and recreation, which should be directed to the same purposes as education; society and the public authorities shall endeavour to promote the enjoyment of this right.

The notion that children needed to have special legal protection was beginning to develop in the beginning of the 1900s, when the first international instrument with regards to the protection of children was adopted by the International Labour Conference in 1919, the Minimum Age (Industry) Convention.176 That children needed special protection separated from adults was further confirmed in 1924 when the Assembly of the League of Nations unanimously adopted the Geneva Declaration of the Rights of the Child of 1924, which reads in full: By the present Declaration of the Rights of the Child commonly known as the ‘Declaration of Geneva’, men and women of all nations, recognising that mankind owes to the child the best it has to give, declare and accept it as their duty that, beyond and above all considerations of race, nationality or creed: I. The child must be given the means requisite for its normal development, both materially and spiritually. II. The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succoured. III. The child must be the first to receive relief in times of distress. IV. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation. V. The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men.

As Van Bueren has stated “[t]he text of the Declaration aims at simplicity, and is capable of being applied everywhere and at all times”.177 The 1924 Declaration especially focused on children’s economic, psychological and social needs, that is on child welfare and not on the rights of the child.178 The preamble does not 176 Van Bueren, G., The International Law on the Rights of the Child, 1998, Note 55 for Chapter 1, p. 27 177 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7 178 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7

The Legal Protection of Children and Armed Conflict

put the responsibility for the welfare of the child onto the States, instead it is the duty of “men and women of all nations”, the adults, to care for the children.179 While the President of the Assembly of the League of Nations, Giuseppe Motta, stipulated when the Assembly unanimously approved the Declaration of the Rights of the Child that it became “the Children’s Charter of the League”, the only connection that the Declaration made to governments was that the governments pay attention to its principles: “The Assembly endorses the declaration of the rights of the child commonly known as the Declaration of Geneva and invites the States Members of the League to be guided by its principles in the work of child welfare.”180 The member states of the League of Nations did not intend that the Declaration would be legally binding upon them, which needs to be seen in the context that during that time the responsibility for children was considered to be on their parents and other adults in the private sphere.181 At the time children were not considered to be holders of rights, but instead as recipients of treatment by adults, and as such the children were not considered as subjects of international law, but as objects.182 There had been some discussions at the time the four Geneva Conventions were drafted to have a fift h convention established specifically focused on children, but this did not come about which has left children invisible to states and different groups engaged in armed conflict and not recognized as a specific group in need of special protection.183 Instead their needs have been viewed as part of the needs of the general civilian population. However, the reason as to why there was not such a convention established was not because of lack of knowledge about the rights of children, as the concept of children’s rights had been discussed, as noted above, both internationally and regionally before the adoption of the CRC in 1989, both in general terms as well as specifically for children affected by armed conflict.184 Issues such as the need to reach consensus on the four Geneva conventions, a certain level of indifference to the needs and rights of children, together with the fact that there was no government, delegate or agency that was driving this issue were among the reasons as to why there was not a fift h

179 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7 180 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7 181 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7 182 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 7-8 183 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 12 184 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 12-13

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convention created.185 Hamilton and El-Haj set up a list of the documents addressing children’s rights early on:186 – – – – – – – – – – –

The International Convention for the Suppression of the White Slave Traffic (1910) The ILO Conventions Fixing the Minimum Age For Admission of Children to Industrial Employment (1919) The ILO Convention Concerning the Night Work of Young Persons Employed in Industry (1919) The International Convention for the Suppression of the Traffic in Women and Children (1922) The Children’s Charter of the International Council of Women (1922) The Declaration of Geneva (1924) The Children’s Charter of President Hoover’s White House Conference on Child Health and Protection (1930) The Bill of Rights for the Handicapped Child (1930) A Children’s Charter in Wartime (1942) The Children’s Charter for the Post-war World (1942) A Declaration of Opportunities for Children (1942)

The contributions of the Declaration on the Rights of the Child of 1924 have been that it was the first internationally created document stating that children are in need of specific rights and protection separate from adults, and in this way it laid the groundwork as a future standard setter of the rights of children.187 Furthermore by its existence it has not been possible to claim that the concept of child rights “is a new development in international human rights law”, as with the Declaration it was the first time an inter-governmental organization adopted a declaration on human rights at all.188 As Van Bueren has explained “[t]he adoption of international standards protecting the rights of the child preceded the adoption of international standards codifying universally recognised human rights”.189 Another issue is that the Declaration showed that it was not political and civil rights that were the main focus, but instead economic and social rights, and that economic, social and cultural rights as a second generation of rights and civil and political rights as the first generation of rights is not historically

185 186 187 188 189

Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p.14-15 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 13 Van Bueren, G., The International Law on the Rights of the Child,1998, p. 8 Van Bueren, G., The International Law on the Rights of the Child,1998, p. 6 and 8 Van Bueren, G., The International Law on the Rights of the Child,1998, p. 8

The Legal Protection of Children and Armed Conflict

correct.190 Also, with the adoption of the Declaration it was the start of bringing awareness to states that when addressing the welfare of children this work needs to be linked to the protection of children’s rights, which in addition was the first time that there was recognition at the international level of this linkage.191 While the 1959 Declaration of the Rights of the Child was not legally binding on the member states of the UN, this Declaration was still a start (if modest) to consider children as subjects of international human rights, among other things reflected in that the Declaration adopted “the language of entitlement” when compared to the 1924 Declaration of the Rights of the Child.192 The thinking surrounding the concept of the rights of the child was much developed by the 1959 Declaration with its ten principles, which was a significant contribution even though it was not a legally binding document.193 That children require special protection and care has also been recognized in regional human rights treaties, such as the African Charter of the Rights and Welfare of Children and the Inter-American Convention on Human Rights. The African Charter of the Rights and Welfare of Children, which entered into force 1999, recognizes that because of the physical and mental immaturity of the children they merit special safeguards and care.194 As it is stipulated in the preamble of the Charter “the child occupies a unique and privileged position in the African society and that for the full and harmonious development of his personality, the child should grow up in a family environment in an atmosphere of happiness, love and understanding”. The special circumstances that the children in Africa grow up in are recognized in the Charter and they include their socioeconomic situation, their cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger. The African Charter on the Rights and Welfare of the Child more precisely stipulates: “Noting with concern that the situation of most African children, remains critical due to the unique factors of their socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger, and on account of the child’s physical and mental immaturity he/she needs special safeguards and care.”195 The African Charter also further states that a child “due to his physical and mental development requires particular care with regard to health, physical, mental, moral and social development, and requires legal

190 Van Bueren, G., The International Law on the Rights of the Child,1998, p. 8 191 Van Bueren, G., The International Law on the Rights of the Child,1998, p. 8 192 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 12, Van Bueren refers to the European Convention on Human Rights that entered into force 1953. 193 Van Bueren, G., The International Law on the Rights of the Child, 1998, p. 12 194 See Preamble to the African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999. 195 See Preamble to the African Charter on the Rights and Welfare of the Child

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protection in conditions of freedom, dignity and security”.196 While the InterAmerican Human Rights system does not have a treaty specifically on children the Inter-American Convention on Human Rights, which entered into force in 1978, has a provision on children in its Article 19 on the Rights of the Child that states that “every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society and the state”. In Article 27 of the Inter-American Convention it is specifically stated that in time of war, public danger or other emergency the states parties cannot derogate from Article 19.197 The Inter-American Court on Human Rights has developed groundbreaking jurisprudence specifically on children affected by armed conflict and held in the Gómez Paquiyauri Brothers case that governments have an obligation to protect children from being exposed to human rights violations, also in times of armed conflict.198 At the 2005 World Summit held at the United Nations, all the heads of state and government adopted the 2005 World Summit Outcome resolution reaffirming their commitment to the promotion and protection of the rights and welfare of children affected by armed conflicts.199 The resolution especially referred to and welcomed the adoption of Security Council resolution 1612 which had been adopted two months before the Summit. The heads of state and government 196 See Preamble to the African Charter on the Rights and Welfare of the Child 197 The American Convention on Human Rights, Article 27. Suspension of Guarantees: 1.

2.

3.

In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.

198 Feria Tinta, M., The landmark rulings of the Inter-American Court of Human Rights on the Rights of the Child, 2008, p. 6; See further on the Inter-American Human Rights system and children in Chapter 5. 199 United Nations, General Assembly, Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, A/RES/60/1, 24 October, 2005, para. 117

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called upon the UN member states to ratify the Convention on the Rights of the Child and the Optional Protocols to the CRC. 10.2.1.

The Right of a Child to Receive a Birth Registration

One of the major obstacles for children to attain their human rights in practice, such as receiving an education or access health care, is that so many children around the world are not being registered at birth, and furthermore as such they do not possess their own right to legal personality or juridical personality. All children have the right to be respected as persons in their own right before the law. UNICEF reported that 51 million children who were born in 2007 were not registered at birth, of which close to half were born in South Asia.200 Furthermore UNICEF reported that in 2007 of all children born in sub-Saharan Africa and South Asia about two out of three had not been registered at birth, and that children from the poorest households were twice as likely not to be registered compared to children coming from the richest households and that boys and girls are equally likely not to be registered.201 The CRC in Article 7 clearly states that children are to be registered at birth: 1.

2.

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

The CRC Committee has stated in its General Comment No. 7 from 2005 on “Implementing child rights in early childhood” that all children need to be respected as persons in their own right, and that “all comprehensive services for early childhood begin at birth”.202 The CRC Committee stated in the Comment that for states to ensure the rights of the child to survival, development and access to quality services according to Article 6 of the CRC it is recommended that “all necessary measures” should be taken by the states parties to register all children at birth.203 Here the Committee recommended that “a universal, well-managed 200 UNICEF, Progress for Children, Number 8, September 2009, p. 5, www.unicef.org/ progress for children 201 UNICEF, Progress for Children, Number 8, September 2009, p. 5-6, www.unicef. org/progress for children 202 CRC Committee, General Comment No. 7. (2005), Implementing Child Rights in Early Childhood, UN Doc. CRC/C/GC/7, 20 September 2006, para. 25 203 CRC Committee, General Comment No. 7. (2005), Implementing Child Rights in Early Childhood, UN Doc. CRC/C/GC/7, 20 September 2006, para. 25

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registration system” be established that would be accessible to all, free of charge, flexible and responsive to the circumstances of families where mobile registration units could be used.204 The Committee also underlined that “all children should be registered at birth, without discrimination of any kind (art. 2)”. Importantly considering that numerous children are not registered at birth, the Committee reminded the states parties to assist in making it possible to have late registration of birth, as well as “ensuring that children who have not been registered have equal access to health care protection, education and other social services”.205 However, the Committee did not refer to Article 7 of the CRC in this Comment, nor did the Committee include the right to a name and the right to a nationality in its measures that would guarantee the rights of children in early childhood, which resulted in a need to clarify the scope of the Article.206 The right to a name was for the first time included in a treaty in Principle 3 of the Declaration of the Rights of the Child of 1959 (“The child shall be entitled from his birth to a name and a nationality”), and thereafter this right became a legally binding right with Article 24 in the International Covenant on Civil and Political Rights and with Article 7 in the CRC.207 Article 24 of the ICCPR reads as follows: 1.

2. 3.

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. Every child shall be registered immediately after birth and shall have a name. Every child has the right to acquire a nationality.

It is important to note that Article 24 of the ICCPR is a derogable right.208 It has been noted by the UN Human Rights Committee to the ICCPR that birth registration helps to prevent all forms of abduction, sale and trafficking in children.209 Furthermore, in this context the UN Human Rights Committee noted in 204 CRC Committee, General Comment No. 7. (2005), Implementing Child Rights in Early Childhood, UN Doc. CRC/C/GC/7, 20 September 2006, para. 25 205 CRC Committee, General Comment No. 7. (2005), Implementing Child Rights in Early Childhood, UN Doc. CRC/C/GC/7, 20 September 2006, para. 25 206 Ziemele, I., A Commentary on the United Nations Convention on the Rights of the Child, Article 7, The Right to Birth Registration, Name and Nationality and the Right to Know and Be Cared for by Parents, 2007, p. 1 207 Van Bueren, G., The International Law on the Rights of the Child, Save the Children,1998, p. 117 208 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 118 209 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 118

The Legal Protection of Children and Armed Conflict

its General Comment 17 of 1989 that the obligation of registering a child at birth was connected to the special measures of protection that a child has a right to and that “it is designed to promote recognition of the child’s legal personality”.210 At the time when Article 24 was drafted the issue of the link between birth registration and nationality was much discussed, and the states could not come to an agreement, and instead they separated the right to be registered at birth from the right to nationality, without linking the two.211 At first the right to be registered at birth had not been part of the original draft ing proposal (it had included a right to a name and nationality), however because of much debate over the right to nationality another proposal that included birth registration was put forward.212 The link between birth registration and the right to nationality continues to be a challenging issue, and some countries like Sweden do not give citizenship automatically to children who are born in the country while the US does. Currently (spring 2011) in the US voices have been raised to not give US citizenship to children who are born in the US to parents who are illegal immigrants. It shows that what many considered to be such a fundamental right, cannot be taken for granted. Article 8 of the CRC on the right of the child to preserve his or her identity is very important in the context of abductions, disappearances and trafficking of children. With the adoption of Article 8 of the CRC “for the first time in international law children are entitled to protection by the state against unlawful interference with their identity and illegal deprivation of it. The issue that remains to be decided is precisely what constitutes unlawful interference or illegal deprivation of a child’s identity.”213 In this context it is also important to note that “[b]irth registration is one of the most effective methods to protect the identity of a child”.214 Article 8 states: 1.

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.

210 Ziemele, I., A Commentary on the United Nations Convention on the Rights of the Child, Article 7, The Right to Birth Registration, Name and Nationality and the Right to Know and Be Cared for by Parents, 2007, p. 8 211 Ziemele, I., A Commentary on the United Nations Convention on the Rights of the Child, Article 7, The Right to Birth Registration, Name and Nationality and the Right to Know and Be Cared for by Parents, 2007, p. 8 212 Ziemele, I., A Commentary on the United Nations Convention on the Rights of the Child, Article 7, The Right to Birth Registration, Name and Nationality and the Right to Know and Be Cared for by Parents, 2007, p. 8 213 Van Bueren, G., The International Law on the Rights of the Child, Save the Children,1998, p. 117 214 Van Bueren, G., The International Law on the Rights of the Child, Save the Children,1998, p. 118

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2.

Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

The provision of the right of the child to preserve his or her identity was introduced by Argentina because of the experiences that the country had gone through during 1975 and 1983 when the “Dirty War” was going on.215 During this time many children were abducted, taken from their mothers at birth, disappeared, killed and/or illegally adopted by military and police couples which was a tragedy for all the families involved, and these experiences led the then new government of Argentina after the Junta to introduce this provision in order to prevent these kinds of atrocities from taking place again.216 Argentina also wanted the state to have the responsibility to assist and protect children whose identity in full or part had been compromised, in order to be able to have the identity of the child “speedily” restored. Some governments were not in favour of having this provision in the CRC, however in the end the provision was established but the obligation of states is not as strong as it only stipulates that “States Parties undertake to respect the right” and furthermore for instance there is no definition of “identity” in the CRC.217 The Grandmothers of Plaza de Mayo, the Abuelas de Plaza de Mayo, have spent many years since 1977 (when the group was formed) to trace and identify all the children they can possibly find.218 These efforts are still on-going and since many of the children that were abducted and then adopted have become adults when they have had their identity restored, this speaks to the need to have this right restored as quickly as possible. 10.3.

Children and International Humanitarian Law and Human Rights Law

All the basic principles in international humanitarian law (IHL) apply equally to children as to adults even if this body of law does not specifically mention children, most of which are considered to be customary law today because of their

215

Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 118-119 216 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 118-119 217 Van Bueren, G., The International Law on the Rights of the Child, Save the Children, 1998, p. 119 218 Van Bueren, G., The International Law on the Rights of the Child, Save the Children,1998, p. 119; (the author met representatives of the Grandmothers in the 1980s)

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general acceptance.219 Some of the most basic principles of international humanitarian law include that:220 –

–

–

belligerents are limited by IHL in their choice of methods or means of conducting armed conflict (see eg 1977 GPI, Article 35(1) and 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, … Article 22) they are particularly prohibited from using such means and methods as will cause ‘superfluous injury or unnecessary suffering’ either to combatants or civilians (see eg 1977 GP I, Article 35(2)).

combatants should use only the minimum degree of force that is both necessary and lawful in order to achieve their mission, in accordance with, inter alia, the principles of military necessity and humanity.

As a result of these principles and laws some methods of warfare are to be limited, and both civilians and combatants should find some level of protection from them.221 How to balance unnecessary suffering and humanitarian considerations with military necessity has traditionally been one of the most difficult challenges to address in international humanitarian law.222 The “principle of proportionality” comes into play here and was for the first time stated in Additional Protocol I (1977) in treaty form and is today accepted as a general customary principle which all parties to an armed conflict are obliged to adhere to.223 The proportionality principle means that “civilian casualties ought to be proportionate to the concrete and direct military advantage to be gained by the attack”.224 But as Hamilton and El-Haj have stipulated, “in practice, it rarely forbids the attacking of a legitimate military objective; what it does require is that the military utilise the strategy which is most likely to result in the least civilian losses.”225 219 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 23 220 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 23-24 221 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 23 222 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 24 223 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 24, 264; See also Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 19 224 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 19 225 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 19

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For instance the proportionality principle is included in Additional Protocol I (1977) in its Article 51(5)(b), which defines the types of attacks considered to be indiscriminate as “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.226 In this context it must be underlined, as Kuper states, that “there are of course certain IHL rules that are absolute and do not involve proportionality, eg the prohibitions against: direct targeting of civilians; the use of certain weapons, and the torture or other gratuis ill-treatment of detainees and prisoners (whether military or civilian)”.227 Kuper advocates that military training of soldiers should include teaching them about these basic IHL principles including unnecessary suffering, military necessity and proportionality, especially with regards to children and that all basic rules under IHL on protection also in full are applicable to children.228 This includes addressing the fact that these principles are somewhat “vague and subjective”, and the training should be aimed at helping clarifying them. With regards to child civilians international humanitarian law provides protection to them “a) as members of the civilian population generally; b) as children, due to their particular vulnerability within the civilian population, and c) as child civilians in specific categories (e.g. enemy aliens) if they qualify as such”.229 Kuper specifically identifies certain rules that concern the protection of child civilians in general in armed conflict: (1) “Children in armed conflict are entitled to special treatment and must be provided with the care and aid they require.”230 This principle is for instance included in Additional Protocol I (1977) Article 77(1), to a certain degree in Additional Protocol II (1977) Article 4(3), and integrated into CRC Article 38. (2) “Children should not be ill-treated, and this includes, inter alia, a prohibition on indecent assault (ie any assault of a sexual nature, including the

226 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 264; Additional Protocol I (1977) 227 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 24 228 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 24 229 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 264-265 230 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265

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use of child prostitutes.”231 This principle can be found in for instance in Additional Protocol I (1977) Article 77(1), Additional Protocol II (1977) Article 4(3), CRC Articles 6, 19, 34, 37(a) and 38(1) and (4), and the 2002 Optional Protocol on the Sale of Children. (3) With regards to civilians in general, which also includes children, “the fundamental principle in IHL is that civilians in the power of a party to the conflict are to be respected and protected in all circumstances, and treated humanely”.232 See for instance Article 27 in the Fourth Geneva Convention of 1949. (4) Another principle entails that “[m]easures should also be taken to minimise harm to civilians in or near the theatre of military operations”.233 E.g. Articles 48 and 51 of the Additional Protocol I (1977). With regards to common Article 3 Kuper importantly states: “Common Article 3 applies explicitly to situations where the confl ict takes place in the territory of one State Party to the 1949 GCs (ie non-international armed conflicts), but it applies implicitly to all situations of armed conflict as a minimum standard.”234 However, common Article 3 is not applicable under a certain threshold, but it is not clear where that threshold begins.235 Human rights law applies under this threshold (while according to certain human rights treaties derogation from some human rights provisions is acceptable), and in situations where an armed conflict situation has not been acknowledged by a government.236 In Kuper’s view common Article 3 to the Geneva Conventions provides “[a] concise guide to and summary of fundamental IHL rules regarding the treatment of civilians and other non-combatants” and here “persons taking no active part in the hostilities” are to be treated humanely, and common Article 3 forbids with regards to them “‘at any time and in any place whatsoever … :a) violence to life and person …, b) taking of hostages …, c) outrages upon personal dignity

231 232 233 234 235 236

Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 31 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 31

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…, d) the passing of sentences and the carrying out of executions’ without due process”.237 Furthermore the Fourth Geneva Convention of 1949 Article 23, the Optional Protocol I (1977) Article 70(1), and the CRC of 1989 Articles 24 and 38(4) provide that “[c]hildren, expectant mothers and maternity cases should be granted priority in receiving relief consignments. Free passage of essential foods, clothing and tonics for them must also be granted, subject to certain security conditions.”238 There are other provisions that will not be included here such as the setting up of zones to protect civilians including children from the hostilities, found in for instance the Fourth Geneva Convention and Additional Protocol I (1977).239 There are other detailed rules in additional sources concerning five particular categories of child victims including for “children in occupied territory generally, children who are deprived of their liberty (detained or interned), including in occupied territory, children who are orphaned or separated from their parents, children who are considered enemy aliens, and expectant mothers, maternity cases and babies”.240 10.3.1.

Human Rights Law

As has been noted “[a] guiding human rights norm regarding children is that they are, as children, entitled to special treatment”, and the term “special treatment” means that children have the right to receive additional assistance and protection in their capacity of being children.241 All the most important international human rights instruments include this right, while the terminology differs in each document.242 For instance Article 24(1) in the 1966 ICCPR stipulates that “[e]very child shall have, without any discrimination … the right to such measures of protection as are required by his status has a minor, on the part of his family, society and the State”, and this principle is included in instruments such as Article 25(2) of the Universal Declaration of Human Rights, Article 10(3) of

237 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 265 238 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 266 239 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 266 240 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 266-267 241 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25 242 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25

The Legal Protection of Children and Armed Conflict

the 1966 ICESCR, and the African and Inter-American human rights systems.243 In addition some of the general principles in many of these instruments are applicable to children also in armed conflict such as the right to family life (see for instance Article 23 of the 1966 ICCPR and Article 10(1) of the 1966 ICESCR), to the enjoyment of health (see for instance Article 12 of the 1966 ICESCR), and to education (see for instance Article 13 of the 1966 ICESCR).244 Furthermore Kuper stipulates that “[t]he entire 1989 CRC can be seen as a detailed expression of the principle that children are entitled to special care and protection”.245 Here in this context Kuper highlights four basic principles that have been integrated into the Convention regarding the protection of children, “the four P’s”, and they include the protection of children from neglect, exploitation and discrimination; the prevention of harm to children; the provision of assistance for their basic needs; and their participation in decisions in matters concerning them.246 The principle that all children are entitled to special care and protection should be considered as “an emerging international customary norm” as a result of that it has become widely accepted today as several legally binding instruments like the CRC that many states have ratified include this principle.247 This principle is considered to be “a non-derogable obligation that applies both in times of peace and armed conflict” for the states parties that have ratified treaties such as the CRC that include this principle.248 In the context of the changing nature of contemporary conflicts it is important to note that Article 38 “is applicable to all types of armed conflict”.249 10.3.1.1.

The Right to Life

The right to life principle (e.g. Article 6 of the CRC) is one of the most important principles to be observed, also in armed conflict, and is applicable to all persons,

243 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25 244 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25 245 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25 246 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25 247 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25-26 248 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 25-26 249 Ang, F., “Article 38. Children in Armed Conflicts”, in Alen, A., Vande Lanotte, E., Verhellen,. F., Ang, E. Berghmans and M. Verheyde, Eds., A Commentary on the United Nations Convention on the Rights of the Child, 2007, p. 23

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adults and children alike, and it “can be more accurately described as the right not to be arbitrarily deprived of life”.250 Arbitrary deprivation of life is prohibited in all armed conflict situations, and furthermore including in situations of conflict and violence where IHL might not be applicable “human rights provisions continue to apply”.251 This means that law protects the human right to life principle in all circumstances such as in civil strife situations.252 It is to be noted here that international humanitarian law expresses this principle in a different way using terminology whether it is “proportionate” to deprive life in a particular armed conflict situation.253 Kuper states that “[u]nder the combined provisions of human rights law and IHL, all people, child or adult, are not to be arbitrarily deprived of life in any situation, including armed conflict, whether they are civilians or combatants”.254 In this context it needs to be noted that deprivation of life is lawful in situations of armed conflict as long as the deprivation of life is not arbitrary or otherwise unlawful. As has been noted international humanitarian law and human rights law use different language to express some of the same principles, such as that according to international humanitarian law the deprivation of life is prohibited if it is “disproportionate” or otherwise unlawful, rather than “arbitrary” as under human rights law.255 The human rights principle of the “right to life” is incorporated in Article 3 of the 1948 Universal Declaration of Human Rights, Article 6 of the 1966 ICCPR and its Optional Protocol to abolish the death penalty, Article 6 of the 1989 CRC, and in the most important regional human rights instruments.256 The prohibition of genocide, which is the killing and harming of members of a specific group, or “forcibly transferring children of the group to another group” with the intention to destroy in whole or in part that group, such as is stipulated in the

250 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 251 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 252 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 253 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 254 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 255 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 264 256 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26

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1948 Genocide Convention, has been reconfirmed in the Statute of the ICTY, the Statute of the ICTR, and the 1998 Rome Statute of the ICC.257 10.3.1.2.

The Prohibition of Torture Another basic precept relevant to the treatment of children as well as adults in all situations including armed conflict, is the absolute human rights prohibition on torture and other cruel, inhuman or degrading treatment or punishment. This prohibition is also found in IHL.258

The prohibition of torture is included in human rights law in Article 7 of the 1966 ICCPR, Article 5 of 1948 Universal Declaration of Human Rights, the 1984 Convention Against Torture, and the main regional human rights treaties.259 Again, in IHL the prohibition of torture is formulated differently compared with human rights law as for instance persons are to be treated “humanely”, such as in common Article 3 of the 1949 Geneva Conventions, and Article 27 of the 1949 Fourth Geneva Convention, and not be subjected to treatment that amounts to torture or other degrading or cruel treatment that is “not strictly necessitated by the requirements of the conflict situation”.260 For children the CRC in its Article 37(a) expresses the prohibition of torture principle, as it states that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” Three basic human rights principles are of utmost importance regarding children in situations of armed conflict and they are “1) that children are entitled to special treatment, 2) that arbitrary deprivation of their lives is forbidden, and 3) that their torture and other inhumane treatment is prohibited”, and the three most fundamental international humanitarian law principles are military necessity, humanity and proportionality.261 Kuper has underlined that these norms are to be applied “in all conflict situations of whatever intensity”, applicable to adults

257 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26 258 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 26-27, See for instance UNCRC Article 37(a). 259 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 27 260 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 27 261 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 27

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and children alike, but where children also have the right to special treatment under the law applicable to the specific situation.262 In order to adapt to the new changing environment of conflicts where most of the current conflicts are internal in character, the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda have in their jurisprudence on IHL included non-governmental forces.263 For instance in the ICTY Tadíc case, the Prosecutor v. Dusko Tadíc of 1995, the Court “ruled, inter alia, that participants in non-international armed conflict can be liable for committing ‘war crimes’ under customary international law”.264 Furthermore, the Statute of the ICC in its Article 8(2) on war crimes adds to its list of war crimes with regards to armed conflict not of an international character in Article 8(2) (c) the “serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949” and in its Article 8(2)(e) “other serious violations of the laws and customs applicable in armed conflicts not of an international character”.265 A high threshold has been established in Articles 8(2)(d) and 8(2)(f) for the paragraphs 2(c) and 2(e) to be applicable in a situation of an internal conflict as it is stated that these paragraphs are applicable “to armed conflicts not of an international character and thus [do] not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature”. Furthermore paragraph (f) states with regards to “other serious violations of the laws and customs applicable in armed conflicts not of an international character” in Article 8(2)(e) that this paragraph “applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. 10.3.2.

International Humanitarian Law

10.3.2.1.

The Fourth Geneva Convention as It Relates to Children

As Hamilton and El-Haj have observed “[n]either humanitarian law (including the Geneva Conventions of 1949 and the Additional Protocols to the Geneva Conventions of 1977) nor human rights law has managed, as yet, to reduce the suffering and involvement of children in armed conflict”.266 While this statement 262 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 27 263 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, footnote 8, p. 12 264 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, footnote 8, p. 12 265 The Rome Statute of the International Criminal Court, Article 8, War Crimes 266 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 1

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was written in 1997, it unfortunately still stands true. International humanitarian law, which the four Geneva Conventions and the Additional Protocols I and II of 1977 form part of, is the law of armed conflict, and the conduct of war is regulated by it.267 Furthermore international humanitarian law consists of the “Law of Geneva” and the “Law of the Hague”, and the protection of the “victims of war” who are “in the hands of a party to the conflict” is governed by the Law of Geneva, while the methods and means of warfare are governed by the Law of the Hague.268 The two Additional Protocols are partly contained in the Law of the Hague as they in addition include advances connected to the means and methods of warfare.269 Today the four Geneva Conventions have been universally ratified by all countries in the world.270 In terms of the UN MRM priority violation “killing and maiming of children”, it needs to be taken into account that the conduct of hostilities is not covered by the Fourth Geneva Convention.271 The Fourth Geneva Convention states in Part I in its Article 4 that:272 Persons protected by the Convention are those who, at any given moment and in any manner whatsoever, find themselves, in the case of a conflict or occupation, in the hands of a Party to the confl ict or Occupying Party of which they are not nationals.

In the context of the scope of coverage, Pictet explained that the main objective of the Fourth Geneva Convention was “to protect a strictly defined category of civilians from arbitrary action on the part of the enemy, and not from the dangers due to military operations themselves. Anything tending to provide such protection was systematically removed from the Convention.”273 He continued that the Convention was “above all concerned with the protection of civilians 267 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 5 268 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 6 269 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 6 270 ICRC, http://www.icrc.org/eng/resources/documents/.... 271 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10 272 The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, Entry into force, 21 October 1950 273 Pictet, Jean, S., Director for General Affairs of the International Committee if the Red Cross, Ed., Commentary, IV Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, Geneva, International Committee of the Red Cross, 1958, p. 10; see also Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10

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against arbitrary action by the enemy, and not against the whole series of dangers which threaten them in wartime”.274 Hamilton and El-Haj mean that this function derived from that the Fourth Geneva Convention is part of the Law of Geneva which is the body of law that protects the “victims of war” a special category in need of protection.275 Kalshoven clarifies this function of the Fourth Geneva Convention by stating that it “serves to provide protection for all those who as a consequence of armed conflict, have fallen into the hands of the adversary. The protection envisaged here is, hence not protection against the violence of war itself, but against the arbitrary power which one belligerent party acquires in the course of an armed conflict over persons belonging to the other party.”276 Furthermore, the civilian population is not protected by Part II of the Fourth Geneva Convention from military operations, even as it provides protection “against certain consequences of war”, as it is the Law of the Hague that covers the conduct of hostilities.277 This is the only part of the Fourth Geneva Convention which also covers the own civilian population of a party, even as it provides very little protection.278 In terms of the Fourth Geneva Convention protecting children, Part II of the Convention identifies children as in need of protection in a few articles but in limited ways as being a part of groups of the civilian population in need of special protection, where Article 24 is the only article that explicitly addresses children, however only children who as a result of war have been orphaned or

274 Pictet, Jean, S., Director for General Affairs of the International Committee if the Red Cross, Ed., Commentary, IV Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, Geneva, International Committee of the Red Cross, 1958, p. 10; also Hamilton, C., El-Haj, T. A., Armed Confl ict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10 275 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 6 and 10 276 Kalshoven, F., and Zegveld. L., The Constraints on the Waging of War, An Introduction to International Humanitarian Law, ICRC, March 2001, 4th edition, p. 51; Hamilton, C., El-Haj, T. A. make reference to this section but from the edition of the book in 1987, where Kalshoven uses the term ‘war’, ’in the course of war’, instead of ‘armed conflict’; in Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10 277 The Law of the Hague covers the means and methods of warfare, p. 6; in Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10 and footnote 25, p. 10 278 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10

The Legal Protection of Children and Armed Conflict

separated from their families.279 These articles relating to children are Articles 14, 17, 23 and 24: Article 14: In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties thereto, may establish in their own territory and, if need arises, in occupied areas, hospital and safety zones and localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fi fteen, expectant mothers and mothers of children under seven. … Article 17: The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas. [Evacuation] Article 23: Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fi fteen, expectant mothers and maternity cases. … Article 24: The Parties to the confl ict shall take the necessary measures to ensure that children under fi fteen, who are orphaned or are separated from their families as a result of war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition. …

The civilian population including children is provided considerable protection in Part III of the Fourth Geneva Convention, however this part offers solely protection to “protected persons” who are part of the definition in Article 4 of the Fourth Geneva Convention.280 Article 4 stipulates that “[p]ersons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the

279 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 10-11: The Fourth Geneva Convention has four parts. 280 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 and footnote 29

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conflict or Occupying Power of which they are not nationals …”.281 The protection in Part III that “protected persons” are afforded is provided for in Article 27 which stipulates: Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

The persons to be protected are according to these provisions solely the civilian population in the hands of the enemy, and not a party’s own population, and again the civilian population that is to be protected is not protected from the conduct of hostilities.282 This means that children are not being protected from military operations by the Fourth Geneva Convention.283 Furthermore Hamilton and El-Haj come to the conclusion that from a child rights’ perspective the Fourth Geneva Convention “is inadequate in assuring the protection of children and the promotion of children’s rights as envisaged in the United Nations Convention on the Rights of the Child: it fails to protect every child in his or her status as a child, and very little attention is paid to children’s special needs.”284 While the Fourth Geneva Convention is mainly applicable in international armed conflicts, common Article 3 to the Convention also covers internal armed conflicts, and Hamilton and El-Haj make the case that as a result the Fourth Geneva Convention could still be applied in a limited way to internal armed conflicts, also seen together with the fact that in common Article 3(2) it is clearly 281 The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949; and Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 282 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 283 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 12 284 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 12

The Legal Protection of Children and Armed Conflict

stated that “the Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”.285 They mean that such a view would make possible “for the mechanism of enforcement to regulate non-international conflicts”, as according to Article 146 of the Fourth Geneva Convention the parties have an obligation to suppress all acts contrary to the Convention (other than the grave breaches in Article 147) which includes breaches of common Article 3 when applicable.286 Such breaches of common Article 3 should be prosecuted before the national courts of a state party, according to Hamilton and El-Haj.287 Common Article 3 in its whole reads as follows: Art.3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Person taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.

285 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 and footnote 28, Common Article 3 to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 286 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 and footnote 29 287 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 11 and footnote 29

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An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the confl ict. The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the confl ict.

One concern with the Fourth Geneva Convention as it relates to the protection of children in armed conflict is that children as a group itself in need of special protection are not offered protection by the Convention, as it is only a restricted group of children that are given protection according to the criteria “extreme vulnerability”.288 Another issue is that there is no consistent definition of age nor is “a definition of a child“ thought of in the Convention, as different articles refer to different ages, and that the Convention does not give explicit protection to children over 15 years of age in general.289 As an example only children up to 15 years of age and who have been separated from their parents because of the war are covered by Article 24, children under seven have the right to be with their mothers if they are in a safety zone according to Article 14, a child under the age of 18 cannot be forced to work by the occupying power (Article 51) or be sentenced to death by an occupying power if the crime was committed before the protected person turned 18 years (Article 68) and in Article 76 (regarding detention of protected persons accused of offences in the occupied territory) the term “minor” is being used without any definition as to who a minor is (“Proper regard shall be paid to the special treatment due to minors”).290 This lack of consistency with regards to age within the Convention itself has resulted in that children have been provided with less protection and that it today does not correspond with having 18 as the age when a child reaches maturity.291 During war many children become accidentally separated from their families or other caretakers and Article 24 reflected the fear as well as the experience of the losing of children, and of children who never had returned to their families or relatives and country of origin because of having become separated because of war or because of having been evacuated.292 It needs to be taken into account that the experiences from the Second World War greatly informed the drafting proc288 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 15 and 18 289 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 15 290 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 15-16 291 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 16 292 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 17: The

The Legal Protection of Children and Armed Conflict

ess of the Geneva Conventions. The Article talks about ensuring that a child’s religion and education be facilitated and that education is given by people from a similar tradition, which reflects the wish that the return of evacuated children be facilitated by this provision.293 However the best interests of the child principle is not taken into consideration here, as the main concern is mostly on parental or family rights.294 Article 24 The Parties to the confl ict shall take the necessary measures to ensure that children under fi fteen, who are orphaned or are separated from their families as a result of war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the war with the consent of the Protecting Power… They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means.

Furthermore Article 24 does not extend protection to children who are still with their parents and who have the same needs of maintenance and schooling as the separated children, and in addition the Article makes it possible for the state parties to let private and voluntary institutions and organizations provide for the needs of the children which might lead states parties to hand over their responsibilities to such entities that mostly lack accountability.295 10.3.2.1.1. Additional Protocol I to the Geneva Conventions With the adoption of Additional Protocol I to the Geneva Conventions that provides protection in international armed conflicts a considerable effort was for the first time made to protect civilians from the conduct of hostilities, and this was also the first time that the Law of the Hague was beginning to be strengthened which it had not been since the start of the 20th century.296 Additional Protocol I

293 294 295 296

experiences from the Second World War greatly informed the drafting process of the Geneva Conventions. Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 17 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 17 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 16 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 18;

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developed international humanitarian law by extending protection to the whole population and not merely to specific vulnerable groups in international armed conflicts as had been done before.297 Protocol I provides as a general rule that combatants in war must distinguish between civilians and combatants as well as between civilian objects and military objectives, where “the only legal targets of attack are military objectives, which are defined as ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstance ruling at the time, offers a definite military advantage’”.298 But an objective that is partially civilian and military may still be a legally permissible military objective, and further it is possible to change the definition of an objective during the course of the war meaning that an objective that is civilian in nature could change into becoming a military objective.299 The principle of proportionality needs to be taken into account here and the issue with this principle is that “it rarely forbids the attacking of a legitimate military objective; what it does require is that the military utilise the strategy which is most likely to result in the least civilian losses.”300 Protocol I provides protection to civilians and children, but at the same time “all protection is still within the framework of considerations of military necessity”, as it is acknowledged that to totally prohibit the injuring and killings of civilians including children would not be possible to legally require.301 The only real protection that is offered civilians including children by Protocol I is to be protected “from being the direct and intended target of attack”.302 The way Protocol I defines the term “protection” goes against how international human rights instruments for children uses the term “protection”.303 With regards to “protection” in Protocol I from a human rights perspective of the child concerning the right to life, Hamilton and El-Haj have pointed out that “any provision that allows for the loss of civilian life, provided that the loss is not exces-

297 298 299 300 301 302 303

Geneva Protocol No. 1 Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of victims of International Armed Conflicts 1977 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 18 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 18 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 18-19 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 19 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 19 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 20 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 22

The Legal Protection of Children and Armed Conflict

sive in relation to the concrete and military advantage anticipated, is essentially incompatible with the right to life provisions”.304 See for instance Article 6 of the CRC, the 1924 Declaration of Geneva and the 1959 Declaration on the Rights of the Child. Here they argue that Protocol I “does not uphold a child’s fundamental right to life or their right to survival”.305 During the draft ing process of Protocol I the drafting committees were given proposals which gave stronger protection to children, but just like with the Fourth Geneva Convention consensus took priority which resulted in less protection of children.306 Considering the rights of the child, Protocol I does not give children strong protection in their status as children, or give all children equal protection, and the best interests of the child principle has not been taken into account. Thus the Protocol does not reflect the rights of children as they were understood in 1977 or later in 1989 with the adoption of the CRC.307 It is Articles 77 and 78 that provide for protection of children, but while the whole population is to be provided protection, at the same time, for instance, the provisions regarding children only focus on certain problems such as “participation in armed conflicts; arrest, detention or internment; criminal sentencing; and evacuation of children.”308 In this respect it is not a particularly strong protection that is provided, instead it is the minimum standards of protection that are being offered in Protocol I.309 Furthermore, in terms of age, who constitutes a “child” is not defined in Protocol I or in its Article 77, and for children between 15–18 years of age, the term “persons” is used in Article 77(2).310 Article 77 – Protection of Children: 1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the confl ict shall provide them with the care and aid they require, whether because of their age or for any other reason.

304 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 22 305 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 23 306 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 23 307 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 26 308 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 22 309 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 25 310 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 25-26

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2.

3.

4.

5.

Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fi fteen but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fi fteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war. If arrested, detained or interned for reasons relating to the armed confl ict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5. The death penalty for an offence related to the armed confl ict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.

Article 78 – Evacuation of Children: 1. No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health and medical treatment of children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the written consent to such evacuations of the persons by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties shall take all feasible precautions to avoid endangering the evacuation. 2. Whenever an evacuation occurs pursuant to paragraph 1, each child’s education, including his religious and moral education as his parents’ desire, shall be provided while he is away with the greatest possible continuity. 3. With a view to facilitating the return to their families and country of children evacuated pursuant to this Article, the authorities of the Party arranging for the evacuation and, as appropriate, the authorities of the receiving country shall establish for each child a card with photographs, which they shall send to the Central Tracing Agency of the International Committee of the Red Cross. …

The Legal Protection of Children and Armed Conflict

10.3.2.1.2. Additional Protocol II to the Geneva Conventions Additional Protocol II to the Geneva Conventions affords protection to civilians including children in internal armed conflict. Protocol I is more comprehensive than Protocol II, which reflects that the respect of the sovereignty principle has been an issue that also limits the protection given to civilians including children in internal armed conflicts.311 In Protocol II as in Protocol I the civilians including children are to a certain degree protected from the conduct of hostilities, but with regards to Protocol II three aspects are noteworthy:312 – – –

There is no definition of civilians and combatants as a consequence of sensitivity about sovereignty. There is no explicit obligation to minimise civilian losses although some protections against the conduct of hostilities exist. There is no specific prohibition of reprisals against civilians.

Before 1977 protection for civilians in internal armed conflicts was only covered by common Article 3 of the Geneva Conventions, and Protocol II needs to be seen within that context.313 Hamilton and El-Haj stipulate that the principles in common Article 3 came to be viewed “as too general and incomplete to provide an adequate guide to the conduct of hostilities in internal armed conflicts”.314 While common Article 3 is applicable to all types of internal armed conflicts, Protocol II has a threshold that must be met as “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” are not covered by the Protocol.315 And while as noted above there are some limitations, common Article 3 is to apply when Protocol II does not.316 More specifically Additional Protocol II applies according to its Article 1 in the following situations:317 311

Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 27 312 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 26 313 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 27 314 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 27 315 Kalshoven, F., Zegveld, L., Constraints on the Waging of War, An introduction to international humanitarian law, 4th edition, 2001, p. 132 316 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 30 317 Protocol Additional To The Geneva Conventions of 12 August 1949, And Relating To The Protection Of Victims Of Non-International Armed Conflicts (Protocol II), Adopted at Geneva, 8 June 1977, No. 57

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Article 1 1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed confl icts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

Protocol II was the first legal instrument in humanitarian law that included a provision, Article 4(3), which extended protection to all children, and saw all children as children.318 In the Article all children are provided with guarantees to be treated humanely as it is stated that:319 Children shall be provided with the care and aid they require, and in particular: a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care; b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated; c) children who have not attained the age of fi fteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured; e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.

318 319

Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 27 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 27-28: Additional Protocol II Article 4(3)

The Legal Protection of Children and Armed Conflict

Children are being afforded additional protection in Protocol II in other articles, however only within the categories of being “persons whose liberty has been restricted or [persons subject to] penal prosecutions.”320 While efforts were made to improve protection and include further rights of children into the Protocol at the time of the drafting of the Protocol, this effort was not successful, and Hamilton and El-Haj argue that “[t]he only real development is the generalisation of protection seen in Article 4(3(a)) and the addition of Article 4(3(e))”.321 Protocol II does not provide a definition of a child just as is the case with the Fourth Geneva Convention and Protocol I, and 18 years is not used as the age that a child reaches maturity.322 The provision only stipulates “children who have not attained the age of fifteen …”, however there is still not a definition provided of a child. The protection given to children in the Protocol is confounded by its limited applicability, including the threshold in paragraph 2, Article 1 in that the Protocol II is not to be applied “to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature”.323 Protocol II covers solely situations such as: 324 1. 2. 3. 4. 5.

6.

There is an armed confl ict not covered by Article 1 of Additional Protocol I. The armed conflict takes place in the territory of a High Contracting Party. The conflict involves the armed forces of a High Contracting Party and dissident armed forces or other organized armed groups. These dissident armed forces or other organized armed groups are under a responsible command. They have control over a part of the territory of the High Contracting Party so as to enable them to carry out sustained and concerted military operations and to implement Protocol II. The situation is not an internal disturbance or tension, a riot or isolated and sporadic act or acts of violence or other similar act.

It is important to understand that “the effects of war are not limited by their classification under humanitarian law”, and that children as the rest of a population

320 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 28 321 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 28 322 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 28 323 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 28-29 324 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 28-29

857

858

Chapter 10

are not as a result afforded adequate protection in different violent situations.325 Instead their situation is not always recognized and they are left to fend for themselves, and many times it takes a long time before a situation is finally recognized, which leads to unnecessary suffering. This must also be seen in the context that some governments are very reluctant to acknowledge that indeed violence amounting to an internal armed conflict in accordance with Additional Protocol II is taking place, leaving the population without protection. Such countries and regions include Colombia. The Constitutional Court of Colombia has stated in Auto 251 that international humanitarian law is “clearly applicable to the internal Colombian armed conflict” and that Additional Protocol II of the Geneva Conventions is applicable.326 Furthermore it has taken a long time for states to ratify the two Protocols, and as of November 2012 there were 172 states parties to the Protocol I and 166 states parties to Protocol II (Afghanistan ratified Protocol II in November 2009).327

325 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 29 326 Auto 251/08, La Sala Segunda de Revisión de la Corte Constitucional, Magistrado Ponente, Manuel José Cepeda Espinosa, Auto 251/08, Bogotá, D.C., seis (6) de octubre de dos mil ocho (2008), para. I.4.2. 327 ICRC, 1949 Geneva Conventions and Additional Protocols, www.icrc.org/ihl.nst, by 30 November 2012

Children and Youth in Armed Conflict

The Raoul Wallenberg Institute Human Rights Library Editor-in-Chief

Gudmundur Alfredsson Managing Editor

Timothy Maldoon Editorial Board

Brian Burdekin – Miriam Estrada – Jonas Grimheden – Michelo Hansungule – Christina Johnsson – Rahmatullah Khan – Manfred Nowak – Chris Maina Peter – Bertram Ramcharan – Per Sevastik – Manoj Kumar Sinha – Mpazi Sinjela – Rebecca Stern – Sun Shiyan – Lyal Sunga – Zhang Wei – Ineta Ziemele

VOLUME 43/II

The titles published in this series are listed at brill.com/rawa

Children and Youth in Armed Conflict VOLUME II

by

Ann-Charlotte Nilsson

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Nilsson, Ann-Charlotte, author. Children and youth in armed conflict / by Ann-Charlotte nilsson. pages cm. -- (The Raoul Wallenberg Institute Human Rights Library, ISSN 1388-3208 ; v. 43/I) Includes bibliographical references and index. ISBN 978-90-04-26025-2 (hardback : alk. paper) -- ISBN 978-90-04-26027-6 (hardback : alk. paper) -- ISBN 978-90-04-26028-3 (hardback : alk. paper) -- ISBN 978-90-04-26026-9 (e-book) 1. Children (International law) 2. War victims--Legal status, laws, etc. 3. Children and war. I. Title. K639.N55 2013 341.6'7083--dc23 2013039043

issn: 1388-3208 isbn: isbn: isbn: isbn:

978-90-04-26027-6 978-90-04-26028-3 978-90-04-26025-2 978-90-04-26026-9

(hardback volume I) (hardback volume II) (hardback set) (e-book)

Copyright 2013 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Table of Contents

Foreword

xix

Acknowledgements

xxi

List of Abbreviations

xxv

VOLUME I Introduction

1

1.

The Development of Political, Civil and Economic, Social and Cultural Rights and Children

1.1.

The Interdependence of Political, Civil and Economic, Social and Cultural Rights The Pre-Existing Environment Children and Youth Grow Up In Violence Against Children Corporal Punishment and Other Cruel, Inhuman or Degrading Treatment The United Nations Committee on the Rights of the Child and Corporal Punishment The United Nations and Violence Against Children The United Nations Committee on the Rights of the Child and Violence Against Children The Rapporteurship on the Rights of the Child of the InterAmerican Commission Traditional and Harmful Practices and Children The Protection of Human Rights of Children in the Democratic Republic of Congo Early Child Marriage and Yemen Growing Up in Afghanistan Afghanistan and the Human Rights of Children

1.2. 1.2.1. 1.2.1.1. 1.2.1.1.1. 1.2.1.2. 1.2.1.2.1. 1.2.1.2.2. 1.3. 1.3.1. 1.3.2. 1.4. 1.4.1.

5 5 19 24 24 28 34 36 40 42 57 60 70 73

vi

Table of Contents

1.4.2. 1.4.3. 1.5.

Child Labour in Afghanistan Children and the Justice System in Afghanistan The African Report on Child Wellbeing

2.

Public Health and Armed Conflict

2.1. 2.2. 2.2.1. 2.3. 2.3.1. 2.3.2.

2.9. 2.10.

The Right to Health Maternal and Newborn Health The Fifth Millennium Development Goal Adolescent Health and Development Adolescents Girls in Post-Conflict Liberia Adolescents and Children and Health in the Occupied Palestinian Territory Public Health Concerns in the Democratic Republic of Congo and Colombia The United Nations Committee on the Rights of the Child and HIV/AIDS UNICEF and an Equity-Based Approach to Child Survival and Development Delivering Health Care in Emergencies and Armed Conflict Case Studies on Public Health in Emergencies and Armed Conflict Public Health in Kashmir Public Health in Afghanistan Care of Orphaned and Unaccompanied Children in Rwanda After the Genocide Mental Health Care in Emergencies and Armed Conflict The Convention on the Rights of Persons With Disabilities

3.

Street Children and Other Vulnerable Children

3.1. 3.1.1. 3.1.2. 3.1.2.1. 3.2.

Street Children in Africa Street Children in Nairobi, Kenya Street Children in Rwanda Vulnerable Children in Rwanda After the Genocide and War Adolescents as Other Vulnerable Children, Orphans and HIV/AIDS

2.4. 2.5. 2.6. 2.7. 2.8. 2.8.1. 2.8.2. 2.8.3.

4.

Providing Education in Armed Conflict

4.1.

Providing Education in Armed Conflict and Emergency Situations as a Human Right The World Declaration on Education for All, Jomtien, 1990 The Dakar Framework for Action, Education for All: Meeting our Collective Commitments The Millennium Development Goals September 2000 General Assembly Resolution 64/290 on the Right to Education in Emergency Situations

4.2. 4.2.1. 4.2.2. 4.2.3.

74 82 86 91 92 104 109 112 117 117 119 122 124 127 138 138 141 143 147 150 155 155 156 163 166 172 177 179 190 193 197 201

Table of Contents

4.3. 4.3.1. 4.3.2. 4.3.3. 4.3.3.1. 4.3.3.2. 4.3.3.3. 4.4. 4.4.1. 4.4.2. 4.4.3. 4.4.3.1. 4.4.4. 4.4.5. 4.4.5.1. 4.4.6. 4.4.6.1. 4.4.6.2. 4.4.6.2.1. 4.4.6.2.2. 4.4.7. 4.5. 4.5.1. 4.5.1.1. 4.5.1.2. 4.6. 4.7. 4.7.1. 4.7.2. 4.8. 4.9. 4.9.1. 4.9.1.1. 4.9.1.2.

Education for Children in Armed Conflict Challenges to Providing Education in Armed Conflict Situations How to Overcome Challenges to the Provision of Education in Armed Conflict Attacks on Schools, Students and Teachers in Armed Conflict Global Coalition for Protecting Education from Attacks The United Nations Monitoring and Reporting Mechanism and Attacks Against Schools The International Criminal Court and Attacks Against Education Country Case Studies and the Provision of Education in Situations of Armed Conflict The Upper Nile State, Blue Nile State, South Kordofan and Abyei in South Sudan UNRWA and Providing Education in the Occupied Palestinian Territory Providing Education in Colombia Threats to Teachers and the Work of the Teacher Organization Federación Colombiana de Educadores Education in the Democratic Republic of Congo The Provision of Education in Afghanistan The Right to Education and the Challenges to Its Fulfilment in Afghanistan Education in Pakistan The Taliban in Pakistan and Their Influence on Children The LEAP’s Project in Pakistan Madrassa Schools in Pakistan Education in Punjab, Pakistan Political Attitudes and Content of Curriculum Education in Divided Societies in the Post-Conflict Phase Ethnicity, Education and Peace-Building in Burundi Education as the Cradle of Hope Educators and Educational Programmes and Practices in the Peace-Building Process in Burundi Peace Agreements, Issues of Exclusion and Discrimination, and Education Why Is Education Important? The Role of Education/Quality of Education Early Childhood Care and Development Education for Refugees and Internally Displaced Children Funding for Education in Conflict-Affected Countries Humanitarian Aid Delivery For Education in Conflict-Affected Countries Funding Channels of Humanitarian Assistance to Education The United Nations Central Emergency Response Fund (CERF)

205 206 210 211 224 225 232 236 236 238 246 249 252 255 257 271 272 275 275 277 281 282 287 292 293 297 303 309 315 316 319 322 323 326

vii

viii

Table of Contents

4.9.1.2.1. 4.9.1.2.2. 4.9.1.3. 4.9.1.3.1. 4.9.1.3.2. 4.9.1.3.2.1. 4.9.1.4. 4.9.2. 4.9.2.1. 4.9.3. 4.9.3.1. 4.10.

CERF Grants to Yemen Evaluation of UNICEF’s Response to the Sa’ada Conflict in Northern Yemen The United Nations Inter-Agency Standing Committee (IASC) The IASC’s Cluster Approach to Strengthen Humanitarian Response The Global Education Cluster The Education Cluster for Haiti After the January 2010 Earthquake Finding New Ways to Fund Education in CAFS The Inter-Agency Network for Education in Emergencies (INEE) The INEE Reference Guide on External Educational Financing The Education for All Fast Track Initiative (EFA FTI) Reforming the FTI Mental Health and Psychosocial Support as Part of Education in Emergencies

5.

The Inter-American Human Rights System as It Pertains to Children

5.1. 5.1.1.

The Human Rights of Children and Adolescents Prohibition of Suspension of International Obligations Related to the Human Rights of Children The Inter-American Court of Human Rights and Its Decisions on the Rights of Children in Armed Conflict The Concept of Victims and the Inter-American Court of Human Rights The United Nations Committee on the Rights of the Child and Guatemala Authoritarian Reversal of Laws on Children in Latin America

5.2. 5.2.1. 5.3. 5.4.

6.

The African Regional Human Rights System

6.1. 6.1.1.

The African Charter on the Rights and Welfare of the Child Children Affected by Armed Conflict and the African Children’s Charter The African Committee of Experts on the Rights and Welfare of the Child Cooperation Within the African Human Rights System as It Relates to Children

6.1.2. 6.2.

7.

The European Union’s Work on Children and Armed Conflict

7.1. 7.2. 7.3.

Introduction The European Union Guidelines on Children and Armed Conflict European Union’s Work on the Human Rights of All Children

328 332 336 338 340 343 345 346 349 355 365 369

371 371 376 381 402 405 408 411 414 426 431 436

439 439 443 450

Table of Contents

7.3.1. 7.4. 7.4.1. 7.5. 7.5.1. 7.6. 7.7.

Different Country Programmes on Children’s Rights and Children Affected by Armed Conflict The European Commission’s Humanitarian Aid Department The European Union and Children and Armed Conflict in Colombia The European Union Study on “Enhancing the EU Response to Children Affected by Armed Conflict” The European Union Survey on Children and Armed Conflict Revised Implementation Strategy of the European Union Guidelines on Children and Armed Conflict Conclusion

8.

The Issues of Trauma, Psychological and Psycho-Social Consequences for Children and Youth in Armed Conflict

8.1. 8.1.1.

Introduction How to Make Sense of the Violence That the Children Have Been Through The Issue of Exposure What Characterizes Strength? What Does It Mean to Be Powerful? The Impact of Prolonged Conflict and Exposure of Conflict on Children and Youth How the Palestinian Internal Infighting Has Affected the Palestinian Children The Effects on Parenthood and Families and the Concept of Protecting the Children The Specific Relationship Between Mothers and Their Children The Situation for Children in Gaza During and After Operation Cast Lead Case Studies Psychosocial Effects of War Among Displaced Children in Southern Darfur in Sudan Psychosocial Assessment and Psychosocial Intervention for War-Affected Children in Sierra Leone A Response to Psychosocial Intervention for War-Affected Children in Sierra Leone as It Relates to Sri Lanka Psychological Disturbances of War-Traumatized Children From Different Foster and Family Settings in Bosnia-Hercegovina Seven Years After the 1992–1995 War / Caring for War Orphans Afghanistan – Violence as an Influential Factor in the Emotional Development of Children Children – Family Violence, Child Labour and Poverty in Afghanistan Iraqi Children’s Thoughts and Reactions Before the March 2003 US Invasion

8.1.2. 8.1.3. 8.2. 8.2.1. 8.3. 8.3.1. 8.3.2. 8.4. 8.4.1. 8.4.2. 8.4.2.1. 8.4.3.

8.4.4. 8.4.4.1. 8.4.5.

454 456 459 462 479 487 494

497 498 503 507 510 511 520 529 538 539 545 545 555 563

566 572 577 582

ix

x

Table of Contents

8.4.5.1. 8.4.6. 8.4.6.1. 8.4.7. 8.4.8. 8.5. 8.5.1. 8.5.1.1. 8.5.2. 8.5.2.1. 8.5.2.2. 8.5.3. 8.5.3.1.

8.5.3.2. 8.5.3.3. 8.5.3.3.1. 8.5.3.4. 8.5.3.4.1. 8.5.3.4.2. 8.5.3.5. 8.5.4. 8.5.5. 8.5.5.1. 8.5.5.2. 8.5.5.2.1. 8.5.6. 8.5.7.

Iraq: The Mosul Case Study Trauma and Children After the Genocide in Rwanda Youth-Headed Households in Rwanda After the Genocide 1994 War Violence and Natural Disasters, Children and Mental Health in Sri Lanka War Exposure and Trauma in Adolescents in the Democratic Republic of Congo Discussions Does Violence Breed Violence in Children and Adolescents Who Grow Up in Armed Conflicts? Does Good Parenting Protect Against the Children Developing Aggressive Behaviour in a Conflict Environment? Community Violence Exposure and Aggression in Children The Risk of Children and Youth Using Violence Themselves When Does the Child or Adolescent View Aggression as Acceptable? Resiliency in Children Resiliency Factors That Protect Children From Persistent Symptoms and Facilitate Good Adjustment in the Palestinian Context Children and Perceived Parenting The Effects of Peace Agreements on Children, the Case of the Palestinian Children Why Did the Flag-Raising Activities Play Such a Role for the Children? Israeli Children – Risk and Resiliency Factors Trauma in Israeli Children and Their Relationship to Parents Ideology as a Protective Factor for Children in Israel Bushfires in Australia, the Impact of Life Events on Children and Their Parents The Terrorist Bombing 1998 in Nairobi, Kenya and Kenyan Children and Youth in 2010 The Role of Culture and Trauma Discussion Cultural Aspects and the Process of Cultural Disintegration Ethnocultural Aspects of Posttraumatic Stress Disorder The Inter-Agency Standing Committee Guidelines on Mental Health and Psychosocial Support in Emergency Settings Conclusion

9.

Internally Displaced Persons

9.1. 9.2.

Introduction International Support for the Assistance and Protection of Internally Displaced Persons

588 589 593 601 604 608 608 625 631 637 638 643

644 648 653 655 657 665 668 672 674 676 681 684 687 689 691 693 693 703

Table of Contents

9.3.

9.7.4.1.1. 9.7.4.1.2. 9.7.4.1.3. 9.7.4.1.4. 9.7.4.1.5. 9.7.4.1.6.

Post-Election Violence in Kenya and the Conditions for the Women and Girls in the IDP Camps for Those Who Had Become Displaced by the Violence The United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons The Guiding Principles on Internal Displacement Internal Displacement in Africa The Kampala Convention Internal Displacement in Colombia The Constitutional Court of Colombia and the Rights of Internally Displaced Persons The Constitutional Court of Colombia and Its Tutela Decision T-025 The Constitutional Court of Colombia and Auto 251 on Boys, Girls, Teenagers and Adolescents Domestic Violence and Children Sexual Violence Measures to Be Adopted Differential Treatment of Individuals Who Have Special Constitutional Protection in Colombia The Guiding Principles on Internal Displacement and Colombia The Rights of Children and Youth in the Colombian Context The United Nations Human Rights Committee and Its Concluding Observations on Colombia as Pertaining to Children and Youth Act No. 975 of 2005 and Reparation and Impunity Serious Human Rights Violations Sexual Violence Preventive Detention and Mass Arrest Forced Displacement Recruitment of Children

10

The Legal Protection of Children and Armed Conflict

10.1. 10.1.1. 10.1.1.1.

The Human Rights of Children The United Nations Convention on the Rights of the Child Children and Armed Conflict and Article 38 of the Convention on the Rights of the Child The International Labour Organization’s Convention No. 182 The CRC Committee on the Rights of the Child The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

9.4. 9.5. 9.6. 9.6.1. 9.7. 9.7.1. 9.7.1.1. 9.7.1.1.1. 9.7.1.1.1.1. 9.7.1.1.1.2 9.7.1.1.1.3. 9.7.2. 9.7.3. 9.7.4. 9.7.4.1.

10.1.1.1.1. 10.1.1.2. 10.1.2.

705 708 710 719 721 728 730 739 747 758 759 763 771 776 780

780 781 782 782 783 783 783 785 785 787 791 794 795

800

xi

xii

Table of Contents

10.1.2.1.

United Nations Committee on the Rights of the Child and State Reports Under the Two Protocols That Have Entered Into Force The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography The CRC Committee, Considerations of Reports Submitted by Colombia Under Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Concluding Observations Sexual Violence Use and Occupation of Schools Civic Military Activities Assistance for Physical and Psychological Recovery Committee on the Rights of the Child, Summary Record of the 1528th (Chamber A) Meeting, Initial Report of Colombia Under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, CRC/C/SR.1528, 22 June 2010 Education in Colombia Children Require Special Protection in Armed Conflict and Emergencies The Right of a Child to Receive a Birth Registration Children and International Humanitarian Law and Human Rights Law Human Rights Law The Right to Life The Prohibition of Torture International Humanitarian Law The Fourth Geneva Convention as It Relates to Children Additional Protocol I to the Geneva Conventions Additional Protocol II to the Geneva Conventions

836 840 841 843 844 844 851 855

11.

The Work of the United Nations on Children and Armed Conflict

859

11.1.

The Establishment of the Special Representative of the Secretary-General on Children and Armed Conflict The Office of the Special Representative of the SecretaryGeneral on Children and Armed Conflict The United Nations Child Protection Advisers in PeaceKeeping Missions

10.1.2.1.1.

10.1.2.1.2.

10.1.2.1.2.1. 10.1.2.1.2.2. 10.1.2.1.2.3. 10.1.2.1.2.4. 10.1.2.1.3.

10.1.2.1.3.1. 10.2. 10.2.1. 10.3. 10.3.1. 10.3.1.1. 10.3.1.2. 10.3.2. 10.3.2.1. 10.3.2.1.1. 10.3.2.1.2.

805

805

806 811 812 813 813

814 825 825 833

VOLUME II

11.1.1. 11.2.

859 864 868

Table of Contents

11.2.1.

11.2.2. 11.2.3. 11.2.4. 11.3. 11.4. 11.5. 11.5.1. 11.5.2. 11.5.2.1. 11.5.2.2. 11.5.3. 11.5.4. 11.5.5. 11.5.5.1. 11.5.5.2. 11.5.5.2.1. 11.5.5.2.2. 11.5.5.2.3. 11.5.5.2.4. 11.5.6. 11.5.6.1. 11.5.6.2. 11.5.6.2 .1. 11.5.6.2.2.

The United Nations Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict Within UN Peacekeeping Missions Reports by the Secretary-General on Peace-Keeping Missions and Child Protection The United Nations Secretary-General’s Country-Specific Reports on CAAC Sexual Exploitation and Abuse Involving Minors by United Nations Peace-Keeping Personnel The Work of the UNICEF in the Monitoring and Reporting Mechanism The Work of the United Nations Security Council on Children and Armed Conflict The United Nations 1612 Monitoring and Reporting Mechanism The Legal and Normative Framework for the MRM and Its Six Priority Violations The Security Council Working Group on Children and Armed Conflict The Chairmanship of the Security Council Working Group on Children and Armed Conflict Mexico as Chair of the Working Group on CAAC Challenges to the Work of the Working Group on Children and Armed Conflict The Working Group’s Conclusions Security Council Working Group on Children and Armed Conflict Toolkit The Working Group’s Field Trip to Nepal Sanctions, Targeted and Graduated Measures and Children and Armed Conflict The Security Council Sanctions Committee for the Democratic Republic of Congo The Security Council Sanctions Committee for Côte d’Ivoire The Security Council Sanctions Committee for the Sudan/Darfur The Security Council Sanctions Committee on Somalia and Eritrea The United Nations Monitoring and Reporting Mechanism and Accountability Actions to Hold Persistent Violators of Grave Violations Against Children Accountable Making the United Nations Monitoring and Reporting Mechanism More Effective The Nature of the Dialogues With the Different Parties, Governmental Forces and Non-State Actors What Role Should the MRM Play in Pursuing Accountability in International Criminal Tribunals?

871 875 875 876 877 879 886 893 906 908 911 914 919 922 927 929 937 945 948 949 950 950 955 957 960

xiii

xiv

Table of Contents

11.5.7.

11.5.7.1. 11.5.7.1.1. 11.5.7.1.2. 11.5.7.1.3. 11.5.7.1.4. 11.5.7.1.5. 11.5.7.1.6. 11.5.7. 2.

11.5.7.3. 11.5.7.3.1. 11.5.7.3.2. 11.5.7.3.3. 11.5.8. 11.5.9. 11.5.9.1. 11.5.9.1.1. 11.5.9.1.2. 11.5.9.1.3. 11.5.9.1.4. 11.5.9.1.5. 11.5.9.1.6. 11.5.9.2. 11.5.9.2.1. 11.5.9.2.2. 11.5.9.2.3. 11.6.

Reporting on Violations Against Children and the United Nations Secretary-General’s Annual Report on Children and Armed Conflict Reporting on the Six Priority Violations Killing and Maiming of Children Rape and Sexual Violence Against Children Attacks on Schools and Hospitals Denial of Access to Humanitarian Assistance Recruitment and Use of Child Soldiers Abduction of Children The Criteria for Listing and De-Listing Parties to Armed Conflict in the Annexes of the Secretary-General’s Annual Reports on Children and Armed Conflict The Country Taskforces on the Monitoring and Reporting Mechanism Annex I Situation – The Taskforce on MRM for the Democratic Republic of Congo UN MRM Taskforces in Situations in Annex II The UN MRM in Situations Not Listed in the Annexes The Challenges Involved with the UN 1612 MRM Process The United Nations Monitoring and Reporting Mechanism and Specific Country Situations Case of the MRM and Sri Lanka The Visit of the Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka The Screening of Children Who Might Have Been Associated With the LTTE Issues of Accountability Tracing and Family Unity The Paris Principles and Commitments (2007) The Security Council Working Group on CAAC’s Conclusions on Children and Armed Conflict in Sri Lanka Case of the MRM and the Post-Conflict Environment: Nepal Monitoring in Nepal Release from Cantonments The Political Environment for Reintegration Conclusion

12.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

12.1. 12.2.

Introduction The Development of Women’s Rights in Armed Conflict and Rape and Sexual Violence Committed Against Women in Armed Conflict

961 961 961 962 965 966 967 969

970 972 974 979 982 985 988 988 994 995 1000 1001 1001 1002 1003 1010 1019 1022 1026

1035 1035

1036

Table of Contents

12.3. 12.3.1. 12.3.1.1.

12.4. 12.4.1. 12.4.2. 12.4.3. 12.4.3.1. 12.4.4. 12.4.5. 12.5. 12.5.1. 12.6. 12.6.1. 12.6.1.1. 12.6.2. 12.6.3. 12.6.4. 12.6.4.1. 12.7.

12.7.1. 12.8. 12.8.1. 12.8.2. 12.8.2.1. 12.9. 12.9.1.

Gender Equality and Empowerment at the United Nations The Convention on the Elimination of All Forms of Discrimination Against Women The Definition of “Violence Against Women” and the Convention on the Elimination of All Forms of Discrimination Against Women The United Nations Security Council Resolutions 1325, 1820, 1888, 1889 and 1960 on Women and Armed Conflict Security Council Resolution 1325 (2000) Security Council Resolution 1820 (2008) Security Council Resolution 1888 (2009) The Office of the United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict Security Council Resolution 1889 (2009) Security Council Resolution 1960 (2010) The Challenges to the Roles of Women in the Ending of Conflicts, Peace Negotiations and Peace-Building The Post-Conflict Transitional Period and the Issues of Justice and Reconciliation Rape and Sexual Violence Committed in Armed Conflict New Law on Rape and Sexual Violence in the Democratic Republic of Congo Rape Cases Before Courts in the Democratic Republic of Congo Colombia and Sexual Violence Children, Sexual Violence and the Lord’s Resistance Army in Northern Uganda Gender-Based Violence and Feminicide Gender-Based Violence in Iraq The Importance of Documenting and Recording Gross Human Rights Violations Such as Rape and Sexual Violence Also When Impunity Is Rampant and the Court System Does Not Function Centre Olame, Bukavu in South Kivu in the Democratic Republic of Congo Treating Survivors of Sexual Violence The HEAL Africa Hospital, Goma, North Kivu, the Democratic Republic of Congo The Consequences of Sexual Violence in the Democratic Republic of Congo Who Are the Perpetrators in the Democratic Republic of Congo? The Issues of Trauma, PTSD Symptoms, Sexual Violence and Reconciliation Study of Former Child Soldiers From Uganda and the Democratic Republic of Congo With PTSD Symptoms and Their Attitudes Toward Reconciliation

1043 1045

1049 1055 1056 1057 1059 1061 1064 1068 1072 1074 1078 1086 1086 1087 1094 1097 1099

1103 1106 1113 1113 1118 1120 1122

1122

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Table of Contents

12.9.2.

12.9.3. 12.10.

Study From Rwanda of People Shown To Have PTSD Symptoms and How This Affects Their Attitudes Toward Justice and Reconciliation A Psychosocial Case Study in Liberia Conclusion

13.

Armed Conflict, Transitional Justice and Children and Youth

13.1. 13.2.

Introduction Criminal Accountability of Crimes Committed Against Children in Armed Conflict The International Criminal Court and Children Associated with Armed Forces and Armed Groups The Amicus Curiae Brief by the UN Special Representative of the Secretary-General on Children and Armed Conflict and the Thomas Lubanga Dyilo Case Justice: To End Impunity for Rape and Sexual Violence in Armed Conflict The International Criminal Tribunals for Former Yugoslavia and Rwanda International Criminal Justice and Women and Girls and Former Yugoslavia The History of the Victims in International Humanitarian Law and the Emergence of International Human Rights Law The Protection of Victims and Witnesses in Transitional Justice Processes The International Criminal Court and Reparations for Victims and Victims and Witness Unit The Outreach Unit of the International Criminal Court International Criminal Tribunals and Cases Relating to Women and Children Participation of Children in Transitional Justice Processes Participation of Children Before the Special Court for Sierra Leone Accountability of Children as Perpetrators When Is a Child Too Young to Be Tried? The Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes Transitional Justice and Truth and Reconciliation Commissions The Truth and Reconciliation Commissions for South Africa, Sierra Leone and Liberia The Truth and Reconciliation Commission for Sierra Leone and the Special Court for Sierra Leone

13.3. 13.3.1.

13.4. 13.4.1. 13.4.1.1. 13.4.2. 13.4.2.1. 13.4.2.1.1. 13.4.2.1.2. 13.5. 13.6. 13.6.1. 13.6.2. 13.6.2.1. 13.6.2.2.

13.7. 13.7.1. 13.7.2.

1124 1129 1132

1133 1133 1137 1144

1150 1158 1162 1166 1171 1175 1179 1181 1182 1189 1193 1197 1201

1205 1207 1213 1219

Table of Contents

13.7.2.1. 13.7.2.1.1. 13.7.2.1.2. 13.7.2.1.3. 13.7.2.1.4. 13.7.2.1.5. 13.7.2.1.6. 13.7.2.1.7. 13.7.2.1.8. 13.7.2.1.9. 13.7.2.1.10. 13.7.2.1.11. 13.7.2.1.12. 13.7.2.1.13. 13.7.2.1.14. 13.8. 13.8.1. 13.8.1.1. 13.8.1.2. 13.8.1.3. 13.8.1.4. 13.8.1.5. 13.8.1.6. 13.8.1.7. 13.8.1.8. 13.9. 13.9.1. 13.10.

The Truth and Reconciliation Commission for Sierra Leone and Children and Youth The Education System Before, During and After the Armed Conflict Abductions, Forcible Recruitment and Child Soldiers Becoming a Refugee or Internally Displaced Sexual Violations Against Children Sexual Slavery Amputations Torture Forced Drugging After the War – The Child Soldiers The Civil Defence Forces The Sierra Leone Army The Economic Consequences for the Children Street Children Children as Perpetrators and Victims The Liberian Truth and Reconciliation Commission The Liberian Truth and Reconciliation Commission and Children Children Being Directly Targeted Sexual Violence and Rape Child Soldiers The Role of Children in Liberia Why Children Have Been Used as Soldiers in Liberia and Their Treatment Accountability for the Crimes Committed by the Child Soldiers Education in Liberia “General Butt Naked” Transitional Justice for Children in Peru and Colombia The Truth and Reconciliation Commission for Peru and Children Conclusion

14.

Children Associated With Armed Forces and Armed Groups

14.1.

Voluntary and Involuntary Recruitment and Use of Child Soldiers The Paris Principles and Paris Commitments on Children Associated With Armed Forces and Groups The Demobilization, Disarmament and Reintegration Programmes – The DDR Processes The DDR Process in the Democratic Republic of Congo and CONADER

14.2. 14.3. 14.3.1.

1223 1230 1231 1235 1237 1239 1241 1242 1244 1249 1253 1256 1258 1260 1261 1264 1269 1274 1278 1282 1286 1287 1291 1296 1298 1301 1308 1321

1323 1324 1333 1337 1340

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14.3.2.

14.7. 14.7.1. 14.7.2. 14.8.

Colombia and the Children Associated With Armed Forces and Groups The Demobilization Regime for Combatants in Colombia Challenges to the Demobilization of the Paramilitaries The Issues of Justice The Reintegration Phase of DDR Programmes The Challenges Involved With the Prevention of Recruitment and Re-Recruitment in Colombia How to Prevent the Recruitment of Children Into Armed Groups Prevention of Child Recruitment in Colombia The Special Challenges with Reintegration, Prevention and Re-Recruitment in Colombia Armed Groups Outside of the Law and the Urban Conflict in Colombia Girls Associated With Armed Groups and Armed Forces Association de Goma le Communitaire and Former Girl Child Soldiers Why Do Children Become Child Soldiers? The Case of Colombia The LRA in Northeastern Democratic Republic of Congo The DDR Programmes for Sierra Leone and Liberia

15.

Adolescents and Youth and Armed Conflict

15.1. 15.2.

15.6.

Introduction Youth Susceptibility and Expressions of Political Support in Israel Manipulation of Youth in Political Violence in Sierra Leone Former Child Soldiers and Their Psychosocial Health in the Post-Conflict Environment Kenya and Youth Participation in the Post-Election Violence Children and Youth After the Post-Election Violence in Kenya Children and Youth and Al-Shabaab in Somalia and Kenya Children’s and Youth’s Participation in Violence in Medellín in Colombia The African Youth Charter

16.

Conclusion

14.3.2.1. 14.3.2.2. 14.3.2.2.1. 14.4. 14.4.1. 14.5. 14.5.1. 14.5.1.1. 14.5.1.1.1. 14.6. 14.6.1.

15.3. 15.3.1. 15.4. 15.4.1. 15.4.2. 15.5.

1348 1350 1360 1365 1367 1373 1377 1380 1383 1395 1399 1407 1408 1408 1413 1415 1421 1421 1427 1431 1435 1438 1445 1446 1449 1459 1473

Bibliography

1475

Index

1559

List of Abbreviations

Acción Social ACERWC ACHPR ACRWC AFL ANPPCAN APRM AU AUC AWP

CAAC CAR CEDAW CESCR CFSP CNDP COHOM COJUR CRC CSDP DDR DPA DPKO

Agencia Presidencial para la Acción Social y la Cooperación Internacional African Committee of Experts on the Rights and Welfare of the Child African Charter on Human and Peoples’ Rights African Charter on the Rights and Welfare of the Child; a.k.a. African Children’s Charter Armed Forces of Liberia African Network for the Prevention and Protection against Child Abuse and Neglect African Peer Review Mechanism African Union Autodefensas Unidas de Colombia Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women; a.k.a. African Women’s Protocol or the Maputo Protocol Children and Armed Conflict Central African Republic Convention on the Elimination of All Forms of Discrimination Against Women Committee on Economic, Social and Cultural Rights EU’s Common Foreign and Security Policy Congrès national pour la defense du people Council of the EU Working Group on Human Rights Council Working Group on International Law (EU) Convention on the Rights of the Child Common Security and Defence Policy Disarmament, Demobilization and Reintegration United Nations Department on Political Affairs United Nations Department on Peace-Keeping Operations

xx

Abbreviations

DRC ECHO ECOWAS EEAS EFA ELN ESDP EU EUSRs FARC FARDC FGM FDLR FNI FRPI HoMs ICBF IACHR ICC ICCPR ICESCR ICRC ICTR ICTY IDP ILO INPFL IOM LPC LRA LURD MDG MODEL NEPAD NGO NPFL OAU PARECO PRST RUF SCSL

Democratic Republic of Congo European Commission’s Humanitarian Aid Department Economic Community of West African States European External Action Service Education for All Ejército de Liberación Nacional European Security and Defense Policy European Union European Union Special Representatives Fuerzas Armadas Revolucionarias de Colombia Forces armées de la Rèpublique du Congo Female Genital Mutilation Forces Démocratiques de liberation du Rwanda Front nationaliste et intégrationnaliste Forces de résistance patriotique en Ituri Heads of Missions Instituto Colombiano de Bienestar Familiar Inter-American Convention on Human Rights International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Internally Displaced Person International Labour Organization Independent National Front of Liberia International Organization for Migration Liberian Peace Council Lord’s Resistance Army Liberians United for Reconciliation and Democracy Millennium Development Goal Movement for Democracy in Liberia New Partnership for Africa’s Development Non-Governmental Organization National Patriotic Front of Liberia Organization for African Unity Patriotes résistants congolais Presidential Statement Revolutionary United Front Special Court for Sierra Leone

Abbreviations

Social Action SRSG-CAAC TRC ULIMO UNAIDS UNAMSIL UNDP UNGASS UNHCR UNICEF UNSC WFP WHO

Presidential Agency for Social Action and International Cooperation Special Representative of the Secretary-General on Children and Armed Conflict Truth and Reconciliation Commission United Liberation Movement Joint United Nations Programme on HIV/AIDS United Nations Mission in Sierra Leone United Nations Development Programme United Nations General Assembly’s Special Session on Children United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Security Council World Food Programme World Health Organization

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11.

The Work of the United Nations on Children and Armed Conflict

11.1.

The Establishment of the Special Representative of the Secretary-General on Children and Armed Conflict

The widespread exposure of children and youth to conflict and violence became an increasingly important issue for the United Nations to address especially as internal conflicts came to the fore during the 1990s. In 1993 the Committee of the Convention on the Rights of the Child requested that the UN General Assembly “appoint an expert that would head a study on children in armed conflicts”.1 This led to the UN General Assembly adopting resolution 48/157 in 1993 and appointing Graça Machel to head the study in 1994, and the main issue underlying the study was how to find a way to protect children from armed conflict.2 Subsequently Graça Machel came out with the report “Impact of Armed Conflict on Children” in 1996, which was the first report to seriously bring up the issue of how children and youth are affected by armed conflict to an international level.3 The report was ground-breaking and as a result of one of the recommendations in the report, the Office of the Special Representative of the SecretaryGeneral for Children and Armed Conflict was established in 1997 to serve as a focal point within the UN system for children affected by armed conflict, and the UN Secretary-General appointed as the first Special Representative Mr. Olara A. Otunnu.4 At the UN there has been an incremental approach to children and armed conflict (CAAC), and CAAC as an issue at the UN started with 1 2 3

4

Mezmur, B. D., Children at both ends of the gun: child soldiers in Africa, in SlothNielsen, J., Ed., Children’s rights in Africa: a legal perspective, 2008, p. 199 Hamilton, C., El-Haj, T. A., Armed Conflict: The protection of children under international law, The International Journal of Children’s Rights 5: 1-46, 1997, p. 1 Machel, G., Impact of armed conflict on children, Report of the expert of the Secretary-General, Ms. Graça Machel, submitted pursuant to General Assembly resolution 48/157, A/51/306 and Add.1, 1996 Office of the Special Representative on Children and Armed Conflict, www.un.org/ chilren/conflict/english/theoffice/html

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the General Assembly and the Graça Machel study.5 CAAC as an issue was first identified in the General Assembly through this study, and the establishment of the Office of the Special Representative of the Secretary-General on Children and Armed Conflict (SRSG-CAAC) was the first recognition of and response to the issue of CAAC within the system.6 The mandate of the Special Representative of the Secretary General and Children and Armed Conflict was first established for three years with the General Assembly resolution 51/77 of 12 December 1996, which the General Assembly has extended four times, the latest such extension was with resolution A/RES/63/241 of 24 December 2008 for another three years.7 The mandate includes raising greater awareness of the special situation of war-affected children, and to ensure their rights as well as protection during and after conflict and importantly the Special Representative has the mandate to establish contacts with non-state actors. This led to for instance during his first trip to Colombia in 1999 that the Special Representative was able to meet with the insurgency group FARC (the Revolutionary Armed Forces of Colombia) and thus was able to raise issues such as the use of child soldiers with not only the government but also with a non-state actor.8 The first Special Representative made the campaign “Era of Application” the main theme for his work with a focus on having laws and norms implemented on the ground.9 This campaign consisted of four parts: “advocacy and dissemination of children and armed conflict norms; developing and strengthening local civil society networks for protection, monitoring and rehabilitation; mainstreaming children and armed conflict issues into the programmes and mechanisms of key institutions, within and outside the United Nations; and the establishment of a monitoring, reporting and compliance mechanism to ensure compliance with

5

6

7 8

9

Fabien Fieschi, France’s former Expert at the Security Council Working group on children and armed confl ict, Interview at the UN headquarters, New York, May 20, 2009 Fabien Fieschi, France’s former Expert at the Security Council Working group on children and armed confl ict, Interview at the UN headquarters, New York, May 20, 2009 Office of the SRSG-CAAC, http://www.un.org/children/confl ict/english/theoffice. html Press Release HR/4418, Special Representative of Secretary-General for children and armed conflict concludes humanitarian mission to Colombia, June 9, 1999, www.un.org/News/Press/docs/1999/19990609.HR4418.html: see also U.N. document A/54/430 Report of the Special Representative of the Secretary-General for Children and Armed Conflict, Protection of children affected by armed conflict, October 3, 2000, A/55/442, para. 11, page 4, and United Nations, General Assembly/ Security Council, Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 62-63, p. 15

The Work of the United Nations on Children and Armed Conflict

children and armed conflict norms”.10 The Security Council endorsed the “Era of Application” in resolution 1460 (2003). While there had been many positive developments, there were also concerns about how the Special Representative conducted his work regarding children and armed conflict, and several UN actors, NGOs, and UN member states for instance thought that his reports to the Security Council and the General Assembly were “lacking in appropriate content, analysis and tone”.11 The report by the UN Secretary-General “Comprehensive assessment of the United Nations system response to children affected by armed conflict” in September 2004 stipulated that “most” of his field missions had not lead to any significant improvements in child protection.12 Furthermore the report listed several issues that staff working in the countries he had visited found problematic and they included “insufficient discussion with field actors prior to departure; missions that took place too late to be of optimal value in seeking child rights compliance by parties to conflicts; the absence of clarity of agreements and procedures to ensure compliance with commitments; and insufficient communication with field offices after the missions”.13 Another issue was that there was no follow-up to the Special Representative’s field visits or to the Security Council’s resolutions. The report highlighted that the profi le of the situation for children in armed conflict had been raised during the tenure of the Special Representative within the UN, among member states and the general public and that he had “played a catalytic role on the Security Council’s engagement with respect to children and armed conflict”.14 Two other main achievements were that the mandates of peace-keeping missions began to incorporate child protection issues and that the position of Child Protection Advisors (CPAs) was created, which the Office of the Special Representative,

10

11

12

13

14

United Nations, General Assembly/ Security Council, Report of the Secretary-General, Children and armed conflict, A/59/695-S/2005/72, 9 February, 2005, para. 64, p. 15 Report of the Secretary-General, Comprehensive assessment of the United Nations system response to children affected by armed conflict, A/59/331, 3 September 2004, para. 14, p. 6 Report of the Secretary-General, Comprehensive assessment of the United Nations system response to children affected by armed conflict, A/59/331, 3 September 2004, para. 14, p. 6 Report of the Secretary-General, Comprehensive assessment of the United Nations system response to children affected by armed conflict, A/59/331, 3 September 2004, para. 14, p. 6 Report of the Secretary-General, Comprehensive assessment of the United Nations system response to children affected by armed conflict, A/59/331, 3 September 2004, para. 13, p. 6

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working together with the Department of Peacekeeping Operations and UNICEF had achieved.15 Ms. Radhika Coomaraswamy was appointed the second Special Representative of the Secretary-General on Children and Armed Conflict in 2006. She was formerly the United Nations Special Rapporteur on Violence against Women from 1994 to July 2003.16 The SRSG-CAAC did a strategic review of the 1996 Graça Machel study in 2007, and it is known as the “Machel plus 10”.17 The review specifically addresses the fact that children are living in the middle of conflicts and are many times directly targeted by the different combatants.18 The executive director of UNICEF, Ann M. Veneman, stated at the launch of the “Machel plus 10” that children are being deliberately targeted as victims of violence, abuse and exploitation in today’s conflicts.19 “Machel plus 10” points out that children as a result of living in the midst of a conflict situation suffer the consequences of malnutrition, disease, displacement and poverty due to the armed conflict. Because of the changing nature of conflicts to mainly internal conflicts, the review also addresses the issue of impunity by different non-governmental armed groups that commit human rights violations against children. For instance while visiting the Democratic Republic of Congo including Goma in March 2007, Ms. Coomaraswamy highlighted the issue of impunity as one of the most important issues to be addressed.20 She demanded that child protection become a priority for the then new Congolese government.21 To ensure that the Special Representative would continue to be an effective voice for children in armed conflict situations the SRSG-CAAC issued a mission statement in 2009, which is within the framework of her mandate of promoting 15

16 17

18

19 20 21

Report of the Secretary-General, Comprehensive assessment of the United Nations system response to children affected by armed conflict, A/59/331, 3 September 2004, para. 7, p. 4 The UN Commission for Human Rights, www.ohchr.org Office of the Special Representative of the Secretary-General on Children and Armed Confl ict, Ten years on, Machel Review Cites Continued Abuse against Children in Conflict; Nature of Conflicts is Changing as Children Increasingly Targeted Report Says, October 17, 2007, www.un.org/children/confl ict/pr/2007-10-17167.html and UNICEF, Children and armed conflict in a changing world, October 19, 2007, Unicef e-news Office of the Special Representative of the Secretary-General on Children and Armed Confl ict, Ten years on, Machel Review Cites Continued Abuse against Children in Conflict; Nature of Conflicts is Changing as Children Increasingly Targeted Report Says, October 17, 2007, www.un.org/children/confl ict/pr/2007-10-17167.html UNICEF, Children and armed conflict in a changing world, October 19, 2007, Unicef e-news Child Protection Officer working in Goma, DRC, April-May 2007 DRC: Child Protection must be a priority for the new Government, Press Release, New York/Goma, 9 March 2007, www.un.org/children/conflict/pr/2007-03-09drcchildprotecti145.html

The Work of the United Nations on Children and Armed Conflict

and protecting the rights of all children affected by armed conflict, and which further clarifies the mandate of her work as she is:22 – – –

–

To serve as a moral voice and an independent advocate for the protection and well-being of boys and girls affected by armed conflict; To advocate, build awareness and give prominence to the rights and protection of children affected by armed conflict; To work with partners to propose ideas and approaches to enhance the protection of children affected by armed conflict and to promote a more concerted protection response; To be a facilitator, undertaking humanitarian and diplomatic initiatives to facilitate the work of operational actors on the ground with regard to children affected by armed conflict.

The Office of the SRSG on CAAC furthermore in its strategic framework for 2009–2012 identified six objectives for its work and they include to support global initiatives to end grave violations against children affected by armed confl ict, to promote the rights of children affected by armed conflict and advocate for their protection and care, to make CAAC concerns an integral part of peacekeeping and peace building, to strengthen knowledge and research through partnership, to secure political and diplomatic engagement of member states on CAAC initiatives and to raise global awareness and support with regard to all issues relating to children and armed conflict.23 In order to promote discussion, collaboration and cooperation between the UN agencies and to further the agenda on children and armed conflict at the headquarters level of the UN, the United Nations Task Force on children and armed conflict was established in 2000.24 The Task Force is convened by the Office of the Special Representative for Children and Armed Conflict and its members are UNICEF, the Department of Peacekeeping Operations, the Department of Political Affairs, the Office of Legal Affairs, UNHCHR, the Office for the Coordination of Humanitarian Affairs (OCHA), the United Nations Development Fund for Women (UNIFEM), the Department for Disarmament Affairs, the Office of the Special Adviser on Africa, the Office of the Special Adviser on Gender Issues and Advancement of Women, UNHCR, UNDP and 22 23 24

Office of the Special Representative of the Secretary-General for children and armed conflict, Strategic framework 2009-2012 Office of the Special Representative of the Secretary-General for children and armed conflict, Strategic framework 2009-2012 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, p. 21; Office of the Special Representative of the Secretary-General for children and armed conflict, Working with partners, www.un.org/children/confl ict/english/workingwithpartners.html, printed 2008-08-29

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ILO.25 In order to achieve a more effective cooperation between the UN agencies and to avoid the overlapping of the different agencies’ work, the issues of how to complement the work and the division of labour between them need to be continually addressed. That the Special Representative of Secretary-General on Children and Armed Conflict is convening the Task Force is part of her “mandate and role to provide leadership, visibility and greater global awareness of the rights of children affected by armed conflict and to mobilize political support and facilitate collaborative efforts on the issue across the United Nations system and beyond”.26 The Task Force on children and armed conflict was asked by the Security Council to establish a monitoring and reporting mechanism and to outline the issue of CAAC.27 The Task Force meets twice a year to discuss policy issues, and its reporting is broader than MRM as it is also about how to present a country situation, mainstreaming issues and issue policy commitments on CAAC.28 The NGOs and the Task Force meet every month and the SGSR-CAAC briefs the NGOs after every field visit. A Steering Committee of the Task Force was established and it is co-chaired by the OSRSG/CAAC, UNICEF, OCHA, DPKO, UNHCR and OHCHR. The Steering Committee also does work on the MRM, but it is a technical group and it only discusses technical issues when they come up, which is not often.29 11.1.1.

The Office of the Special Representative of the Secretary-General on Children and Armed Conflict30

The SGSR-CAAC reports to three bodies: 1) the Human Rights Council, 2) the General Assembly as part of her mandate, and 3) UN Security Council, as chil-

25 26

27

28

29

30

United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, p. 21 Office of the Special Representative of the Secretary-General for children and armed conflict, Working with partners, www.un.org/children/confl ict/english/workingwithpartners.html, printed 2008-08-29 Alec Wargo and Laurence Gerard, Office of the Special Representative of the Secretary-General for children and armed conflict, Interview, UN Headquarters, New York, May 20, 2009 Alec Wargo and Laurence Gerard, Office of the Special Representative of the Secretary-General for children and armed conflict, Interview, UN Headquarters, New York, May 20, 2009 Alec Wargo and Laurence Gerard, Office of the Special Representative of the Secretary-General for children and armed conflict, Interview, UN Headquarters, New York, May 20, 2009 The information in this section, unless otherwise noted, comes from Alec Wargo and Laurence Gerard, Office of the Special Representative of the Secretary-General

The Work of the United Nations on Children and Armed Conflict

dren today are considered to be a peace and security issue, through the reports of the UN Secretary-General. The Office of the SRSG-CAAC means that the mandate of the SRSG-CAAC is broad and adequate enough, and that the only limits are the budget and the office. It is important to keep in mind that the mandate of the SRSG-CAAC is broader than the six violations of the 1612 MRM, as it also for instance includes landmines and the situation for internally displaced children. Furthermore, one needs to view the SRSG-CAAC’s conduct of her work in the light of the Graça Machel report which underlined the changing nature of conflicts, and new issues such as terrorism and the use of child suicide bombers have come to be part of her work and new approaches and new priorities continuously need to be developed and therefore the mandate has needed to be extended to include new priorities and issues. Some of the most important contributions of the SRSG-CAAC to date have been the work of the Office on the establishment of the 1612 MRM, to make children’s issues part of peace-keeping with the creation of the post of child protection officers within peace-keeping missions, the development of action plans with governmental armed forces and non-governmental armed groups, advocacy on CAAC, and the mainstreaming of CAAC within the UN system including with the UNICEF and ILO, and the result is that today CAAC is really mainstreamed within the UN. There are multiple challenges for the office of the SRSG-CAAC SGSRCAAC, including the issue itself, and the fact that the SRSG-CAAC SGSR-CAAC is mainly an advocacy office. Further the issue of impunity is a priority issue for the SRSG-CAAC SGSR-CAAC, and what to do with the persistent violators (they were 16 in the report of the SG on CAAC of 2010). In this context the issue of sanctions is a challenge, as there are not many sanctions committees established for countries where there are persistent violators. Sanctions committees exist only for DRC, Côte d’Ivoire, Somalia, and Sudan and then there is the sanctions committee for Al Qaeda and the Taliban.31 For some countries with the worst violators there are no sanctions committees established such as for Myanmar. Other challenges are how to develop actions plans with non-state actors in situations such as Colombia and Myanmar. For instance in Myanmar there was no development, and the MRM country task force for Myanmar had at the time not been able to properly conduct its monitoring and verification work as it lacked access to the government armed forces (Tagmadaw Kyi), recruitment units, schools and camps.32 Furthermore the Myanmar government did not give but very limited

31 32

for children and armed conflict, Interview, UN Headquarters, New York, May 20, 2009, and follow-up information United Nations Sanctions Committees, www.un.org/sc/committees, accessed July 20, 2010 See also Report of the Secretary-General, Children and Armed Confl ict, A/64/742S/2010/181, 13 April 2010, p. 22

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permission for the UN country task force to establish contacts with non-state armed groups, and as a result the task force was excluded from being able to contact many of the armed groups listed in Annex I of the SG’s annual report.33 Many armed actors have told the SRCG-CAAC that they want to be removed from the Secretary-General’s annexes as most care about being on these lists and for instance the Sudanese government was very interested in being removed from the list. Factors such as bad press may negatively affect the fundraising capabilities of a party and it matters in the long run in terms of fund raising as the groups need weapons and other kinds of support, and if it becomes too difficult and complicated to deal with these groups the groups will not be able to obtain the necessary funds or resources. Another factor is that some groups have political objectives and because of this reason might be more inclined to follow through on commitments and action plans and to release children from their ranks. Many of the armed groups show a real fear of being listed, and many do fear the sanctions. Follow-up of action plans goes on until one year after the practice of the recruitment and use of child soldiers has ended. In her reports and in the reports of the UN Secretary-General on CAAC only information that the office of the SRSG-CAAC can verify is included. The “horizontal note” in the reports of the UN Secretary-General on CAAC is an informal note of issues that have not been covered and it is also used to provide an update on issues and as a briefing; it is used to keep the Security Council Working Group on CAAC informed. The main priorities for the SRSG-CAAC in her reporting and from her field trips include the raising of awareness and advocacy of the situation for the children affected by armed conflict. The main contributions and achievements of her reporting and field trips are that her office has been able to successfully raise awareness on the ground on CAAC, having had access to the many parties including governmental officials and non-state actors, that the SRSG-CAAC is results oriented and many times is able to get commitments from armed forces and armed groups. In the context of her field trips and reporting it is important to keep in mind that her mandate is broader than the six MRM violations, which makes it possible for her to raise many other issues such as the situation for the internally displaced children and landmines. It is the Security Council that recommends sending SRSG-CAAC on her field trips, and she reports back to the Security Council Working Group when she returns. The SRSG-CAAC interacts with different international agencies, UNICEF and the various UN country teams. They contribute to her reports, and the UN country teams provide training, work on getting commitments in the field from different armed groups, draft action plans, and they do the follow-up on the commitments. Furthermore one reason as to why field visits by the SRSG-CAAC are so important is that when UNICEF cannot say something because an issue is 33

Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 22

The Work of the United Nations on Children and Armed Conflict

deemed too sensitive on the ground, then the SRSG-CAAC can raise a sensitive issue because she is not on the ground and leaves shortly after her visit again, and as such she does not put anybody at risk. The SRSG-CAAC advocates for funds for country teams, such as she has for Chad, Myanmar and CAR. Furthermore, the SRSG-CAAC submitted an Amicus Curiae brief in February 2008 in the case of Lubanga of DRC to the prosecutor’s office of the ICC. The intention behind this submission was to widen the interpretation of what a child soldier is to also include being a porter or a cook for instance, and the fact that the Lubanga case is the first case for the ICC on child soldiers, this was an opportunity for the SRSGCAAC to have an impact on the jurisprudence the ICC was trying to establish. Also in the Thomas Lubanga case, the SRSG-CAAC testified as an expert witness before the ICC on 10 January 2010.34 It is also important to note that the SRSG-CAAC interacts with other international and regional organizations and for instance the SRSG-CAAC has briefed the COHOM of the European Union on CAAC. Concerning detention of minors, on her visit to Israel, Lebanon and OPT in 2007, the SRSG-CAAC talked to the Israeli minister responsible for detention issues and advocated for the rights of children, including that children should be separated from the adults. The SRSG-CAAC was allowed visit a detention centre, but there has been no change in Israel’s policy towards detaining Palestinian children. Neither the US envoy nor the European Union envoy to Israel and OPT picked-up on the CAAC issues at the time. With regards to the Security Council resolution 1882 where the violations of killing and maiming of children and rape and sexual violence of children would also trigger a 1612 MRM country task-force, the Office of the SRSG-CAAC meant that sexual violence is underreported and that nobody really looks at it from a perspective of responsibility and accountability. The mandate of the Special Representative of the Secretary General on sexual violence in conflict did not at first allow for the listing of parties in a report; however her mandate was extended in 2010 with Security Council resolution 1960 which makes it possible for her to list parties on the agenda of the Security Council.35 At the UN headquarters there has not been any cohesive work on sexual violence and the focus is more advocacy work on the issue. There is a need to jump-start the issue of sexual violence, and to get people to talk about it, however gender issues at the UN remains conservative. The Office of the SRSG-CAAC requested that an external expert write the guidelines on how to conduct the action plans to include the killing and maiming of children and rape and sexual violence of children. There are many challenges 34

Annual Report on CAAC by the SG, June 2010, CAAC, p. 2, Security Council or Statement by the President of the Security Council, S/PRST/2010/10, 16 June 2010 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010 35 See further Security Council resolution 1960 (2010), and Chapter 12 in this book.

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with the verification of rape and sexual violence committed against children and to identify the responsible party. There needs to be an action plan in place in order to be able to list the parties. For instance according to the Office of the SRSG-CAAC, in Afghanistan 99 per cent of the victims of sexual violence of children are boys, but there is a lot of suppression of the issue and it is difficult to find partners to work on sexual violence in Afghanistan. Another concern is that some NGOs concentrate on the medical response to sexual violence before addressing the accountability issue, and some NGOs argue that if a person has been sexually violated that person needs access to hospital and medical help, and that medical assistance needs to be the priority and not the accountability issue. The mind-set is that these issues are exclusive of one another and that you have to choose between them. As was noted the Security Council Working Group on CAAC is about building experience within the UN and is an innovative tool, considering also that CAAC has been the only human rights issue at the Security Council.

11.2.

The United Nations Child Protection Advisers in Peace-Keeping Missions

To deploy child protection advisers (CPAs) in peace-keeping missions developed from the fact that peace agreements began referring to including the situation of children and peace-keeping missions were asked to assist in implementing these child specific issues.36 Furthermore, as a result of the Security Council asking the Secretary-General in its resolution 1261 in 1999 to make sure that “personnel involved in United Nations peacemaking, peacekeeping and peace-building activities have appropriate training on the protection, rights and welfare of children”, the position of child protection advisers was created.37 The UN peace-keeping mission in Sierra Leone (UNAMIL) deployed the first child protection adviser in 2000, and then several other peace-keeping missions have deployed child protection advisers. The mandate for the child protection advisers is established by the resolutions on children and armed conflict by the Security Council and the specific mandate and child protection issues of each peace-keeping mission.38 As a result 36

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UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 3 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 4 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 5

The Work of the United Nations on Children and Armed Conflict

each peace-keeping mission has a different number of child protection advisers and their location within the structure of each mission is also different. A survey conducted on the work and challenges of the different CPAs in 2007 found that CPAs, mission personnel including its senior management as well as other child protection partners did not always clearly understand the terms of reference for the CPAs, that is that there was a lack of clarity about their mandates or their roles.39 The survey highlighted two specific concerns in terms of the role of CPAs, one of which was that the work of the CPAs many times overlapped the work of other actors within the area of child rights advocacy, monitoring and reporting functions, supporting the national ministries for social welfare and children’s affairs and disseminating child protection information.40 An interagency child protection coordination mechanism should be created if it had not already, and the CPAs should be integrated into this mechanism, where consultation, clear division of labour and joint planning between different actors could be identified (UNAMSIL and UNMA were given as good examples).41 When it came to the lack of clarity about their mandates also by the CPAs themselves, it was noted that in the terms of reference it is stipulated that “the CPA must be qualified to fi ll a post at the level appropriate for a key adviser to the Special Representative of the Secretary-General”, but not many CPAs actually had any access to the mission leadership, the survey showed, which led to the situation that they could not properly carry out their work.42 For instance some CPAs were located in the Office of the SRSG (like in UNAMSIL), while others were located in office of the DSRSG who was in charge of humanitarian affairs (MONUC, UNMIS, UNOCI), which could give the wrong impression that the CPAs’ roles were more of a humanitarian character and not a political one. The survey showed that most of the CPAs surveyed saw their priority functions to be: advising senior mission leadership to ensure that child rights concerns are raised in all political and peace-building fora, advising colleagues in other mission components to ensure that their relevant initiatives are “child-sensitive”, advocating on behalf of children’s rights in collaboration with child protection 39

40

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UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 5 and 8 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 8 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 8 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 8

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partners on the ground and to collaborate with mission and child protection personnel to monitor and report on child rights violations and issues.43 The CPAs have “helped to increase the attention given to the rights and needs of war-affected children on the UNs peace and security agenda” through their monitoring and reporting work.44 The CPAs have also played an important role in efforts to mainstream child protection issues within peacekeeping missions in general. The issues that were identified by the survey that impedes their effectiveness include: “(i) there is a lack of clarity about their role; (ii) the profi le and selection of CPAs vary significantly; (iii) their activities are not always adequately coordinated with other child protection actors on the ground; and (iv) there is no capacity in DPKO to provide guidance and operational support”.45 Every CPA surveyed stated that an effective CPA activity “which had a significant impact” was monitoring and reporting, meaning that they had an advantage over other child protection actors as the peace-keeping missions had an overall political mandate under which they worked.46 Some of the other actors might be concerned to report in politically sensitive issues since they rely on not having what can be viewed as controversial relationships with other actors in order to be able to stay in the country and cooperate with national actors.47 For instance access to certain areas to help the population might be compromised if the international actor reports about what is deemed as controversial or sensitive. The CPAs have been very active in implementing the action plans as called for in resolution 1539 and the 1612 MRM mechanism in the field, and having the CPAs present on the ground together with the child protection monitoring mandate enables the UN to have additional witnesses reporting on the ground as well as that during all stages of the post-conflict peace-building phase the needs of children can be attended to.48

43

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UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 5 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 3 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 3 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 5 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 5 UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 6

The Work of the United Nations on Children and Armed Conflict

Also child rights violations can be averted or stopped by the work of CPAs, where CPAs in Bunia in DRC together with the military prosecutor in Bunia stopped the arrest and detention of children under the age of 18 years. In the case of Thomas Lubanga in DRC, information from the field on child recruitment and use helped the prosecutor of the ICC to build a case against him, and such information also assisted in the charges of forced child recruitment when the Sierra Leones Special Court for Sierra Leone indicted the former President of Liberia Charles Taylor and Sam Hinga Norman, the former Minister of Defence for Sierra Leone.49 11.2.1.

The United Nations Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict Within UN Peacekeeping Missions

The position of a Child Protection Focal Point for the whole UN Department of Peacekeeping Operation (DPKO) was established and is located in the Peacekeeping Best Practices Section in the Department of Policy Evaluation and Training at the DPKO Headquarters since 2008. As a response to the DPKO Lessons Learned Study, the UN Department of Peacekeeping Operation and the Department of Field Support adopted the “Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict within UN Peacekeeping Operations”, to be effective from 1 June 1 2009 until 1 June 2011(it was to be reviewed in June 2011).50 This policy is mandatory for all personnel within the DPKO, and it “defines the scope of DPKO’s responsibility and its partnerships at both headquarters and field level, with key UN child protection actors, including UNICEF, UNHCR, OHCHR, ILO, UNFPA, and other relevant members of the UN Country team and the Office of the SRSG-CAAC.”51 According to the policy the DPKO is responsible for concerns of protection, rights and well-being of children affected by armed conflict being specifically integrated into all aspects of UN peacekeeping and peace-making and in its policies, strategies, training and briefing programmes (para. 14). The protection of CAAC is to be systematically addressed all through the stages of mission plan49

50

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UN Peacekeeping, Lessons Learned Study: Child Protection, The Impact of Child Protection Advisers in UN Peacekeeping Operations, Peacekeeping Best Practices Section, May 2007, p. 6 Department of Peacekeeping Operation and the Department of Field Support, The Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict within UN Peacekeeping Operations, Ref. (2009.17), Effective 1 June 2009 Department of Peacekeeping Operations, Department of Field Support, The Policy on Mainstreaming the Protection, Rights and Well-Being of Children Affected by Armed Conflict within UN Peacekeeping Operations, Ref. (2009.17), Effective 1 June 2009, A. 4 and B. 5 and 6

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ning, mission design and mandate implementation (para. 15). Furthermore, all the structures and resources needed for child protection are to start at the earliest possible stage and a CPA is to be included in all the stages of mission planning. It is not only the six priority violations that are to be included but also child sensitive DDR, juvenile justice, legislative reform, and training for all peacekeeping personnel, military, police and civilian staff (para. 16). The normative framework for the protection of CAAC that the DPKO is to be guided by includes international and regional human rights norms, instruments, and standards relating to children, the UNCRC and its two Optional Protocols (OP-CRC-AC, OP-CRC-SC), international humanitarian law, the Rome Statute for the ICC, ILO Convention 182, Security Council resolutions on CAAC and relevant mission mandates (para. 17). The policy applies to all mission personnel including the senior management, and senior management, including the Special Representatives of the Secretary-General (SRSGs) and Head of Missions (HOMs), is to play a leading role regarding the promotion of the rights and concerns of CAAC and they are to make sure that appropriate human rights instruments as well as the resolutions by the Security Council on CAAC and importantly the Conclusions of the Security Council Working Group on CAAC are effectively implemented (para. 18). The SRSGs and the HOMs and the Resident Coordinators have the responsibility according to the action plan on the implementation of the MRM by the Secretary-General to ensure the follow-up, mainstreaming, coordination and monitoring system wide, as well as to engage in dialogue at the country level with the different parties to the conflict (para. 19). The Secretary-General’s action plan on the implementation of the MRM underlines the importance that the SRSGs and HOMs show leadership and get personally involved together with UNICEF at the country level, when it comes to entering into dialogue with different parties, establishing action plans and political démarches (para. 19). Furthermore, the SRSGs and the HOMs are to make sure that in all stages of a peace process that child protection issues are included, as well as “to promote a mission-wide approach to implementing the child protection aspects of the mission’s core mandate and functions and consider how each component of the mission might take into account child rights concerns within their core activities” (para. 20). The policy clarified the role of the CPAs in peacekeeping operations, and they are to advise the peacekeeping mission and the SRSGs and HOMs to make sure “that relevant child protection issues are addressed in all stages of the peace process, and that all key actors and mechanisms within the mission adopt a child conscious approach” (para. 22). The CPAs are to help the senior management to implement the overall child protection strategy that is to be developed in the mission areas together with the actors that are to be involved (para. 22). Furthermore they are to advice the SRSGs and HOMs and other mission components on how to make sure that the Security Council’s resolutions are successfully followed-up in the field, and that the child protection dimension of the peacekeeping missions’ mandates are implemented, which encompass “mainstreaming, train-

The Work of the United Nations on Children and Armed Conflict

ing of all peacekeeping personnel, engaging in dialogue with parties to end the recruitment and use of children by armed forces and groups, and other grave violations”, as well as that the 1612 MRM together with the UN Task Force on MRM are implemented (para. 23). The CPAs are to be the interface between a peacekeeping mission and other child protection actors in the field, and are to use the leverage of the mission’s resources, including political, in order to guarantee that CAAC are protected, and that the violations of the rights of children are prevented and dealt with (para.24). It is to the Head of Mission that the CPAs are to directly report to, which most of the time is the Special Representative of the Secretary-General, and while in some instances the CPA can report to the Deputy Special Representative of the Secretary General, it is still the support of the Head of Mission that is crucial when it comes to implementing the peacekeeping mission’s responsibilities according the Security Council’s resolutions on CAAC (para. 25). According to the policy the CPA shall work together with all “relevant mission components” such as the Human Rights Unit, the Rule of Law Unit or the Judicial Section, Political Affairs, DDR, SSR, Gender, HIV, the UN Police and the Military Observers, so that the mission’s main actors and mechanisms conduct their work with a child conscious approach (para. 27). The policy specifically spells out that the UN peacekeeping mission’s child protection activities are to complement the work of the other operational agencies in the field, but that they are not programmes for fostering child rights which is the work of other UN agencies and funds (para. D.2.). The core activities for the CPAs, which also the Security Council has asked for, include training all deployed peacekeeping personnel, military, police and civilian, monitoring and reporting on the situation of CAAC, and engaging in dialogue with perpetrators to end the recruitment and use of children associated with armed forces and groups and other child rights violations. With regards to the MRM, the policy states that the UN peacekeeping missions have “a key role to play” when it comes to realizing the MRM at the country level, which the UN-led Country Task Force on Monitoring and Reporting (CTFMR) is implementing (para. 35). It is the CPA that is to assist and advise the SRSG/HOM in entering into dialogue with the different parties to develop action plans to end the recruitment and use of child soldiers and the other child rights violations (para. 42). This is be done together with the UN CTFMR and the Office of the SRSG-CAAC, and it is the Office of the SRSG-CAAC and UNICEF at the headquarters level that are to provide guidance and support on the development of action plans (para. 43). The policy refers to SC resolutions 1460, 1539 and 1612 which stipulate that all the Secretary-General’s reports on country specific situations are to include a section on child protection, and stipulates that it is the CPAs who are responsible that the mission reports on CAAC (paras. 44–45). Resolution 1460 was the first time that the Security Council requested that all reports on country-specific situations by the Secretary-General would include if relevant a section on child

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protection concerns. Furthermore, it is the CPAs that are responsible that the mission provides information to the MRM Country Task Forces’ reports to the Security Council including bi-monthly reports to the SCWG, and the annual report on CAAC by the SG which are to go through the Office of the SRSG-CAAC (para.46). The CPAs shall assist the SRSGs/HOMs in identifying, together with UNICEF, members of the UN Country Team and relevant national actors, the priorities for child protection in the mission area (para. 48). It is the CPA that functions as an advocate, facilitator and adviser to the leadership of the mission on CAAC issues where attention is necessary (para. 49). The policy states that the DPKO is to support actors such as the Office of the SRSG-CAAC, UNICEF, UNHCR, OHCHR, ILO and other actors of the UN country teams, and the work of the DPKO is to be complementary to the work of these agencies (paras. 51–53). Furthermore, the Office of the SRSG-CAAC is according to the policy to provide technical advice, training, advisory services on the implementation of the resolutions from the Security Council and the followup regarding the Security Council Working Group on CAAC’s Conclusions and recommendations (para. 56). The DPKO is also to take into consideration the work of the UN Committee on the Rights of the Child regarding monitoring and its jurisprudence as it relates the 1612 MRM on the ground (para. 57). With regards to cooperation with UNICEF, the policy stipulates that the DPKO has the responsibility to coordinate and complement child protection strategies at both the headquarters and field level with UNICEF, and other actors and mechanisms (para. 59). At the headquarters level DPKO and UNICEF are to work together “to identify areas where guidelines could be developed to ensure seamless coordination in addressing the protection of CAAC” (para. 60). It is the responsibility of the CPAs to work to clarify the roles and responsibilities among the different UN agencies, UNICEF, and the UN country teams in the field (para. 61). The policy defines “mainstreaming” as “mainstreaming of children’s concerns entails a demonstration of full commitment to and promotion of concerns related to children at all levels of the department including senior level management, integration of children’s concerns into policies and strategic plans, inhouse knowledge, expertise to inform policies and day to day operations and sufficient financial capacity to fulfill these commitments” (para. E.). This definition in turn draws from the UN SG’s report from 2004 “Comprehensive assessment of the UN system response to children affected by armed conflict”.52 It is the responsibility of the Special Representative of the S-G/ Head of Mission to manage and oversee this child protection policy (para. 62).

52

United Nations, General Assembly, Comprehensive assessment of the United Nations system response to children affected by armed conflict, Report of the Secretary-General, A/59/331, 3 September, 2004

The Work of the United Nations on Children and Armed Conflict

11.2.2.

Reports by the Secretary-General on Peace-Keeping Missions and Child Protection

The Secretary-General usually includes a separate section on child protection in his reports on peace-keeping missions.53 One such example is the report of the Secretary-General from July 2010 on the UN mission to CAR and Chad, which had a child protection section on Chad.54 In the report the SG explained that the Chad MRM task force is co-lead by MINURCAT and UNICEF and UNHCR, and that in this context two training sessions on child rights with a focus on child recruitment had been organized by MINURCAT. These sessions were “part of broader UNICEF supported programmes”, and the monitoring of grave violations against children was discussed in the first training session. At the first session 27 social workers from different NGOs and delegates from the Ministry of Social Action participated, and at the second training 37 community leaders, local administrative authorities and military commanders attended. In this report the SG also reported that one of the main human rights challenges in eastern Chad continued to be sexual and gender-based violence which constituted more than half of all documented incidents, with rape, early and forced marriages, and female genital mutilation being “regularly reported”.55 While the UN peace keeping missions regularly include CPAs when relevant, the political missions by the UN Department of Political Affairs (DPA) more seldom had CPAs deployed and these missions have not prioritized child protection.

11.2.3.

The United Nations Secretary-General’s Country-Specific Reports on CAAC

Security Council resolution 1460 (2003) requested that all country-specific reports from the Secretary-General should include child protection issues, and this request has been repeated in resolutions 1539 (2004), 1612 (2005) and in 1882 (2009).56 In 2009 the Secretary-General came out with 75 country reports and of these 37.49 per cent included child protection, while in 2008 46 per cent of these reports included child protection, and in 2007 and 2006 about 38 per cent, and in 2005 43 per cent.57 The norm is to have a special section on child protection in some country-specific reports, which Nepal, Sudan, the DRC and 53 54 55 56 57

Security Council Report, Cross-cutting report, 2010 No. 1, 2 June 2010, p. 3 Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, S/2010/409, 30 July 2010, p. 10 Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, S/2010/409, 30 July 2010, p. 10 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 13 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 13

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Burundi reports have had, but many others do not have such separate sections. It has been shown that in countries which have peace-keeping missions that have child protection advisers (CPAs) and well-functioning child protection units, such as MONUC for DRC (now MONUSCO), UNMIS for Sudan and UNMIN for Uganda, the Secretary-General receives more information on the situation of children and therefore is able to include this information in his reports.58 The UNAMA for Afghanistan had just one CPA stationed and the UNAMI for Iraq still had no CPA employed as of June 2010.59 It seems that when there is an established focus on child protection within the peace-keeping and political missions, this also positively impacts the quality of information on CAAC provided to the Secretary-General and in turn influences his reports. 11.2.4.

Sexual Exploitation and Abuse Involving Minors by United Nations Peace-Keeping Personnel

Sexual exploitation and abuse allegations involving the civilian population by UN peace-keeping personnel, military, police and civilian staff is a continuous challenge which the UN has begun to keep track of. Since 2008 the UN has been tracking the age of the victims, as sexual exploitation and abuse of minors by UN peace-keeping personnel is also a continuous issue.60 As has been noted by the UN Office of Internal Oversight Services (OIOS) between 2008 and April 2011 of the 22 peace-keeping missions (including Monuc and Monusco) deployed in 16 of these missions there were allegations of sexual exploitation and abuse of the civilian population and in eight of these missions these allegations also involved minors while in 11 missions the age of the victim had not been identified. There have continuously been four peace-keeping missions that have been standouts in terms of sexual exploitation and abuse of minors with MONUC in DRC every year since 2008 having had the highest number of allegations of such abuse (73), and such abuse has not stopped with MONUSCO (while still at much lower levels). The other three are UNOCI, UNMIL and MINUSTAH, and in 2011 UNOCI for Côte d’Ivoire came in second with the highest “numbers of abuse (16), then UNMIL for Liberia (15), and then MINUSTAH for Haiti (8)”.61 The DPKO at the headquarters and its CPAs need to make sure that their work on children does 58 59 60

61

Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 13 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 13 UN Conduct and Discipline Unit, Statistics, Sexual Exploitation and Abuse Allegations Involving Minors, Year: 2008 to April 2011, http://cdu.unlb.org/Statistics/ SexualExploitationandAbuseAllegationsInvolvingMinors.aspx, accessed July 7, 2010 and April 19, 2011 UN Conduct and Discipline Unit, Statistics, Sexual Exploitation and Abuse Allegations Involving Minors, Year: 2008 to April 2011, http:11//cdu.unlb.org/Statistics/ SexualExploitationandAbuseAllegationsInvolvingMinors.aspx, accessed July 7, 2010 and April 19, 2011

The Work of the United Nations on Children and Armed Conflict

not get counteracted by the abusive conduct of some members in the peace-keeping missions. Sexual abuse of minors by UN peace-keeping personnel is not a new phenomenon. Graça Machel in her 1996 study reported that “[i]n 6 out of 12 country studies on sexual exploitation of children in situations of armed conflict prepared for the present report, the arrival of peace-keeping troops has been associated with a rapid rise in child prostitution”.62 She specifically mentioned that in 1992 after the signing of the peace agreement in Mozambique, when the UN peacekeepers, ONUMOZ, arrived girls between 12 and 18 years had been recruited into prostitution by some of the soldiers. 11.3.

The Work of the UNICEF in the Monitoring and Reporting Mechanism

The UNICEF’s work on MRM is conducted through its unit at the headquarters called the Monitoring and Reporting Mechanism (MRM) on Grave Violations against Children in Situations of Armed Conflict which is located within the Child Protection Emergency Section, and through the Humanitarian Policy Section and Advocacy Unit.63 The office of the MRM at the headquarters has a direct link to the UN country MRM task forces and the various child protection advisers (CPAs) in the field, and it is engaged in the day-to-day work regarding the MRM. The child protection emergency section is the policy headquarters of UNICEF, and while UNICEF has an overall child protection strategy the MRM is only one aspect of this strategy. In the Humanitarian Policy Section and Advocacy Unit about 60–70 per cent of the work is on the MRM, and this Unit prepares reports for the Security Council Working Group on CAAC. It is also the UNICEF headquarters that prepares the bi-monthly update of CAAC, the so called “horizontal note”, to the Security Council. The executive office of UNICEF is also part of the MRM. Since 2008 the work of the UNICEF on the MRM and child protection of CAAC has been about capacity building and implementation building of the mechanism within the organization. In the field UNICEF is always co-chairing the MRM country-task forces, either with the UN peace-keeping mission if present or the UN country team if there is no peace-keeping mission, and the MRM country-task forces are always a UN-led initiative. Some of the avenues for UNICEF to use the information it collects in the field is to refer the information 62

63

A/51/306, “Impact of armed conflict on children; Report of the expert of the Secretary-General, Ms. Graça Machel, submitted pursuant to General Assembly resolution 48/157”, 26 August 1996, para. 98, p. 31 The information in this section on the work of UNICEF and the MRM mechanism comes from Lara Scott, Child Protection Specialist, MRM, Child Protection Section, UNICEF, and Gary Risser, Office of Emergency Programmes, HPS/EMOPS, UNICEF, Interview, UNICEF, New York, August 20, 2010

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to different service providers, and/or establish a database, a tracking system that was established for the recruitment and use of child soldiers in Sri Lanka and for the abduction of children in Uganda. In Geneva in the summer of 2010 the UNICEF had a consultation where high-level members of the organization including the deputy director and the senior management participated, as well as UNICEF representatives from 19 different countries. This was a meeting about setting the standard policy of the organization regarding child protection, including addressing political issues and the MRM. In the context of the MRM, the issue was about: “Strategically what do you want to do?” One of the strengths of the UNICEF in the work of MRM is that UNICEF is always established in a particular context, and in countries such as Afghanistan, Colombia or Iraq where there is no UN peace-keeping mission, UNICEF still has a presence. Furthermore UNICEF builds capacity for child protection in countries that are mentioned in the annual report on CAAC of the Secretary-General. In order to build capacity on MRM different skills are needed for CAAC, and the MRM is funding, labour and resource intensive. Also, for instance in the case that MONUC/MONUSCO would leave DRC by 2011, UNICEF would still continue to be present, and the MRM would go on as it would still be within UNICEF’s mandate to continue this work, however if the peace-keepers would leave there could be security and capacity implications on the ground. Resolution 1882 helped to change the focus in the child protection unit, since the focus on sexual violence capacity in UNICEF is still very limited. Patterns of intentional killing and maiming require a different sophistication than the UNICEF can provide at the moment (in July 2010). As resolution 1882 was adopted in 2009, the organization was still in the early stages with the implementation of the resolution, and UNICEF was also in the very beginning of a process to find a way to collaborate with different public health institutes on how to document and technically work on these new kinds of abuses. The successes with the MRM from the perspective of UNICEF include that it is a long-term mechanism, and that it has given the different UN agencies and its partners a new role in child protection. Furthermore the 1612 MRM elevated CAAC to a different level, and as an organization UNICEF and the UN have a better picture of CAAC today than before. It has helped to mainstream some of these issues, as several UN agencies are to be involved in the MRM process. Children have been released from some armed forces and groups, as there has been an increased sensitivity of some armed groups about being on the list of the Secretary-General’s annexes. Since the monitoring and reporting that was conducted before resolution 1612 was not systematic and effective enough, resolution 1612 brought accountability to this kind of work. UNICEF means that the recommendations of the Security Council Working Group on CAAC, which the country task forces are to follow-up, are powerful tools because of the leverage the Security Council can have.

The Work of the United Nations on Children and Armed Conflict

Other strengths in having UNICEF in the MRM process is that UNICEF has many sectors that tap into the MRM such as UNICEF’s education sector and health sector. With regards to the six priority violations that shall be monitored and reported on within the MRM, for instance the violation regarding attacks on schools are related to the work of the UNICEF’s education sector. While the UNICEF views all six violations holistically and as equally important, the UNICEF having worked on several different child rights for many years that tap into the protection of children in armed conflict provides much potential to highlight violations that have not been so much focused on before and many different avenues for advocacy. Further, that the MRM is to be mainstreamed within the UN organization gives much potential to build a very strong capacity foundation for child protection of CAAC with so many different experiences and knowledge available among the different agencies. For instance, the violation of the denial of humanitarian access, one of the six priority violations, has really widespread consequences for huge numbers of children affected by armed conflict, which is the area where OCHA has much experience and which is a violation that has not been so much focused on. 11.4.

The Work of the United Nations Security Council on Children and Armed Conflict

At the United Nations the tools for the protection of children affected by armed conflict were built progressively, and the Security Council as the main international body responsible for international peace and security formally put the situation for children affected by armed conflict onto its agenda in 1998 and has since addressed the issue.64 It was France that took the initiative to put this issue onto the agenda of the Security Council, and by having CAAC in the Security Council, CAAC became an issue also linked to peace and security where the main focus has been on child soldiers.65 In a statement issued by the President of the Security Council (PRST) in June 1998, it was thus explicitly stated that: 66 …

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Fabien Fieschi, France’s former expert on the SCWG-CAAC, Interview, France Mission to the UN, New York, May 20, 2009; and Report of the Secretary-General, Children and Armed Confl ict, General Assembly A/58/546-S/2003/1053, 10 November 2003, para. 4 France’s Mission to the United Nations, France ONU, Enfants dans les confl its armés, p. 1 of 2, www.franceonu.org/spip.php?rubrique570, 2008-08-21; and Fabien Fieschi, France’s former expert on the SCWG-CAAC, Interview, France Mission to the UN, New York, May 20, 2009 United Nations, Security Council, S/PRST/1998/18, 29 June 1998

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The Security Council expresses its intention to pay serious attention to the situation of children affected by armed conflicts and, to this end, to maintain contact, as appropriate, with the Special Representative of the Secretary-General and with the relevant programmes, funds and agencies of the United Nations system. The Security Council, while dealing with situations of armed confl ict, expresses its readiness to consider, when appropriate, means to assist with the effective provision and protection of humanitarian aid and assistance to civilian population in distress, in particular women and children; to consider appropriate responses whenever buildings or sites that usually have a significant presence of children such as, inter alia, schools, playgrounds, hospitals, are specifically targeted; to support efforts aimed at obtaining commitments to put an end to the recruitment and use of children in armed conflicts in violation of international law; to give special consideration to the disarmament and demobilization of child soldiers, and to the reintegration into society of children maimed or otherwise traumatized as a result of an armed conflict; and to support or promote child-focused mine clearance and mineawareness programmes, as well as child-centered physical and social rehabilitation programmes. …

A series of Security Council resolutions on CAAC followed beginning in 1999, when the Security Council adopted for the very first time a resolution on waraffected children, resolution 1261, and here acknowledged children in armed conflict as a peace and security concern and condemned the recruitment and use of child soldiers.67 The SRSG-CAAC together with UN country teams and especially with the UN Resident Coordinators and UNICEF had since 1998 actively engaged in a systematic way to have leaders of parties to armed conflicts such as in Burundi, Colombia, DRC, Sierra Leone, Sri Lanka and the Sudan give commitments “not to target civilian populations, not to block access to populations in distress within their zones of control, not to interfere with the distribution of relief supplies, to observe humanitarian ceasefires for purposes of vaccination or supply of relief, not to attack schools or hospitals, not to use landmines and not to recruit or use children as soldiers”.68 The Security Council urged in resolution 1261 “all parties to armed conflicts to abide by the commitments made to ensure 67

68

United Nations Security Council Resolution 1261 (1999), S/RES/1261 (1999), 30 August 1999, Report of the Secretary-General, Children and armed confl ict, A/55/163S/2000/712, 19 July 2000, para. 1, also making reference to Security Council Resolutions 1265 (1999) and 1296 (2000) on the protection of civilians in armed conflict, and Report of the Special Representative of the Secretary-General for Children and Armed Confl ict, Protection of children affected by armed conflict, A/55/442, October 3, 2000, para. 19 Report of the Secretary-General, Children and armed confl ict, A/55/163-S/2000/712, 19 July 2000, para. 12

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the protection of children in situations of armed conflict” (para. 9). By 2003 the SRSG-CAAC had received from 15 parties to armed conflicts about 60 commitments, and these commitments included issues like child soldiers, landmines, humanitarian ceasefires, access and abductions.69 While the commitments gave the UN country teams and NGOs benchmarks for advocacy, monitoring and follow-up, and much experience in how to negotiate and receive commitments especially with regards to putting an end to the recruitment and use of child soldiers, many of the parties did not observe them.70 Some of the lessons learned early on were that it was a long-term process to enter into dialogues with different parties and that to gain their confidence was needed, that such dialogues “should take place, whenever possible, at all stages” of an armed confl ict, and that graduated and targeted pressure on the parties not honouring the commitments should be made and foremost by the Security Council, regional organizations and/or the governments involved as they possessed the “necessary influence”.71 The Security Council condemned in resolution 1261 (1999) the targeting of children in armed conflicts as well as urged all parties to an armed conflict to take special measures to protect especially girls from rape, sexual abuse and gender-based violence (paras. 2 and 10). In its subsequent resolution 1314 in 2000, the Security Council further developed the protection of children in armed conflict such as for states not to give amnesty for grave crimes committed against children, for states and parties to armed conflict to respect international humanitarian law and human rights law, that refugees and IDPs be protected and given assistance, that access for humanitarian personnel and to humanitarian assistance be unhindered, that the impact on children by the illicit trafficking in small arms and light weapons was of great concern, requesting that CAAC issues be included in peace agreements, that girls such as heads of households, orphaned, sexually exploited and child soldiers be given particular consideration, and welcoming the work of regional organizations on CAAC.72 The Council in resolution 1314 took into consideration the Secretary General’s 2000 report on CAAC which was the first report on CAAC presented to it by the Secretary-General.73

69 70 71 72

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Report of the Secretary-General, Children and armed confl ict, A/58/546-S/2003/1053, 10 November 2003, para. 74 Report of the Secretary-General, Children and armed confl ict, A/58/546-S/2003/1053, 10 November 2003, para. 75-76 Report of the Secretary-General, Children and armed confl ict, A/58/546-S/2003/1053, 10 November 2003, para. 77 Security Council Resolution 1314 (2000), August 11, 2000, para. 2-16 www.un.org/ Docs/scres/2000/00sc1314.htm; and Report of the Special Representative of the Secretary-General for Children and Armed Confl ict, Protection of children affected by armed conflict, October 3, 2000, A/55/442, para. 23, p. 6 Report of the Secretary-General, Children and armed confl ict, A/55/163-S/2000/712, 19 July 2000, and Report of the Special Representative of the Secretary-General for

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In the Security Council resolution 1379 of 2001 the idea of sanctions was introduced for the first time in the context of children and armed conflict as well as the establishment of a mechanism that would list those parties to a conflict that recruit and use child soldiers.74 The Security Council requested the UN SecretaryGeneral “to attach to his report a list of parties to armed conflict that recruit or use children in violation of the international obligations applicable to them, in situations that are on the Security Council’s agenda or that may be brought to the attention of the Security Council by the Secretary-General, in accordance with Article 99 of the Charter of the United Nations, which in his opinion may threaten the maintenance of international peace and security”.75 Here at first the Secretary-General would only list parties to situations already on the agenda of the Security Council but the list would include both state and non-state parties to a conflict. The criteria for having parties listed encompassed “(a) only those current armed conflict situations of which the Security Council was seized at the time of writing of the report; (b) identifiable parties to such a conflict; and (c) those parties that continue to recruit or use children in violation of international obligations applicable to them”.76 As a result, the Secretary-General named for the first time in his 2002 annual report on CAAC 23 parties in five conflict situations already on the agenda of the Security Council which were Afghanistan, Burundi, the DRC, Liberia and Somalia.77 Furthermore resolution 1379 urged the member states to end impunity by prosecuting those found responsible for having committed genocide, crimes against humanity, war crimes, and other egregious crimes against children, and that amnesty provisions should be excluded for these types of crimes committed against children, and that CAAC issues be included in truth and reconciliation mechanisms (para. 9(a)). In 2003, in resolution 1460, the Security Council for the first time mentioned action plans and expressed its intention “to enter into dialogue … or to support the Secretary-General in entering into dialogue with parties to armed conflict in violation of the international obligations applicable to them on the recruitment or use of children in armed conflict, in order to develop clear and time bound

74

75 76 77

Children and Armed Confl ict, Protection of children affected by armed conflict, October 3, 2000, A/55/442, para. 22, p. 6 France’s Mission to the United Nations, France ONU, Enfants dans les conflits armés, p. 1 of 2, www.franceonu.org/spip.php?rubrique570, 2008-08-21, and www. franceonu.org/spip.php?article3841/3849; and United Nations Security Council Resolution 1379 (2001), S/RES/1379 (2001), 20 November 2001 United Nations Security Council Resolution 1379 (2001), S/RES/1379 (2001), para. 16 Report of the Secretary-General on children and armed conflict, S/2002/1299, 26 November 2002, para. 29 Report of the Secretary-General on children and armed confl ict, S/2002/1299, 26 November 2002, para. 32, and Annex

The Work of the United Nations on Children and Armed Conflict

action plans to end this practice”.78 The Security Council also expressed “its intention to consider taking appropriate steps to further address this issue … if it deems that insufficient progress is made” making reference to the UN Charter and SC resolution 1379 (2001) further laying the ground for sanctions with regards to violations against children in armed conflict.79 In resolution 1460 the Security Council in addition requested that the situations not on the agenda of the Council also be included in the lists annexed to the annual report in CAAC by the SG, asking him to “taking into account the parties to other armed conflicts that recruit or use children” making reference to paragraph 16 of SC resolution 1379 (2001) where the Secretary-General was requested to provide a list of parties to his annual report on CAAC that recruit or use children in situations on the agenda of the Council and that also refers to that the SG can bring to the attention of the Security Council other situations that “may threaten the maintenance of international peace and security” as is stated in Article 99 of the UN Charter.80 Resolution 1460 also requests the SecretaryGeneral to provide suggestions on how “to ensure monitoring and reporting in a more effective and efficient way within the existing United Nations system on the application of the international norms and standards for the protection of children in situations of armed confl ict in all its various aspects”.81 Further, the Secretary-General was requested to include a section on CAAC “as a specific aspect of the report” in every country situation report to be submitted to the Security Council by him (para. 15).82 In his lists of parties the Secretary-General makes a distinction between those parties that recruit or use children in situations of armed conflict that are on the agenda of the Security Council (Annex I), and those situations of armed conflict that are not on the agenda of the Security Council (Annex II). It is the Office of the SRSG on CAAC that is responsible for the listing of the parties, and 78

79

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81 82

United Nations Security Council Resolution 1460 (2003), S/RES/1460 (2003), 30 January 2003, para. 4; and France’s Mission to the United Nations, France ONU, Enfants dans les conflits armés, p. 1 of 2, www.franceonu.org/spip.php?rubrique570, 2008-08-21, and www.franceonu.org/spip.php?article3841/3849 United Nations Security Council Resolution 1460 (2003), S/RES/1460 (2003), 30 January 2003, para. 6; and France’s Mission to the United Nations, France ONU, Enfants dans les conflits armés, p. 1 of 2, www.franceonu.org/spip.php?rubrique570, 2008-08-21, and www.franceonu.org/spip.php?article3841/3849 Security Council Resolution 1460 (2003), S/RES/1460 (2003), 30 January 2003, para. 16 (a), and Report of the Secretary-General, Children and armed confl ict, A/58/546S/2003/1053, 10 November 2003, Annex II Security Council Resolution 1460 (2003), S/RES/1460 (2003), 30 January 2003, para. 16 (c) This was stronger wording than in resolution 1379, where the Secretary-General was asked “to continue to include in his written reports to the Council on conflict situations his observations concerning the protection of children and recommendations in this regard” (para. 14).

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the “[m]onitoring lists are not intended to name countries as such; the purpose is to identify particular parties to conflicts that are responsible for specific grave violations against children. In this respect, the names of countries are cited only in order to indicate the locations or situations where the offending parties are committing the violations in question.”83 With the early discussions on whether to both have an Annex I and II, the thought was to work with Annex I first and then Annex II, which was the way the MRM worked at first and which was a compromise accepted by the Chinese delegation which was outwardly most wary about the addition of an Annex II.84 The Chinese delegation did not see a problem with Annex I, since the situations were already on the agenda of the Security Council. However, the Annex II to the Secretary-General’s annual report creates the most problems, because of a concern by states, like China and Russia, that those countries that are not on the formal agenda of the Security Council can get onto the agenda through the Annex II route.85 China does not want the number of countries on the formal agenda of the Security Council to necessarily increase. The UN and especially the Security Council are to protect the sovereignty of its member states, and with regards to Annex II the issue of sovereignty comes into play.86 For instance China likes to retain control over which country comes under the scrutiny of the Security Council. Many member states do not like to have human rights on the Security Council, or to come up on the Security Council, arguing against the proposed link between security and human rights and that the Human Rights Council is the more appropriate forum for such discussion; partly because consideration of human rights may become a credibility issue for them.87 The UK takes the approach towards the two different annexes derived from the universality of human rights and means that because of the universality of human rights one can not only have Annex I and not Annex II, as it is unacceptable to acknowledge human rights violations in one place, but not in another place.88 While China for instance argues that the Security Council should only deal with situations that are on the formal agenda of the Council, this is a continuous issue. 83 84 85 86 87 88

Report of the Secretary-General, Children and Armed Confl ict, A/59/695-S/2005/72, 9 February 2005, para. 93 and 97 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK Mission to the UN, New York, May 20, 2009, and follow-up May 2011 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 6 of 9 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011

The Work of the United Nations on Children and Armed Conflict

The universality approach breaks with what some other Council members deem important, such as China that regularly argues against considering human rights issues in the context of the Security Council.89 The universality approach would force the automaticity of action, for instance in the context of the “Responsibility to Protect” principle, the R2P, and the Council would have to act.90 In this context some member states want to retain the prerogative to be able to say no. The member states of the UN have different perspectives on how they view non-state actors, and whether they want to engage with these actors. One issue is how governments are labelling non-state actors, and some argue that they do not want to engage with terrorists.91 For instance, Colombia is very concerned that consideration of its country situation by the CAAC Working Group might imply comparison with dysfunctional states on the Council’s formal agenda, besides concern about infringement of its national sovereignty and coming under Security Council consideration. As a result, Colombia is working hard to remove itself from consideration by the Security Council.92 Sri Lanka, whilst also concerned to be a subject of Security Council consideration, accepted the proposition that it is not the country that is listed but the armed groups. As the Sri Lankan government considered the LTTE as a terrorist organization, Sri Lanka agreed

89 90

91 92

Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 The Responsibility To Protect Principle, R2P, which 150 governments were endorsing unanimously at the UN World Summit in 2005, entails for the international community to “coercively intervening in a country against the express will of its government” to provide protection to a population from “genocide, war crimes, ethnic cleansing and crimes against humanity” committed intentionally by the government against its population. As Gareth has argued the principle to protect is only to be invoked by an UN Security Council resolution that allows for the use of force as a last resort after all other actions have been taken that could have prevented the government from committing mass atrocity crimes (not for natural disasters or of Hiv/Aids). There is much controversy regarding this issue at the UN, with some UN member states being reluctant to the implications of this principle, as they mean that the principle infringes on their sovereignty. However there is also much attention given to the R2P, as the need for actively protecting a population under certain circumstances has been acknowledged: Taken from Comment by Gareth Evans on Burma/ Myanmar and R2P, “Facing Up to Our Responsibilities”, Gareth Evans in The Guardian, the International Crisis Group, New Comment, May 12, 2008, see also http://www.guardian.co.uk/commentisfree/2008/may/12/facinguptoourresponsibilities Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011

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with the Security Council on the listing of the LTTE.93 Both nations however retain reservations therefore on any contact action with the listed armed groups. For the United Kingdom and Russia one issue has been that they have both been listed in Annex II, and therefore this practice has been of direct concern to them.94 In the Secretary-General’s annual report on CAAC in 2002, it was noted in the body of the report that paramilitaries continued recruiting and using children in Northern Ireland, and the insurgency groups in Chechnya continued enlisting children and were using the children to have landmines and explosives planted.95 Northern Ireland as well as Chechnya were listed in Annex II in the annual report on children and armed conflict by the Secretary-General in 2003.96 For the Republic of Chechnya of the Russian Federation, Chechen insurgency groups were listed and for Northern Ireland paramilitary groups were listed. In a Corrigendum to the Secretary-General’s annual report of 2003, Russia made sure that the text be changed to state that in Chechnya “there is not an armed confl ict within the meaning of the Geneva Conventions and the Additional Protocols thereto”.97 In the following annual report of the Secretary-General, which was issued first in 2005, the parties in Northern Ireland and Chechnya were de-listed. Some of the non-state actors listed in the annexes have offices in New York, such as the LTTE. Although the US criminalizes the breaches of recruitment, one could still see LTTE members in the audience in public forums of the UN Security Council paying close attention to the SC’s new strategies to combat recruitment of children.98 11.5.

The United Nations 1612 Monitoring and Reporting Mechanism

It became increasingly clear that there was also a need at the United Nations to have a more systematic and coherent mechanism for monitoring and reporting on the violations of children’s rights at the country level.99 In resolution 1539 (2004) the Security Council had made specifically clear that at the country level 93 94 95 96 97 98 99

Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 6 of 9 Report of the Secretary-General on children and armed conflict, S/2002/1299, 26 November 2002, para. 41 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 6 of 9 Report of the Secretary-General, Children and armed confl ict, Corrigendum, A/58/546/Corr.2-S/2003/1053/Corr.2, 19 April, 2004 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. mission to the UN, New York, May 20, 2009, and follow-up September 2011 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005

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the UN peacekeeping missions and the country teams were to have the “primary responsibility” to follow-up on all the Security Council resolutions concerning children and armed conflict.100 The UN field representatives did only in a small number of cases enter into dialogues with parties to conclude action plans to halt the recruitment and use of children as child soldiers as called for in resolution 1539, and it was clear that without a systematic mechanism on how to collect the information and what to do with the information, this was an ineffective approach.101 There were several problems in gathering the information, such as security problems and lack of cooperation by both the governments and the nonstate groups. Security Council resolution 1539 (2004) in paragraph 2 requested that the Secretary-General would prepare an action plan to establish a monitoring and reporting mechanism together with UN agencies, regional organizations, NGOs and representatives from civil society. The action plan for the establishment of the monitoring and reporting mechanism, the MRM, was presented in the UN Secretary-General’s annual report on the situation of children in armed conflict in 2005.102 Subsequently in resolution 1612 (2005) the Security Council requested the Secretary-General to implement the mechanism (para. 3):103 Requests the Secretary-General to implement without delay, the abovementioned monitoring and reporting mechanism, beginning with its application, within existing resources, in close consultation with countries concerned, to parties in situations of armed conflict listed in the annexes to the Secretary-General’s report (S/2005/72) that are on the agenda of the Security Council, and then, in close consultation with countries concerned, to apply it to parties in other situations of armed confl ict listed in the annexes to the Secretary-General’s report (S/2005/72).

According to paragraph 2 of resolution 1612 (2005), the purpose of the MRM mechanism is to in a systematic way: 100 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, para. 3 101 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, para. 4 and 5, and Security Council Resolution 1539 (2004), S/RES/1539 (2004), para. 5 (a)-(b) 102 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, III. Action plan for the establishment of a monitoring, reporting and compliance mechanism, p. 14; The annual report referred to the different proposals that had been presented regarding the establishment of a monitoring and reporting mechanism, the many discussions thereto, and the Report of the Secretary-General “Comprehensive assessment of the United Nations system response to children affected by armed conflict” (A/59/331, 3 September 2004), para. 59 103 United Nations Security Council Resolution 1612, S/RES/1612 (2005), 26 July, 2005

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(a)

(b)

(c)

(d)

… collect and provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict, and the mechanism will report to the working group to be created in accordance with paragraph 8 of this resolution; Underlines further that this mechanism must operate with the participation of and in cooperation with national Governments and relevant United Nations and civil society actors, including at the country level; Stresses that all actions undertaken by United Nations entities within the framework of the monitoring and reporting mechanism must be designed to support and supplement, as appropriate, the protection and rehabilitation roles of national Governments; Also stresses that any dialogue established under the framework of the monitoring and reporting mechanism by United Nations entities with non-State armed groups in order to ensure protection for and access to children must be conducted in the context of peace processes where they exist and the cooperation framework between the United Nations and the concerned Government.

Resolution 1612 also established the Security Council Working Group on children in armed conflict. All member states of the Security Council, permanent and non-permanent, are members of the Working Group. The MRM reports to the Working Group, and the objective of the Working Group is to review the reports of the MRM, review progress regarding action plans, make recommendations to the Security Council on measures that can be taken to improve the protection of children in armed conflict as well as to address requests to other United Nations bodies in order for them to support the implementation of the 1612 SC resolution.104 More specifically the Working Group shall in paragraph 8:105 (a)

(b)

Make recommendations to the Council on possible measures to promote the protection of children affected by armed conflict, including through recommendations on appropriate mandates for peacekeeping missions and recommendations with respect to the parties to the conflict; Address requests, as appropriate, to other bodies within the United Nations system for action to support implementation of this resolution in accordance with their respective mandates.

In-country task forces on monitoring and reporting were to be established as a result of the Security Council adopting resolution 1612 in 2005 in order to have the new monitoring and reporting mechanism established, and the UN chose seven country situations which were to serve as pilot cases and where the first

104 United Nations Security Council Resolution 1612, S/RES/1612 (2005), para. 8 105 United Nations Security Council Resolution 1612, S/RES/1612 (2005), para. 8

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in-country task forces on MRM were to be set up.106 These first seven country situations were taken from the two annexes to the 2005 annual report on CAAC of the SG, and they were from Annex I: Burundi, Côte d’Ivoire, DRC, Somalia and Sudan, and from Annex II: Nepal and Sri Lanka which agreed to be selected.107 The governments of situations listed in Annex II must agree to have a MRM country task force established, and Sri Lanka was the country situation that was the first case of the Working Group not on the agenda of the Security Council as Sri Lanka was the first country in Annex II to volunteer to have a MRM country task force put in place as well as to have a discussion in the Working Group.108 The United Nations Secretary-General in his annual report on children and armed conflict of 2005, stated that task forces on monitoring and reporting should be established in all those countries where children are affected by armed conflict.109 These country task forces should use the existing child protection networks already in the field. A country task force is to function as both the locus and the focus of action; be responsible for determining the division of labour; coordinating the gathering of information on the ground; vetting and confirming the accuracy of information received; integrating and providing quality control for the information received; providing feedback to local communities and civil society organizations; providing guidance and training in methodology, as well as in ethical and security matters, to information gatherers; making determinations on practical and political constraints, with recommendations to Special Representatives of the Secretary General or resident coordinators, as necessary; and preparing the monitoring and compliance country reports.110

When a peacekeeping mission is stationed in a country it is the Deputy Special Representative of the Secretary-General and a representative of the UNICEF that is to coordinate and co-chair the country task force.111 In this case it is the Deputy Special Representative that is to report to the Special Representative of 106 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 3 107 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 3 108 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 109 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 80 110 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 83 111 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 83

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the Secretary-General on CAAC. In the case that there is no peacekeeping mission, then the task force is to be chaired by a representative of UNICEF, and then it is to the resident coordinator that this representative is to report to instead.112 The information collected within the MRM is to result in actions that are in accordance with the international and national norms on protection for children and armed conflict in order to positively change the situation for the children.113 These norms constitute the standards that have been agreed upon internationally and nationally as relating to child protection in armed conflict. The standards at the international level encompass the Convention on the Rights of the Child (1989), its Optional Protocol on the Involvement of Children in Armed Conflict (2000), the Rome Statute of the International Criminal Court (1998), the International Labour Organization (ILO) Convention 182 (1999), the African Charter on the Rights and Welfare of the African Child (1999), the Geneva Conventions (1949) and their two Additional Protocols (1977), and Security Council resolutions 1261 (1999), 1314 (2001), 1379 (2001), 1460 (2003) and 1539 (2004).114 A second standard level is national legislation as well as those commitments that a government and other parties have agreed to fulfil regarding the protection of children in a conflict situation. Another standard are peace accords that include commitments regarding children, like the 1998 Good Friday Agreement on Northern Ireland, the 1999 Lomé Peace Agreement on Sierra Leone, the 2000 Arusha Peace and Reconciliation Agreement for Burundi and the 2003 Accra Peace Agreement on Liberia.115 Finally the report states that traditional norms existing in the different societies may also be used as established standards in terms of protection of children in armed conflict situations (para. 73). It was clearly stated in the Secretary General’s report of 2005 that the mechanism should function at three main levels, such as: “information gathering, coordination and action at the country level; coordination, scrutiny and integration of information and preparation of reports at the Headquarters level; and concrete actions to ensure compliance, to be taken particularly by bodies that constitute “destinations for action””.116 In his 2005 report the Secretary-General identified “the key “destina-

112 113 114 115 116

Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 83 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 65 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 70 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 72 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 67

The Work of the United Nations on Children and Armed Conflict

tions for action”” which include national governments, the Security Council, the General Assembly and the International Criminal Court (ICC).117 The Secretary-General’s report of 2005 specifically makes clear that “all parties” to a conflict are to be monitored so that their behaviour can be changed to comply with international and national child protection instruments and norms, that is the behaviour of both governments and non-state armed actors.118 Further, how the international peacekeeping and humanitarian personnel are behaving is in addition to be included in the monitoring and reporting process. Importantly as was noted in the report all the parties to an armed conflict have responsibilities according to the noted international and national child protection instruments and norms. In today’s mainly internal confl icts, and since the behaviour and actions of all parties have severe consequences for the situation of children as well as the rest of the population, the SG in his 2005 report stipulates that it has become a necessity to be able to enter into dialogue with all the parties irrespective of having to consider the political or legal status of the different parties.119 To this regard the UN Security Council Resolution 1612 (2005) clearly stipulates in the preamble that: the present resolution does not seek to make any legal determination as to whether situations which are referred to in the Secretary-General’s report are or are not armed conflicts within the context of the Geneva Conventions and the Additional Protocols thereto, nor does it prejudge the legal status of the non-State parties involved in these situations.

This is not without controversy, as many governments do not want to legitimize non-state actors, and addressing non-state actors is a continuous challenge for the Security Council Working Group on CAAC. The UN monitoring and reporting mechanism looks like:120

117

Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 107: See also Security Council Working Group on Children and Armed Conflict Toolkit. 118 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 74 119 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 75 120 This chart is taken in full from “Structure of the Monitoring and Reporting Mechanism in the Security Council”, Save the Children UK, Can the powerful protect? How the UN Security Council needs to shape up to protect children, Anna Jefferys, 2007, p. 8

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Country task forces are set up in-country, made up of UN agencies, NGOs and civil society groups. These gather, vet and integrate information and provide reports detailing grave violations against children to the SRSG/RC. Every two months two country-level task forces issue comprehensive reports. The SRSG/ RC sends these reports to the OSRSG/CAC’s office. UN field teams, with the SRSG and the RC as focal points, follow-up, co-ordinate and monitors the above reports.



At HQ the steering committee of the Taskforce on children and armed conflict, co-chaired by the OSRSG/CAC and UNICEF (with OCHA, DPKO, UNHCR and OHCHR) meets bi-monthly to review overall progress in monitoring and reporting and the reports from the country-level taskforces. The OSRSG meets informally with NGOs every two months for their input. The report on egregious violations against children in situations of armed confl ict becomes an informal information report from the Secretary-General.



All information is consolidated into an official report from the SecretaryGeneral and is published as a Security Council document.



This report will be presented to the Security Council working group on children and armed conflict, which is made up of all Council members and has a chair. The chair of the working group on children and armed conflict presents the recommendations for action to the Security Council for formal endorsement. It will also consider any recommendations for action to be taken at their next meeting.

The 1612 MRM is not the end of the road, but a very important step and a very bold step.121 It was extremely innovative and remains so in terms of the work and doings of the Security Council and the UN. The core MRM violations were something very new, to have human rights in the Security Council was a big development. Furthermore, to have situations not on the agenda of the Security Council was something extremely strange within the system.122

121

Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 122 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009

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During the fall of 2006 there was much debate at the UN on how to implement the 1612 resolution.123 Up until then there had been a new resolution every year on CAAC and some including UNICEF had the idea that every year there should be a new Security Council resolution on CAAC. However for resolution 1612 one needs to implement it for the whole UN and not only for the Security Council, and therefore the focus has been on the implementation of resolution 1612.124

11.5.1.

The Legal and Normative Framework for the MRM and Its Six Priority Violations

The legal and normative framework for the work of the UN on CAAC encompasses a number of international legal documents on human rights and international humanitarian law, case law from international criminal tribunals and Security Council resolutions. They include:125 International Humanitarian Law The four Geneva Conventions of 1949 Additional Protocols I and II to the Geneva Conventions (1977) The Rome Statute of the International Criminal Court of 1998 Customary International Humanitarian Law

123

Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 124 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 125 This set-up has been taken from Office of the Special Representative of the Secretary-General on Children and Armed Confl ict, Working Paper No. 1, The Six Grave Violations Against Children During Armed Conflict: The Legal Foundation, October 2009, p. 4: It is only state parties that have signed, ratified or otherwise acceded to an international treaty that are legally bound by that treaty, but “customary international law is universally binding”, and “[c]ustomary international law is formed by a general practice accepted as law. Together with treaty law and general principles of law, custom is one of the primary sources of international law (see Article 38, Statute of the International Court of Justice). For example, the laws of war were long a matter of customary law before they were codified in the Geneva Conventions and other treaties”, p. 19: See also Report of the Secretary-General, Children and armed conflict, A/59/695-S/2005/72, 9 February, 2005, para. 70: this report added the ILO Convention 182 on the Worst Forms of Child Labour (1999) and the African Charter on the Rights and Welfare of the African Child (1999) (para. 70) not exhaustive, as well as national legislation (para. 71); Security Council resolution 1998 (2011) has been added by author to this protective legal framework.

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International Human Rights Law The Convention on the Rights of the Child (1989) and its two Optional Protocols (2000) The Universal Declaration of Human Rights (1948) The International Covenant on Civil and Political Rights (1966) The International Covenant on Economic, Social and Cultural Rights (1966) Regional Human Rights Instruments International Jurisprudence Case-Law of the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR) Case-Law of the Special Court for Sierra Leone The Rome Statute of 1998 and Case-Law of the International Criminal Court Case-Law of the International Court of Justice The Security Council Resolutions on Children in Armed Conflict 1261 (1999), 1314 (2000), 1379 (2001), 1460 (2003), 1539 (2004), 1612 (2005), 1882 (2009), 1998 (2011)

With this normative framework as a foundation the UN Secretary-General has identified six grave violations of children’s rights that are to be given priority under the monitoring and reporting mechanism.126 These six violations were given special priority as they represent particularly “egregious” violations and since it is possible to practically monitor them, and they are:127 (a) (b) (c) (d) (e) (f)

Killing or maiming of children; Recruiting or using child soldiers; Attacks against schools or hospitals; Rape and other grave sexual violence against children; Abduction of children; Denial of humanitarian access for children.

As has been noted by the Office of the SRSG on children and armed conflict, all of these six grave violations against children in armed conflict can amount to:128

126 Report of the Secretary-General, Children and armed confl ict, A/59/695-S/2005/72, 9 February, 2005, para. 68 127 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, para. 68 128 Office of the Special Representative of the Secretary-General on Children and Armed Conflict, Working Paper No. 1, The Six Grave Violations Against Children During Armed Confl ict: The Legal Foundation, October 2009, p. 17

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– – – –

A grave breach of the Geneva Conventions and their Additional Protocols A violation of customary norms of international law A violation of obligations contained in the Convention on the Rights of the Child and other international and regional human rights treaties A war crime or crime against humanity under the Rome Statute.

Furthermore the Office of the SRSG on children and armed conflict has stated that the “perpetrators of these Six Grave Violations, and their commanders and political leaders, have been and will continue to be held accountable for their crimes”:129 – –

Under national laws and military codes of justice Under international criminal law, and by the International Criminal Court.

The Secretary-General reports on all six violations in his annual report on children and armed conflict. In the preparation for the annual reports the Task Force on Children and Armed Conflict at Headquarters, country-level task forces on monitoring and reporting, peacekeeping and political missions and United Nations country teams, and concerned member states and NGOs are all part of the consulting process. For instance for the annual report of 26 March 2009, the main sources of information were the UN MRM country task forces, the UN peacekeeping and political missions, and the UN country teams.130 Furthermore, it is the duty of the country-level task forces on monitoring and reporting to continue the monitoring of those parties that have been de-listed as to make sure that children are not being re-recruited by the group.131 This will now be extended to include parties that have been listed to engage in killing and maiming of children and/or rape and sexual violence of children, and in attacks against schools and/ or hospitals and/or related protected persons. It was only the recruitment and use of child soldiers that would get a party on the lists annexed to the annual reports of the Secretary-General, but with SC resolutions 1882 (2009) and 1998 (2011), the killing and maiming of children, rape and other sexual violence of children as well as attacks against schools and/or hospitals and/or protected persons will also get a party onto these lists. Furthermore it was also only the recruitment and use of child soldiers that would result in the establishment of a monitoring and reporting country task force in a country, but the killing and maiming of children, rape and other sexual vio129 Office of the Special Representative of the Secretary-General on Children and Armed Conflict, Working Paper No. 1, The Six Grave Violations Against Children During Armed Confl ict: The Legal Foundation, October 2009, p. 17 130 Children and armed conflict, Report of the Secretary-General, A/63/785-S/2009/158, 26 March 2009, para. 4 131 Children and armed conflict, Report of the Secretary-General, A/63/785-S/2009/158, 26 March 2009, para. 9

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lence of children and attacks against schools and/or hospitals and/or protected persons will also do this now. As before, it is situations that are on the agenda of the Security Council and thus listed in the Annex I that will automatically get a monitoring and reporting mechanism task force established.132 In the case of those situations not on the agenda of the Security Council and listed in Annex II, a monitoring and reporting mechanism task force will only be established in situations where the government in question voluntarily gives its consent to this. Before the adoption of resolution 1882 (2009) there were many discussions within the Security Council on whether all six categories of violations would get a violating party onto the Secretary-General’s lists annexed to his reports before a decision was taken on whether to expand the violations to get a party onto the lists.133 In order to be able to expand the categories for groups to be placed on the lists in the annexes of the SG’s reports, a Security Council resolution is required.134 Some argued that only sexual violence should get parties onto the lists, while other member states would have liked to include all six categories. However, one reason as to why not all six violations have become triggers for parties engaging in such behaviour to be listed is because of the concern that if the MRM mechanism is expanded to include all six violations it would all fall apart, and that the protection of children in armed conflict would be an empty argument and an unachievable ideal.135 In the 2009 negotiations about the expansion of triggers all member states of the SC Working Group agreed to expand the triggers to include rape and sexual violence against children and the killing and maiming of children, however it was agreed not to expand to all the six violations as identified by the Secretary-General, as it was not considered as practically feasible at this stage.136 France was also open to the idea of expanding the mechanism to include all the six violations, however there was much concern with what is achievable, including the acceptance of this expansion by new member states on the Council, as well as the position of China and Russia, and whether the capacity of the system to feed into the reports for the Security Council would be able to be 132

133 134

135 136

Watchlist and the Coalition to Stop the use of Child Soldiers, The Security Council and Children and Armed Conflict: Next Steps towards ending violations against children, January 2008, p. 7 Security Council Report, Update Report No. 2, Children and armed confl ict, 14 July 2008, p. 2 of 3 See for instance Security Council Report, Update Report No. 2, Children and armed conflict, 14 July 2008, p. 2 of 3; and the Permanent Mission of Germany to the United Nations, New York, Chairmanship of the Working Group on Children and Armed Conflict, www.new-york-un.diplo.de/Vertretung/newyorkvn/en/05/ Children_20in_20Ar... Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011

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operational to deal in a precise way with all of these violations.137 Another practical issue to consider was the increased work load of the Working Group that the expansion of the lists to include all six categories would entail. After much discussion and considering the fact that many children in armed conflict situations are subjected to killing and maiming and rape and sexual violence, the Security Council making reference to paragraph 16 of resolution 1379 (2001) in its resolution 1882 (2009) expanded the triggers and requested the Secretary-General to also “include in the annexes to his reports on children and armed conflict those parties to armed conflict that engage, in contravention of applicable international law, in patterns of killing and maiming of children and/or rape and other sexual violence against children, in situations of armed conflict, bearing in mind all other violations and abuses against children.”138 The SRSG-CAAC had been advocating to expand the “lists of shame” to include those groups that exposed children in conflict situations to all manner of violence especially sexual violence.139 The UN is according to resolution 1882 (2009) to employ the same method for rape and grave sexual violations of children and the killing and maiming of children as the UN does for child recruitment and use, as the Security Council called upon “those parties listed in the annexes of the Secretary-General’s report on children and armed conflict that commit, in contravention of applicable international law, killing and maiming of children and/or rape and other sexual violence against children, in situations of armed conflict, to prepare concrete timebound action plans to halt those violations and abuses”.140 France was supportive already in 2008 of the inclusion of rape and sexual violence against girls.141 For instance some feared what the consequences would be from including the killing and maiming of children, which are very grave violations, as triggers. There is a difference in nature between the crimes in terms of intent as sexual violence is not committed by accident and unintentionally.142 The issues involved with proving intent or the unintentional killing and maiming, including taking into account the proportionality principle, are going to be

137

Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 138 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 4, p. 2; and Security Council, Resolution 1882 (2009), S/RES/1882 (2009), para. 3 139 UN News Service, Some 250.000 children worldwide recruited to fight in wars – UN official, January 30, 2008, www.un.org 140 Security Council, Resolution 1882 (2009), S/RES/1882 (2009), para. 5 (b) 141 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 142 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009

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challenging to address.143 In this context one needs to ask questions such as: can a school ever become a legitimate objective? It is at times difficult to prove that the killing and maiming of children was intentional, however on the other hand it would send a strange message in cases where children have been killed and maimed to not include these violations, because it might convey a message that it is acceptable to kill children, as they were part of what is militarily termed “collateral damage”.144 France supported the two new triggers rape and sexual violence and the killing and maiming of children from early on and already on the day of the Security Council annual meeting on CAAC on 29 April 2009 France was ready to make a decision to expand the triggers with the two new violations.145 But there was at least one other country that had a problem with the expansion and could not accept it at the time, but that country was very much isolated and needed to be given more time to accept the change and a resolution later in the summer of 2009 was expected. With regards to the discussion on the expansion of the triggers in 2009, the US worked very hard to find appropriate and accurate text that all could accept.146 The US along with the US Department of State (DOS) and Defense (DOD) were very favourable to the idea of including both the killing and maiming of children and rape and sexual violence as triggers.147 At the annual meeting of the Working Group on CAAC on 29 April 2009 there was a debate about the inclusion of lists of parties that commit these violations, and it was expected that the issue would be decided in July 2009 that the parties that committed these two violations would be put on the lists of the annual report on CAAC of the SG and to see action taken in that parties were expected to make commitments and establish action plans to end the practice of these violations and that there should be a MRM on these violations as well.148 As the Council lead on the broader agenda of Protection of Civilians, the UK is keen to ensure that the MRM on CAAC fulfils its full potential, and that by expanding the MRM-CAAC it will become a protection mechanism.149 143 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 144 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 145 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 146 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 147 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 148 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 149 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011

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Mexico meant that there was a need to consider how the expansion of the two triggers, rape and sexual violence against children and the killing and maiming of children, would change the work of the Working Group and that one needed to ask how these expansions would be implemented in the end.150 All members of the Security Council expressed support to expand these two violations and many UN member states supported the expansion as an idea.151 However Mexico meant that there needed to be a discussion in detail on how to do it, so that the Working Group would not end up going backwards instead. Issues such as what the real consequences would be as a result of the expansion of these triggers needed to be addressed, that new groups will be targeted with the expansion needed to be taken into consideration, and the fact that while there was much support for the expansion some UN member states were not so enthusiastic about it.152 For instance sexual violence not linked to an armed conflict will be on the agenda of other agencies and not on the agenda of the Working Group on CAAC. The US had been concerned that groups that were de-listed, like in Côte d’Ivoire, because they no longer recruited and used child soldiers, still engaged in some of the other five violations of children such as rape and sexual violence, and this was an important reason why the US wanted to expand the triggers.153 Once a party was de-listed there would be no more reports, not even one followup report, as it was only the recruitment and use of children that allowed the SG to keep a country situation on the list, which would trigger an MRM country task force. Although all six violations were to be reported on, since recruitment and use of children was the only “hook” and the country state and non-state actors proved that such actions ceased, and other violations continued, they were still de-listed.154 One example was Côte d’Ivoire, which was delisted, while the same groups that had reportedly stopped recruiting and using child soldiers still committed rape and sexual violence but were de-listed because these crimes were not part of the MRM.155 Such de-listing turns away the focus on these groups. Côte d’Ivoire was de-listed from Annex I as it was reported and verified that neither the government armed forces nor any armed groups recruited and used child soldiers. This was a case where the listing of the armed parties in the Annex 150 Roberto DeLeón and Rodrigo A. López Tovar, Mexico’s former experts on the SCWG-CAAC, Interview, UN Headquarters, New York, May 20, 2009 151 Roberto DeLeón and Rodrigo A. López Tovar, Mexico’s former experts on the SCWG-CAAC, Interview, UN Headquarters, New York, May 20, 2009 152 Roberto DeLeón and Rodrigo A. López Tovar, Mexico’s former experts on the SCWG-CAAC, Interview, UN Headquarters, New York, May 20, 2009 153 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 154 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 155 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011

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I and the subsequent entering into dialogues and committing to action plans paid off as the child soldiers were released. However, as was pointed out concerns remained in Côte d’Ivoire as rape and sexual violence were well-known to be carried out by several actors, and if they were de-listed from the Secretary-General’s annex the spotlight on them would be gone since at the time (May 2009) it was not possible for the Secretary-General to include parties who committed rape or sexual violence against children in his annexes.156 This was a very important point, which to a certain degree was remedied by the Security Council resolution 1882 of August 2009. But in the Secretary-General’s annual report on CAAC of 2010 no parties from Côte d’Ivoire were listed in his annex even as the SG in his report states that in Côte d’Ivoire “rape and other forms of sexual violence against children remains the most urgent concern” and “the persistence of sexual violence against children across the country has resulted in the need to reactivate and strengthen the country task force in order to monitor and report on such violations with immediate urgency. Efforts in that regard are currently under way.”157 These efforts include the development of the government drafting a national action plan on sexual violence, and the armed group FDS-FN signing a programme of action in January 2010 “to address sexual violence against children in areas under its control”, which its Chief of Staff followed-up by creating a 14 member working group (Groupe de travail et de suivi) which is to watch over that the programme of action is implemented in all the areas that the group controls.158 The Chief of Staff of FDS-FN also asked that the United Nations give a presentation to his cabinet on the SC resolution 1882 (2009). Furthermore, a communiqué by the leadership of the militia groups which are active in the western part of the country stated their intention to work together with the UN to prevent sexual violence.159 Since there had been a UN country task force established before and it was a well-known fact that rape and sexual violence against children were being committed, it might have been expected that the task force would have been able to begin its work sooner on this issue, so that the groups would have been re-listed, even if that had not been convenient to them. One of the Working Group’s former experts has argued that the Secretary General’s reports need to be more detailed. For example, the reports do not prioritize violations in terms of threats or numbers. Such a summary would be help-

156 157 158 159

Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 67 and 46 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 16 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 16

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ful for the SCWG in moving forward with recommendations.160 The most imminent problem needs to be identified in the order of the list of countries, this way the Working Group can focus its conclusions on the most repeated and/or those violations which caused the most repercussions.161 While all six violations are priority, one needs to ask “which of the six grave violations is of most concern in each particular country situation?” and/or “which violation has been committed the most?”162 They are equally grave, but in terms of which violation has been the most committed, if there is such a violation then that is the violation of most concern that needs extra attention for the Working Group to become more effective.163 For the Secretary-General to identify a violation by writing “of greatest concern” would inform what the Working Group needs to focus especially on. Also, once a group is listed in the MRM, the report is based on only six grave violations, which not only focuses but limits the scope of the MRM.164 Another consideration to take into account is that the member states of the Working Group do not necessarily view the six different violations as equally important.165 For instance for Russia the killing and maiming of children has been a priority violation, which also has been an issue in the discussions regarding the expansion of the triggers. The Democratic Republic of Congo, DRC, was the first country where the six priority violations were included in a report, which was in 2006.166 The Security Council Working Group on CAAC held several meetings discussing the report, and the government of the DRC participated in the development of the report which contributed to its substance. The report makes a distinction between “grave” and “serious” violations of children’s rights. The governmental armed forces and the police are responsible for the grave violations, while the non-state armed groups commit the serious ones. The report names the individuals who are responsible for the violations as well as the locations of where they were committed. Earlier reports did not identify where or when violations took place, or by

160 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 161 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 162 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 163 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 164 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 165 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 166 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 10

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whom these violations were committed.167 The report issued some recommendations, however the parties or individuals were not requested to take any specific action.168 It did request the release of all children from those armed groups that keep children in their ranks and it did identify those individual commanders that are responsible for recruiting and using the children.169 The Security Council took some action as a result of the recommendations that the Working Group had issued in its report. The Security Council wrote letters to the DRC authorities, the UN agencies and MONUC.170 The Security Council conveyed to the DRC sanctions committee information regarding a new rebel movement, as well as the Council being in favour of having its members be considered for eventual sanctions in the future. The Security Council also recommended that the president of the Council submitted a démarche to the Rwandan government concerning Laurent Nkunda, the then leader of the CNDP, on his cross-border activities between DRC and Rwanda, and concerning the issue whether children from DRC living in refugee camps in Rwanda were illegally recruited by armed groups into DRC.171 In the subsequent parallel report by the Watchlist on Children and Armed Conflict in 2006 as a response to the report by the Security Council Working Group, the Watchlist added some more action oriented recommendations.172 One recommendation specifically called for the transitional government of the DRC to make sure that members of the Forces Armées de la Républic de Congo (FARDC) were not responsible for any violations of human rights and/or child rights prior to any integration of these individuals into the governmental military forces.173 Regarding DRC, Save the Children UK has called attention to that there is a need for NGOs to have a channel through which to influence the recommendations in future reports on the DRC by the Secretary General, in order for information from the field regarding the situation for the children to be taken

167 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 168 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 169 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 170 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 171 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 172 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 173 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11

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into consideration by the Secretary-General in his analysis.174 The MRM process makes it possible for NGOs to provide information on individual occurrences, however there are those NGOs that would want in addition to be able to assist in analysing trends and recommending further actions to be taken, if their impartiality can be guaranteed.175 In a separate process, in the Security Council resolution 1698 of July 2006 regarding the DRC, the sanctions criteria were broadened making it possible for the first time to also sanction “those involved in recruiting children or other serious violations of international law, including killing and maiming, sexual violence, abduction and forced displacement”.176 One of the recommendations that the Secretary-General put forward in his 2011 annual report on CAAC was to have the annexes expanded to also list parties that have attacked schools and/or hospitals.177 As there had been much debate in the Working Group on the expansion of triggers for many years, and also that the UN and the international community have devoted much time and effort on the issue of education in emergencies including in armed conflict especially in the past three years, under the chairmanship of Germany, as Germany also viewed this issue to be of particular importance and wanted “to confer greater importance to the need for the education of children in armed conflicts”, it was possible in 2011 to expand the triggers to also include these violations.178 The Security Council thus decided to further expand the list of triggers in 2011 when it adopted resolution 1998 and also requested in paragraph 3 the Secretary-General to include in his lists in Annexes I and II to his annual report on children and armed conflict “those parties to armed conflict that engage, in contravention of applicable international law”: (a) (b)

174

in recurrent attacks on schools and/or hospitals; in recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals in situations of armed conflict, bearing in mind all other violations and abuses committed against children, and notes that the

Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 175 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 11 176 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 12: See further in Chapter on the sanctions regime for DRC. 177 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, para. 214, p. 50 178 On the work of the UN and the international community on education in emergencies see Chapter in book on Education; and The Permanent Mission of Germany to the United Nations, New York, Chairmanship of the Working Group on Children and Armed Conflict, www.new-york-un.diplo.de/Vertretung/newyorkvn/en/05/ Children_20in_20Ar...

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present paragraph will apply to situations in accordance with the conditions set out in paragraph 16 of its resolution 1379 (2001).

The Security Council was a bit more precise in its resolution 1998 paragraph 6(b) regarding action plans as it called upon the parties listed to establish separate action plans for each violation that they may be listed for: [T]hose parties that have existing action plans and have since been listed for multiple violations to prepare and implement separate action plans, as appropriate, to halt the killing and maiming of children, recurrent attacks on schools and/or hospitals, recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals, in violation of applicable international law, as well as rape and other sexual violence against children.

While the Security Council specifically for parties to be listed for recurrent attacks on schools and/or hospitals, and recurrent attacks or threats of attacks against protected persons in relation to schools and/or hospitals, called upon them in resolution 1998 paragraph 6(c) to “prepare without delay, concrete timebound action plans to halt those violations and abuses”, the listed parties were also called upon in paragraph 6(d) to “address all other violations and abuses committed against children and undertake specific commitments and measures in this regard”. It is the SRSG-CAAC, DPKO, DPA, ILO and UNICEF that engage in a systematic practice of entering into dialogue with the different parties to an armed conflict, including non-state actors, so that they will get from these actors credible commitments to for instance end the recruitment and use of child soldiers, to release abducted children, to observe humanitarian cease-fires, to facilitate the feeding and immunization of children, and to give access for humanitarian relief and protection of displaced communities.179 With regards to the MRM the Security Council in its resolution 1998 (2011) urged that the parties that were to enter into dialogue and prepare actions plans do so “in close cooperation” with the SRSG-CAAC and the MRM country-level task forces (para. 6 (e)). The concerned member states were encouraged by the Security Council to help to develop and implement the actions plans entered “in close consultation” with the country-level task forces and country teams, as well as to help the country-level task forces review and monitor the obligations and commitments agreed to by the different parties (para. 7). Here the Security Council in resolution 1998 (2011) in paragraph 8 invited: the United Nations country-level task force on monitoring and reporting to consider including in its reports the relevant information provided by the government 179 Office of SRSG-CAAC, Obtaining commitments from parties to conflicts, www. un.org/children/conflict/english/commitments.html

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concerned and to ensure that information collected and communicated by the mechanism is accurate, objective, reliable and verifiable.

The responsibility to follow-up on the Security Council resolutions on children and armed conflict lies with the UN MRM country-level task forces and the UN country teams.180 This responsibility was stressed by the Security Council in paragraph 12 of resolution 1998 (2011), that “effective follow-up” be ensured as well as that they are to monitor and report to the Secretary-General any progress with regards to children and armed conflict, and that this work be done “in close cooperation with his Special Representative for Children and Armed Conflict and ensure a coordinated response to issues related to children and armed conflict”. To this regard in order to enhance cooperation and reduce risks for overlap of work within the UN system, the Security Council requested:181 Member States, United Nations peacekeeping, peacebuilding and political missions and United Nations country teams, within their respective mandates and in close cooperation with the Governments of the countries concerned, to establish appropriate strategies and coordination mechanisms for information exchange and cooperation on child protection concerns, in particular on cross-border issues, bearing in mind relevant conclusions by the Security Council Working Group on Children and Armed Conflict and paragraph 2 (d) of its resolution 1612 (2005).

The Security Council also in paragraph 16 of resolution 1998 (2011) stressed that for the recommendations of the Secretary-General and the Working Group on CAAC’s conclusions to be effectively followed-up, the country task forces need to have “adequate capacities” to carry out their work. Furthermore the Security Council requested the Secretary-General in paragraph 17 of resolution 1998 (2011): to continue to take the necessary measures including, where applicable, to bring the monitoring and reporting mechanism to its full capacity, to allow for prompt advocacy and effective response to all violations and abuses committed against children and to ensure that information collected and communicated by the mechanism is accurate, objective, reliable and verifiable.

It needs to be noted that it has taken time for the UN to develop appropriate action plans and guidance on how to go about to list parties for the killing and maiming of children and for rape and other forms of sexual violence as was called for in SC resolution 1882 (2009). The Office of the SRSG-CAAC, the DPKO, UNICEF and others have worked together to establish such guidance and plans, and the SG stated in his 2011 annual report on CAAC to this regard that “[t]hese action plans will be implemented in the field in the coming months in situations of concern 180 Security Council, Resolution 1882 (2009), S/RES/1882 (2009), para. 8 181 Security Council, Resolution 1998 (2011), S/RES/1998 (2011), para. 15

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where parties have been listed in my last report on children and armed conflict (A/64/742-S/2010/181) for the killing and maiming of children and/or for sexual violence against children”.182 This will be two years after the adoption of resolution 1882 in 2009 and one year after the 2010 report. However given the context of the extensive focus on education in emergencies especially since 2007, it might be possible for the MRM system to approach this new trigger, attacks against schools as well as hospitals and against protected persons, in a more efficient way than the other violations so far. 11.5.2.

The Security Council Working Group on Children and Armed Conflict

The establishment of the Working Group on CAAC is an absolute innovation – there are no other such working groups of its kind established, and many of the other “portfolios” like women, peace and security and protection of civilians pine to have such a focused working group established.183 The reason as to why CAAC has had such momentum within the UN includes the timing of the issue, the capacity of the system and that 1612 was very innovative as a new tool, while the initial focus was on child soldiers.184 There are fewer political problems with progressing CAAC than with other issues such as women’s empowerment and the recognition of women’s role in security, as the CAAC issue is less culturally fraught.185 Also with CAAC there are clear definite violations, when activities are being perpetrated there is a clear violation framework established of the rights of children such as the right and access to education, which violations against women do not have except for rape and sexual violence.186 Furthermore, at the UN it has been easier to build consensus on children’s issues than it has been on women’s issues, and with children it has been possible to build a broader human rights agenda.187 A division was at the beginning being created in the Security Council as a result of making the issue of children and armed conflict into a thematic issue

182 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, para. 203, p. 47 183 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 184 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview at the UN headquarters, New York, May 20, 2009 185 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview UK mission to the UN, May 20, 2009, and follow-up May 2011 186 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview UK mission to the UN, May 20, 2009, and follow-up May 2011 187 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview at the UN headquarters, New York, May 20, 2009

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and thus more important.188 In the early phase the thematic resolutions on the protection of civilians and peace and security around 1999–2000 were something very new for the Security Council.189 The Security Council came to not only deal with one issue, but also cross-cutting issues which included human rights and international humanitarian law and peace and security issues. There was a need to link human rights and international humanitarian law with peace and security issues, and one of the ways to convince states that CAAC was an issue for the Security Council was to argue that if you did not need child soldiers, mercenaries, and various time bombs, then you would have to address all of these issues together and in a comprehensive way.190 France had to work hard to get the other four permanent members of the Security Council to become more effectively involved.191 While some members of the Security Council began to show much more of a commitment to the issue, there were members of the Security Council that did not necessarily want the Working Group to continue the work on CAAC.192 Russia and China have argued that human rights are not an issue for the Security Council, and that the Security Council should reflect the 1949 model where the Security Council was designed to protect sovereignty and dealt with conflicts across borders between nation states.193 However now conflicts have changed to become mainly internal conflicts, and therefore issues such as human rights violations of children and women in armed conflict belong in the Security Council.194 Some member states mean that the Security Council is not there to deal with human rights, but to protect sovereignty.195

188 Security Council Report, Profi le: Children and armed conflict, 12 July, 2006, p. 6 of 9 189 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 190 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 191 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 6 of 9 192 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 6 of 9, and Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 9 193 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 194 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 195 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011

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11.5.2.1.

The Chairmanship of the Security Council Working Group on Children and Armed Conflict

France was the first chair of the Working Group, however it was not France’s intention to become the chair because the practice within the Security Council is that generally the permanent five members of the Security Council (P5 members) do not chair subsidiary bodies of the Security Council (such as the Working Group on CAAC), and that there is a rotation every year of such bodies.196 That France became the chair for the first three years was not the usual working method for the Security Council. It was the French Ambassador to the UN Jean-Marc de la Sablière who was the driving force behind giving birth to the 1612 MRM.197 This involved a lot of negotiations, and since de la Sablière had been so instrumental in the establishment of the 1612 resolution and the SC Working Group, the thought was then to give the chairmanship of the Working Group to France.198 Once France became the chair the institution building period of the Working Group began, of which the first two years were important. The background of the negotiations involved that the mandate of the 1612 resolution is very broad, and there were very long and difficult negotiations as what could be considered traps in the resolution that needed to be addressed.199 These negotiations together with that the French Ambassador had very clear knowledge of and a vision of this mechanism made it possible to negotiate details on the mechanism’s establishment as it was very important to build something that made sense. France had been the leading force of the Working Group on children and armed conflict as its first chair, which was the reason why the Working Group had been able to function so well.200 Save the Children UK warned that if a “less committed” member state was to chair the Working Group it risked becoming much less effective.201 With regards to having France stepping down as chair and to have another chair it was important to build institutional ownership on this issue, and it would have been detrimental if France had stayed on as chair as there 196 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 197 The SRSG-CAAC has called his leadership on this issue “groundbreaking”, Statement by the Special Representative of the Secretary-General on Children and Armed Confl ict, Open debate at Security Council, 24 July 2006: Jean-Marc de la Sablière was the Ambassador of France to the United Nations 2002-2007 198 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 199 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 200 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 9 201 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 9

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would have been a risk that France would take care of it all since they were doing it so well and that other member states would not invest so much because France did it for them.202 France wanted to have someone committed to become the next new chair, and Mexico was very committed to CAAC issues.203 Mexico had sent indications that they were interested in becoming the chair of the Working Group. Austria was also committed to CAAC issues and as the President of the EU at the time moved CAAC as an issue forward. France meant that the Working Group needed a new chair because of the issue of ownership, the need for a fresh look, new ideas and that the work had become routine for France.204 France chose Mexico, and it was accepted by the other member states on the Council.205 Mexico became the second chair of the Working Group, a non-permanent member of the Security Council. The 1612 mechanism was a completely new mechanism on reporting and monitoring that one needed to start from scratch to build up including developing documents and working with consensus, and this was a challenge that Mexico fully realized from the start and Mexico adapted very well with staffing and its methods of work early on in its chairmanship.206 With Mexico becoming the new chair there had been an excellent transition from France.207 Mexico had a clear idea of what the work of the Working Group would be, and that the Working Group and the 1612 MRM had to be established from scratch and that its first work methods were about translating the resolution 1612 into becoming operational.208 The Working Group first issues conclusions depending on the outcome of the discussion of the reports by the SRSG-CAAC or the SG in the Working Group.209 The discussions within the Working Group involve what level of detail of information that has been reported on, as the recommendations and conclusions to be given by the Working Group are dependent 202 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 203 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 204 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 205 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 206 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 207 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 208 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 209 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009

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on feedback from the field. The Working Group asks the UN agencies in the field what they need from the Security Council in the context of 1612 MRM on CAAC. One challenge for the UN missions in the field is to understand what you can expect and not expect from the SC Working Group. When the MRM mechanism began working, there was first only one person working on CAAC in the French mission, later it became two people, and by May 2009 Mexico had four people working on CAAC.210 For Mexico as chair the first issues to deal with included establishing a set of conclusions including on Afghanistan and CAR, the new annual report from the SG, and to discuss a work plan for the year in the Council.211 It has always been the chair of the Working Group that organizes its meetings, and while there should be support from the Security Council Branch of the Secretariat most of the organization was done by the chair. As an active P5 member state France’s efforts and energy are lauded, and any member state that accepts this important role, as well.212 It is the chair that drafts the conclusions such as for CAR and Afghanistan, and as chair it is not the chair’s own political viewpoint that counts, the goal is to achieve consensus on a common document so that the document reflects the view of the Working Group as a whole.213 There are great sensitivities for some country situations, like Colombia, when only nonstate actors, not state actors, are listed, yet the country situation is listed by the country name, not by the non-state actor name. Such member states feel like this is a “back door” to the Security Council agenda. However, it is important to note that the Security Council can take up any situation at any time, as it has the sovereignty and mandate to do so.214 In this context it is important for the chair to know all the issues and politics surrounding the country, including its relationship with Security Council members.215 Many initiatives are about leadership and priorities. France was a driving force behind the focus on children and the inception of the SCWG on CAAC, as it was a top priority of the government of France. Toward the end of France’s role as a chair of the SCWG, there was an evident shift in government priorities

210 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 211 Fabien Fieschi, former French expert on the SCWG, Interview, Mission of France to the UN, New York, May 20, 2009 212 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 213 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 214 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 215 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011

The Work of the United Nations on Children and Armed Conflict

to the protection of civilians.216 Furthermore, while France did very well, there was a sense of fatigue with France’s leadership on the issue in the end.217 Both the new chair and the old chair have benefited the Working Group, France realized the vision, and were very effective advocates at the table.218 How the Security Council subsidiary groups are being led involves the issue of whether to have a permanent five member state or non-permanent member state in a leadership role.219 The downside to having a P5 member as chair is that the political capital of that member state is stowed in different places since a long period of time, while with non-permanent members they are on the Council for only two years and are able to really focus on the work within such a Working Group, like Mexico did.220 11.5.2.2.

Mexico as Chair of the Working Group on CAAC

Mexico took over from France as the new chairman of the Security Council Working Group on Children and Armed Conflict in January 2009 until December 2010, and in January 2011 Germany became the new chair, also a non-permanent member of the Security Council. Children and armed conflict (CAAC) was part of Mexico’s human rights policy, and the Security Council Working Group on CAAC was for Mexico important as it considered CAAC to be a specific issue as violence against children in armed conflict is the worst kind of violence.221 Mexico saw CAAC within the broader agenda of child protection and with a human rights approach, without losing the mandate of the Working Group. Furthermore, Mexico viewed CAAC as a complicated and sensitive issue and meant that when faced with this issue as chair the chair needs to fi nd a balance and find a way to reach agreement among the Security Council members who all have very different perspectives on the issue. When there was a deadlock because of these different perspectives in the Working Group, Mexico tried to think from the perspective of “the best interest of the child” principle, as child protection has been Mexico’s main goal within the limits of the Working Group and what the Working Group can achieve. 216 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 217 Phil Saltonstall, former UK expert on SCWG, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 218 Tracy Lavin, former U.S. expert on the SCWG, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 219 Phil Saltonstall, former UK expert on the SCWG, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 220 Phil Saltonstall, former UK expert on the SCWG, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 221 The information in these sections comes from Roberto DeLeón and Rodrigo A. López Tovar, former Mexican experts on the SCWG, Interview, UN Headquarters, New York, May 20, 2009

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The Working Group has been evolving and Mexico aimed to build upon what already had been achieved as well as had worked. Politically CAAC is not an easy discussion, and there has been reluctance within the Security Council to have this issue as part of the work of the Security Council, including the 1612 MRM mechanism and the Security Council Working Group on CAAC. However as CAAC was an important issue for Mexico, Mexico meant that the Working Group needs to be on the agenda of the Security Council, including the Annexes I and II of the UN Secretary-General’s annual reports on CAAC. Within the UN, including the General Assembly and the Office of the High Commissioner for Human Rights that has its own mandate on children, Mexico meant that there also needed to be better coordination between the different UN entities so as not to duplicate resources. This in turn speaks to the broader picture of protection of children in that one needs to have a dialogue on the issues affecting children both in times of peace and armed conflicts. In the SC Working Group on CAAC any dialogue with non-state actors always needs to be conducted within the framework of an armed conflict, as situations where violence against children is not linked to an armed conflict are not part of the Working Group’s mandate. The Working Group needs to focus on and work within its own mandate and the mandate of the Working Group is the protection of children, and the limit for the Working Group is situations of armed conflict. Mexico as chair meant that to have a dialogue with other UN agencies was beneficial and a main objective without losing the Working Group’s main approach. Mexico approached its work as chair of the Working Group from the perspective that within the Working Group there are some core elements to work from, and Mexico was not trying to invent anything new, but rather to start where France left off. Elements that needed to be changed included working harder to reach consensus and to benefit more from the experiences of NGOs. The Working Group conducts its work in such a way that it is the SRSGCAAC who presents the reports of the Secretary-General on CAAC to the complete group. Mexico as chair meant that it was very important to present the conclusions of the Working Group in a timely manner in order to have more impact, and therefore the UN needed to give more tools to the UN agencies in the field, such as UNICEF and the UN peace-keepers, so that they can more efficiently conduct their work within this area of CAAC. The child protection agenda is beginning to be streamlined for the UN peace-keepers and for the work of peacebuilding. For instance in the discussions on the conclusions for CAR in 2009 a reference to the UN Peace-Building Commission was highlighted, as it is very important that you invest in children if you are really going to have a serious peace-building process. The Security Council can intervene after that, for example regarding CAR and the reference to the UN Peace-Building Commission in the conclusions, the UN agencies and the donors have the opportunity to in the phase of peace-building to link the work of the Working Group to the next phases in the peace processes.

The Work of the United Nations on Children and Armed Conflict

Mexico became chair after that the subsidiary bodies of the Security Council elected Mexico with a mandate for one year which was renewed for one more year in January 2010. France built up the Working Group and the 1612 MRM from scratch, and for Mexico it was a matter of entering a new stage. The focus for Mexico was to have more timely conclusions, to have more efficient follow-up on recommendations and previous conclusions from the Working Group (since these groups have agreed on action plans to end the practice of recruitment and use of child soldiers and the letting go of children, then there is a need for followup and to have those commitments implemented), to strengthen the international legal framework of the protection of children’s human rights including the Optional Protocols to the CRC (strengthening the international legal framework of children has been part of Mexico’s own foreign policy), and finally to have a dialogue with NGOs. Mexico had for a long time worked in different ways with NGOs, for instance Mexico proposed the issue of human rights and terrorism already in 2001 and Mexico received a lot of help from NGOs regarding this issue. It was an important issue for Mexico to benefit from the NGOs’ expertise, because NGOs play a major role in putting pressure on the Security Council to take action and within this context Mexico saw NGOs as an important partner and tried to work with a common agenda with NGOs. In April 2009 the Working Group discussed the Arria Formula, and the possibility to have a dialogue with NGOs before the annual open debate. There is a lot of interest among other UN member states not on the Security Council to be able to take part in the annual open debate on CAAC at the Security Council. In April 2009 there were 58 representatives from the different UN delegations attending the annual open debate. Mexico tried to find other ways than the open debate to have a dialogue with NGOs and with the other UN member states, and worked to have a thematic open session of the Working Group with the aim to organize a group of interested parties on CAAC that have different opinions. The criticism towards the Working Group has included that the Working Group should do more, that it has not used all its tools, but Mexico also took into account that the Working Group needs to work with the tools that are already in place and build upon those. The CAAC issue is at the top of the agenda, and in the beginning the Working Group was working on how to implement its own mandate and how to issue its considerations. Then the Working Group began to work in a more structural way, and issues specific recommendations to armed groups, governments and to different actors within the UN system. A case-bycase approach has been adopted and the Working Group’s own conclusions have been developed.

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11.5.3.

Challenges to the Work of the Working Group on Children and Armed Conflict

Dynamics of the SCWG change every year as five member states depart the SC, and five new member states join, thus making a new recipe of exchange every year. In 2009 there was a dramatic positive difference and a great synergy developed in the group as a result.222 The dynamic in the Working Group changes depending on which states are members of the Security Council at a given time and how strong countries are on human rights, which not all are.223 Also, one issue is the level of knowledge about children and armed conflict among the experts themselves, as some have never worked on these issues, and another issue is the experience lost when experts need to leave their posts. There is an annual open debate in the Security Council on the SG’s annual report on CAAC, at which time all Security Council members speak on the issue of CAAC and the report.224 Other aspects affecting the work of the Working Group is the fundamental element of how far you can go, and the language such as “we urge” is sometimes the strongest language that consensus can be reached on.225 SCWG negotiations can be time consuming and exhausting, for instance the latest PRST of the Working Group by May 2009 took 60 hours to negotiate before consensus was reached.226 Many delegations must have their legal, defence and political experts at capital sign off on every aspect of the text; while other delegations have experts in the UN who make up text based on their nature or persuasion.227 The PRST is different than a resolution, as through such a presidential statement it is actual letters that are being sent out to governments with messages from the Working Group. Another issue is that the different member states of the Working Group all work differently, as some must receive very strict and precise instructions from their capitals on how to proceed, while other delegations enjoy a certain amount of

222 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 223 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 224 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 225 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 226 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 227 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011

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local leeway in New York, subject to upholding general principles.228 Delegations also have their own particular interest areas. For the UK, for instance, much of the CAAC work can be undertaken according to general principles, with some pointers from capital and the local embassy. However with a situation such as Afghanistan, in which the UK is heavily engaged, specific instructions are regularly received from capital. In other cases such as Sri Lanka the UK mission did not receive strict language suggestions on how to proceed, and as a result in such cases the UK representative is freer and better able to seek constructive compromises during negotiations.229 The US representative needs to get legal instructions from Washington D.C. including from the State Department and the DOD (Department of Defense), so the US representative does the lion’s share of ensuring that the Working Group’s output is legally secure and France concentrates on pushing for improved humanitarian protection.230 France also gets very firm instructions from Paris. The UK likes to act as a facilitator and a bit more of a broker in the Working Group, and since English is the currency language at the Security Council, the UK often has a role, along with the US, in trying to find the correct language to reflect the intention of the Group.231 One challenge within the Working Group is the politicization of the issues, and the Working Group is used as a forum to expand Security Council priorities.232 Russia, for instance, politicizes CAAC, as they used negotiations on the conclusions for Afghanistan in May 2009 to launch a campaign against the US.233 Normally delegations will have four to five requests per document; Russia had 18 requests – all of them were negative connotations toward the US. Even in the Working Group, divisions and the protection of allies or economic interests are evident.234 One example would be evident protections and softening of text by SC Member States who had economic interests in Myanmar, such as that political and economic interests greatly impacted the strength of the SCWG conclusion 228 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 229 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 230 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 231 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011, and Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 232 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 233 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 234 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011

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documents. If politics were removed, and the spirit of protecting children was infused, there would be much advancement in the SCWG documents.235 The discussion surrounding the Afghanistan conclusions were politicized, however the bottom line for the work of the Working Group is the protection of children, but issues become very quickly politicized in the Working Group and used against countries.236 The more specific the Working Group can be the better, and a continuous challenge is trying to tackle the sensitive issue of which situations to have on Annexes I and II, keeping in mind that it is the parties and not the countries that are listed.237 Regarding Colombia it is the non-state armed groups and not the armed forces that are part of the main goal of child protection.238 Mexico’s approach to discussing parties/situations not on the agenda of the Security Council such as Annex II was not to engage in a political discussion, and to keep to the facts on the ground and to the goal of protecting the children who are affected by armed conflict. The Security Council thematic resolutions on CAAC are a positive development, but at the same time there the a risk that they negatively affect the Council’s credibility by having enabling language on CAAC, but then the Security Council being reluctant to go the whole distance.239 For instance in 2009, 19 parties had been listed in the annexes to the annual report on CAAC by the Secretary-General, the so-called “persistent perpetrators” that had not listened to the Security Council, and one needs to consider what kind of consequences this will have.240 The limits and challenges for the MRM include that while securing commitments from a party is a start, the situation for children in for instance Somalia has not been improving, and the environment in which the UN country task force and NGOs operate is very dangerous with a complete collapse of the government and with no new UN presence.241

235 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 236 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, May 20, 2009, and follow-up May 2011 237 Roberto DeLeón and Rodrigo A. López Tovar, Mexico’s former experts on the SCWG-CAAC, Interview, UN Headquarters, New York, May 20, 2009 238 Roberto DeLeón and Rodrigo A. López Tovar, Mexico’s former experts on the SCWG-CAAC, Interview, UN Headquarters, New York, May 20, 2009 239 Phil Saltonstall, former UK expert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 240 Phil Saltonstall, former UK epert on the SCWG-CAAC, Interview, UK mission to the UN, New York, May 20, 2009, and follow-up May 2011 241 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009

The Work of the United Nations on Children and Armed Conflict

Save the Children UK has also pointed out that the Working Group depends very much on the participation of local civil society partners and that these partners many times do not have sufficient reporting capacity and are many times not adequately informed.242 The Working Group takes all decisions by consensus and to work for consensus in the Working Group involves 15 member states of the Security Council.243 Such consensus amongst 15 very different political perceptions of world politics, as well as differences of opinions on which mechanisms best achieve accountability, like the use of sanctions, is to be worked out.244 So in country situations like Burundi, conclusions were adopted quite quickly and without confl ict. However in country situations like Sudan the negotiations were time consuming and intensive, as it was another forum for member states to “duke out” their differences.245 In the Working Group it is much more difficult because the leverage for each member state is fairly limited. Myanmar has been the biggest challenge. Action plans are extremely important tools, as they create a road map and vision on how to best extricate the issues and problems for state and non-state actors.246 However, sometimes certain issues overlap with national interests, for instance the problem with the Philippines is that some groups are on the US’s terrorist list which gives rise to certain sensitivities. Across the board, there are different sentiments on engaging with terrorists or rebel groups – and the sentiment differs even amongst various officials and departments within a given government.247 Some believe that engaging with a rebel or terrorist organizations brings them into the legal fold and legitimizes them, while others believe that doing so is the only way to teach accountability.248 After the adoption of the SC resolution 1882 in 2009 there was no real change in the Working Group, as it was the implementation period of the resolution.249 This has involved finding ways on how to develop action plans on these two new 242 Save the Children UK, Anna Jefferys, Can the powerful protect? How the UN Security Council needs to shape up to protect children, 2007, p. 9 243 Fabien Fieschi, former French expert on the SCWG-CAAC, Interview, Mission of France to the UN, New York, May 20, 2009 244 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 245 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 246 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 247 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 248 Tracy Lavin, former U.S. expert on the SCWG-CAAC, Interview, U.S. Mission to the UN, New York, May 20, 2009, and follow-up September 2011 249 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SCWG-CAAC, Interview, Mexico’s Mission to the UN, New York, July 22, 2010

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violations, and to allow for institutional progress on these two new violations before adding any new triggers. The resolution has had an impact on the language the Working Group uses in for instance its conclusions, however the resolution did not result in having any new situations added and the workload did not increase. While resolution 1882 had not had any real impact by August 2010 and needed more time to bed down, there were some expectations that the list of the Secretary-General would have been longer in his report of 2010, by adding new parties/countries or the re-listing of some groups.250 In the Working Group all violations are treated the same way, and several member states of the Working Group still want to include all six violations. However, with the two new triggers, since it takes such a long time to establish a system for having parties included on the lists of the annexes of the annual reports of the Secretary-General, it was most likely the right decision not to have expanded the triggers to include all six violations at the time.251 The countries are being told in advance that they will be in the reports, and governments do not want to be on the Security Council. With regards to the UK having been included in the report of the Secretary-General, this had a massive impact on the policy of recruitment of the UK, and the UK quickly changed its policy so that the British army can recruit youth from 16 years but only for administrative work.252 Institutionally within the UN there has been progress on CAAC, slowly and in a comprehensive way, but there are many different aspects to consider for the different UN actors before they are able to fully implement the 1882 resolution and what the Working Group can ask them to implement.253 In the Working Group the resolution 1882 did not have an impact as of July 2010, and while the Working Group was still discussing all the six violations, it was as a result of the resolution to give more attention to rape and sexual violence and killing and maiming of children.254 This also involves including language on asking for action plans and commitments regarding all of these three violations in its recommendations and conclusions. This was a period to consolidate what the Working Group had already achieved, to examine what the real results have been. As Mexico as chair argued it took much political will to adopt SC resolution 1882, and the next step was to get the real goal of the resolution implemented, and that in this context the 250 Rhian Checkland, UK’s expert on the SCWG-CAAC, UK Mission to the UN, New York, August 3, 2010 251 Rhian Checkland, UK’s expert on the SCWG-CAAC, UK Mission to the UN, New York, August 3, 2010 252 Rhian Checkland, UK’s expert on the SCWG-CAAC, UK Mission to the UN, New York, August 3, 2010 253 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SCWG-CAAC, Interview, Mexico’s Mission to the UN, New York, July 22, 2010 254 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SCWG-CAAC, Interview, Mexico’s Mission to the UN, New York, July 22, 2010

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Working Group must examine what is needed in order to implement this resolution on the ground.255 In terms of having all six violations becoming triggers, Mexico was of the view that this would probably take time to accomplish, but that the pressure on this issue remains. Furthermore, Mexico meant that resolution 1882 was a very positive step, there had been no resolution on CAAC since 2005, and that resolution 1882 gives more attention to CAAC and the Security Council which was a very positive aspect because the Security Council members have CAAC and these particular violations on their minds and this impacted the Council dynamics.256 With Security Council resolution 1998 (2011) the development of action plans on the violations of attacks against schools and hospitals and protected persons will also need to be developed, and renewed and more focused attention on these violations will also be a positive development. 11.5.4.

The Working Group’s Conclusions

The Secretary-General submits its country-specific reports on children and armed conflict to the Security Council and its Working Group on CAAC, and as a response to these reports the Working Group is to determine what kind of actions that are to be taken in each specific case based on its toolkit. These actions are delivered in the Working Group’s conclusions, which is the document in which the Working Group submits its recommendations for action to be taken by the different actors that can include among others governments, non-state armed groups and UN agencies. During Mexico’s chairmanship of the Working Group, the Working Group adopted 11 conclusions and recommendations for Afghanistan, the Central African Republic (CAR), DRC, the Sudan, Sri Lanka, Burundi, Uganda, Colombia, Philippines and Nepal.257 Furthermore, during Mexico’s tenure two presidential statements had been adopted and two thematic debates were held. Mexico held a lessons learnt session in the beginning of 2010 for the Working Group, where what kind of improvements that needed to be made were addressed including how to have more timely conclusions, how to improve the follow-up to the conclusions and the transparency of the Working Group.258 In addition Mexico also invited the Watchlist in 2010 to give a presentation on children and armed conflict. France has been very open about that the Working Group has to find a way to improve the follow-up of its conclusions, and

255 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SCWG-CAAC, Interview, Mexico’s Mission to the UN, New York, July 22, 2010 256 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SCWG-CAAC, Interview, Mexico’s Mission to the UN, New York, July 22, 2010 257 Ambassador Claude Heller, Mexican Mission to the U.N., Security Council, SC/10131, Elected Members of Security Council Wrap Up Tenure, Brief on Accomplishments of Subsidiary Bodies, 20 December 2010, p. 4 258 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 10

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that the Working Group needs to be able to better respond to new crises as well as to increase transparency.259 While the conclusions have become more detailed, the Working Group does not seem to want to put pressure by setting deadlines for different actors to respond and to push for action, or to recommend sanctions (China for instance has not been in favour of sanctions).260 In 2009 for the first time the Working Group recommended to the Council that it should include in the terms of reference for their upcoming missions to DRC, CAR and Afghanistan the situation for children in armed conflict as well as the Working Group’s conclusions.261 This resulted in that the Council included the issues of sexual violence and child protection in the terms of reference for its visit in May 2010 to Africa. Another new development was that the Working Group in its 2010 conclusions for Burundi requested a follow-up report from the Secretary-General regarding the implementation of the conclusions.262 The main issue with the Working Group’s conclusions is that it usually takes a very long time for the Working Group, who works under the consensus rule, to reach agreement on what actions to take. This following list is an example of the time lag between the reports and the conclusions:263 Secretary-General’s Country Report on CAAC – Afghanistan on 10 November 2008 – Sudan on 10 February 2009 – Myanmar on 1 June 2009 – Sri Lanka on 25 June 2009 – Colombia on 28August 2009 – Burundi on 10 September 2009 – Uganda on 15 September 2009 – Philippines on 21 January 2010 – Nepal on 13 April 2010 – DRC on 9 July 2010 – Somalia on 11 September 2010

Conclusions came out 13 July 2009 21 December 2009 28 October 2009 3 June 2010 21 September 2010 21 December 2009 16 June 2010 12 November 2010 12 November 2010 8 March 2011 8 March 2011

There are several reasons why there is such a time lag, including the consensus rule and that there are many different views on actions to take. In the beginning when the Working Group was being established in 2005, the intention 259 260 261 262 263

Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 23 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 9-10 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 10 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 10 From the web-site of the Office of the Special Representative of the Secretary-General on Children and Armed Confl ict, April and May 2011; see also Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, Chart 1: Timing between Secretary-General’s Reports and Working Group Conclusions

The Work of the United Nations on Children and Armed Conflict

was that it would take about two to three months to deliver the conclusions after the Secretary-General had submitted a report.264 For the countries listed in the abovementioned list, it was the first time that the Working Group had considered a report on Afghanistan, but it was the third time in the cases of DRC and Sudan. The Security Council means that when there is such a time lag between a report and the adoption of the conclusions there is a risk that the information will be out of date, and “that the Working Group’s recommendations no longer reflect the actual situation on the ground”.265 However, the recent conclusions on Afghanistan, Chad and CAR have taken less time to be issued, as the latest SG’s report on Afghanistan came out in 11 February 2011 and the Working Group’s conclusions came out 3 May 2011, the SG’s report on Chad came out on 16 February 2011 and the conclusions on 3 May 2011, and the report on CAR came out on 13 April 2011 and its corresponding conclusions on 6 July 2011.266 One factor influencing the time it takes to reach consensus on conclusions has been that some members of the Working Group do not have the political will to work through their political differences and still be able to reach an agreement.267 When the Working Group discussed Myanmar, there was a divide between how the members wanted “to approach the wider political situation” in the country, and when the Working Group discussed the situation in Afghanistan, one issue was between Russia and the US and concerned if civilian casualties by the International Security Assistance Force (ISAF) in Afghanistan amounted to violations of international humanitarian law as pertaining to children.268 This needs to be seen in the context that the Security Council itself within the same time period had been able to come to an agreement on the issue and was able to adopt the UNAMA resolution for Afghanistan. The United Nations is very political, and many issues easily become politicized in the Working Group on CAAC as it is subsidiary organ of the Security Council, which is a factor to take into account and a challenge that the different member states in the Working Group need to find a way to handle. Other factors include that not all member states have the same level of capacity, maybe have few staff members, and are not able to spend much time on the Working Group on CAAC, which also needs to be seen in the context that there has been a lack of continuous administrative support from the Secretariat.269 The UN Journal

264 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 7 265 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 7 266 The Office of the Special Representative of the Secretary-General on Children and Armed Conflict, Security Council Working Group, www.un.org/children/english/ securitycouncilwgroupdoc.html 267 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 8 268 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 8 269 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 9: Th is issue was improved by late 2010, while more attention on this issue needs to be done,

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which the Secretariat publishes lists all the Working Group’s informal and formal meetings, but the Working Group’s programme and agenda are not made public. 11.5.5.

Security Council Working Group on Children and Armed Conflict Toolkit

The Security Council’s Working Group on CAAC has developed a toolkit composed of 26 different measures of direct action or recommendations that the Working Group can make, and the Working Group has underlined that the toolkit list is indicative and non-limitative, and to be looked upon as a “living document”.270 The measures available to the Security Council Working Group on CAAC that are to result in positive changes on the ground include:271 1. Assistance: Direct action by the Working Group: Recommendations for additional technical assistance to the country concerned, in order to strengthen its national capacities to promote and protect the rights of the child (UNICEF, OHCHR, DPKO, UNDP …); Recommendations to the relevant bodies for improving humanitarian coordination and assistance to children affected by armed conflict (OCHA, UNHCR, UNICEF …); Specific requests to other United Nations bodies (PBC, GA, HRC …) or agencies (ILO, World Bank …); Request for advocacy and official visits of the SRSG for CAAC to countries of concern, including, where appropriate, engaging with parties on action plans, M&R implementation, assistance for adoption of the Optional Protocol to the CRC and other relevant instruments; Direct action by the Working Group or possible recommendations to the UNSC, as appropriate: Support to transitional justice and truth-seeking mechanisms, including support in the development and implementation of child-sensitive procedures, e.g. building capacity of investigators, statement takers and other officials involved in how to address cases involving children and how to interview and take testimonies from children; Security Council Report, Cross-Cutting Report, 2011 No. 1, 6 July 2011, p. 2, 21 and 22 of 22 270 11 September 2006, (S/2006/724), Addendum, Non-Paper, Options for possible actions by the CAAC Working Group of the Security Council (“toolkit”) 271 This list is taken in its whole from 11 September 2006, (S/2006/724), Addendum, Non-Paper, Options for possible actions by the CAAC Working Group of the Security Council (“toolkit”)

The Work of the United Nations on Children and Armed Conflict

Possible recommendations to the UNSC: Letters to donors (public/private) to invite them to contribute more, including for strengthening child protection capacities of regional organizations; 2. Démarches: Direct action by the Working Group: Advocacy for accountability for crimes against children in situations of armed conflict and calls on the United Nations and Members to provide support to programmes ensuring the protection of children involved in accountability or truthseeking mechanisms; Direct action by the Working Group or possible recommendations to the UNSC, as appropriate: Letters/appeals to the parties concerned; Démarches to parties in situations of armed conflict listed in the annexes of the Secretary-General’s report, based on terms of reference clearly defi ned by the Working Group and aiming to achieve specific and verifiable results; Possible recommendations to the UNSC: Letters to regional organizations; Draw attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals, while emphasizing the responsibility of States to comply with their relevant obligations to end impunity; 3. Enhanced Monitoring Direct action by the Working Group: Request from the Secretary-General of additional information/reports on specific issues or parties; Request from the representatives of the affected country of additional information/ clarification on the Secretary-General’s report; Organization of informational briefing by outside experts (civil society, academia …); Direct action by the Working Group or possible recommendations to the UNSC, as appropriate: Specific field trips on CAAC by Members of the Working Groups followed by a report, subject to availability of funding; Convening of a closed or open meeting with the participation of the State and/or parties concerned as appropriate; Press conferences to highlight a specific issue and to raise awareness about the CAAC provisions of international humanitarian and human rights law, as well as about UNSC resolutions and decisions regarding CAAC (in addition to the usual press releases following the meetings of the WG);

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Possible recommendations to the UNSC: Ensure that UNSC field trips incorporate CAAC dimension in their terms of reference and reports; Specific PRST or resolution, if appropriate; 4. Improvement of mandates Direct action by the Working Group: Invitation to stakeholders concerned to pay particular attention to children, including girls exploited by armed forces and groups, in DDR processes; Direct action by the Working Group or possible recommendations to the UNSC, as appropriate: Letter to the Secretary-General suggesting the strengthening of the “CAAC dimension” of the mandate of the peacekeeping mission or of a DPA assistance mission, whenever there is a specific need, and requesting that periodic reports include an analysis on the issue; Request that the specific needs of children are considered in forthcoming peace processes and/or peacekeeping mandates, including advocacy for inclusion of child protection provisions in ceasefire and peace agreements as well as throughout the consolidation of peace in the aftermath of conflict (including during reform and transition processes); Setting strong child protection standards for troop-contributing countries and other actors involved in peacekeeping operations and providing adequate and regular training; Possible recommendations to the UNSC: Identify and focus on specific areas for developing UNSC’s action on CAAC, including through consideration of drafting a new UNSC resolution on CAAC; 5. Other measures Possible recommendations to the UNSC: Consider and forward to the existing Sanctions Committees, bearing in mind their respective mandates and paragraphs 9 of resolution 1612 (2005) and 5 (c) of resolution 1539 (2004), relevant information received by the Working Group and its conclusions thereon, in particular on issues of concern, including the views requested from the Working Group upon request of the existing Sanctions Committees; Letters to the relevant justice mechanisms, in order to bring information to their attention and contribute to ending impunity of violators.

With the toolkit’s 26 tools available, the Security Council Report found that “the most commonly used since 2006 have been letters and appeals to parties to the conflict, to the UN bodies for technical assistance and to donors for

The Work of the United Nations on Children and Armed Conflict

contributions”.272 Public statements were used by the Working Group for the first time in the case of Sri Lanka in 2007 and “[t]his was a response to the need to have a more effective way to reach out to non-state actors”.273 This led to that a new practice developed that when the Working Group wants to send a message to a non-state actor, it is the chair of the Working Group that issues a public statement.274 But concerns have been raised about how effective this practice in reality is and if all groups do get these messages.275 One idea has been to have the SRSGCAAC deliver these public statements, or to go through the local media. Another new practice that has developed is that the president of the Council in Annex II situations forwards letters that the Working Group’s chair has written.276 This practice has been developed in order to make a distinction between situations on the agenda of the SC and those situations not on the agenda. In 2009 there were not any cases though where the president of the Security Council wrote letters to governments for situations in Annex I even as all the Working Group’s six conclusions involved situations in Annex I, and if this continues the Council will risk not being as much engaged in making sure that the Working Group’s recommendations are implemented.277 With regards to targeted sanctions, the Working Group recommended targeted sanctions in its conclusions on Côte d’Ivoire in February 2007, otherwise it is only for the DRC in July 2006 that targeted sanctions have been recommended by the Working Group.278 The Watchlist has examined the Working Group’s conclusions to determine which actions in the toolkit had been used and if and how often they had been used between 2006 and 2008, and they found that the actions most often used were “letters or appeals to parties concerned (27), open or closed meetings with parties concerned (20), requests to UN bodies and agencies (18), requests to donors (17)”, and the actions sometimes used were “requests for visits or advocacy by the Special Representative of the Secretary-General on CAAC (12), recom272 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 6 273 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 6 274 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 6 275 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 6, and Cross-Cutting Report, Children and armed conflict 2010 No. 1, 2 June 2010, p. 9 276 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 6, and Cross-Cutting Report, Children and armed conflict 2010 No. 1, 2 June 2010, p. 9 277 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2010 No. 1, 2 June 2010, p. 9 278 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2010 No. 1, 2 June 2010, p. 10

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mendations for humanitarian cooperation (10), invitations to stakeholders to pay attention to disarmament, demobilization and reintegration of child soldiers (10), full range of justice mechanisms (9), CAAC issues in peacekeeping missions (7)”.279 The actions used least often were “letters to regional organizations (6), advocacy for accountability (6), children’s needs in peace processes (5), requests for additional information from the Secretary-General (5), requests for technical assistance (3), submission of information to existing Sanctions Committees (2), stronger child protection standards for troop-contributing countries (2), requests for additional information from the country concerned (2), démarches to armed forces or groups (1), information briefings by experts, including NGOs (1), new areas of Security Council action, including resolutions (1), support to transitional justice and truth-seeking mechanisms (1)”, and finally the actions never used were “letters to relevant justice mechanisms with information on violations, field visits by either the Security Council or the Working Group”, or requests for a specific presidential statement from the Council or a resolution, and press conferences.280 The Watchlist showed that the toolkit had been “severely underutilized” and that while the Working Group most often combines different tools, a study by the Watchlist found that about 50 per cent of the tools had either “never” been used or “very rarely”.281 It was also found that about eight tools are on average used in the conclusions for every country situation, which amounts to about 30 per cent of all the tools the Working Group has at its disposal. One exception has been the conclusions for Somalia that the Working Group issued in December 2008 (S/ AC.51/2008/14), when it used the most number of its tools ever, 13 tools, which still just amounted to half of its toolkit.282 The Watchlist suggested that the Working Group should use a much more focused and conscious approach to each situation, as every situation is different and gave as an example that a differentiated approach should be applied to situations with armed forces and groups that have “a clear leadership structure” in contrast to groups that “act more like a criminal gang”.283 Eva Smets of Watchlist has also suggested that the Working Group could use the tool of having an emergency session for urgent situations, as for instance to have had an emergency session could have been an option for the situation in Sri Lanka when the conflict escalated in 2009.

279 Watchlist, UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict, May 2009, p. 14-15 280 Watchlist, UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict, May 2009, p. 14-15 281 Watchlist, UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict, May 2009, p. 14 282 Watchlist, UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict, May 2009, p. 14 283 Watchlist, UN Security Council Resolution 1612 and Beyond: Strengthening Protection for Children in Armed Conflict, May 2009, p. 15

The Work of the United Nations on Children and Armed Conflict

In 2008 the Working Group’s most forceful action was in its public statements stating that “further steps” would be taken if groups would not implement their commitments.284 This type of public statements came out in the cases of Sudan and Sri Lanka concerning LTTE. With regards to the lack of response by the Lord’s Resistance Army, LRA, in Uganda to the Working Group’s previous conclusions, the Working Group in its conclusions of June 16 in 2010 in its recommendations to the Security Council invited it “to develop, with the governments of the Democratic Republic of Congo, the Central African Republic and the Sudan, a regional strategy to address the violations and abuses committed against children by LRA, taking into account existing regional mechanisms, to facilitate appropriate reporting on violations committed against children and to address those violations”.285 This is an important recognition that the solution to LRA’s activities lies in developing a regional approach to find a way to end their abuses against children and the civilian populations in these countries. However issues involving the commitment of the governments of Uganda and DRC with regards to their responsibilities to ensure the human rights of the children and the other civilians remain.286 11.5.5.1.

The Working Group’s Field Trip to Nepal

The tools in the toolkit which for a long time had not been used included field trips followed by a report, démarches to draw attention to the full range of justice and reconciliation mechanisms, letters to relevant justice mechanisms with information on violations or a request for a specific resolution or presidential statement from the Council.287 However, in its Presidential Statement (PRST) from June 2010, the Security Council specifically invited the Working Group to fully implement its toolkit, and in this regard for the first time asked the Working Group to conduct a field trip within one year to examine a situation listed on any of the annexes to the annual report on CAAC of the Secretary-General.288 The Security Council did not make a distinction between situations on or not on the agenda of the Council. 284 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 7 285 Security Council Working Group on Children and Armed Conflict, Conclusions on Uganda, S/AC.51/2010/1, (b); See also Security Council Report, Cross-Cutting Report, Children and armed confl ict No. 1, 6 July 2011 286 See for instance Human Rights Watch, DR Congo: Lord’s Resistance Army Rampage Kills 321, Regional Strategy Needed to End Rebel Group’s Atrocities and Apprehend Leaders, March 28, 2010 287 Security Council Report, Cross-Cutting Report, Children and armed confl ict, 2009 No. 1, 15 April 2009, p. 7 288 Security Council, Statement by the President of the Security Council, S/ PRST/2010/10, 16 June 2010

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It is the Working Group that decides where to go on a field trip, and the Working Group was looking into situations where progress had been made, but where violations were still going on.289 Since this was the first trip for the Working Group, it needed to have two characteristics: that it would be useful for the Working Group to go to this country and that progress needed to have been made. For the Working Group to be able to go on a field trip, the government in question needs to give its permission.290 Furthermore, issues such as the logistics, funding and security need to be taken into account, and therefore for instance was it not possible for the Working Group to go on a regional trip to investigate actions taken by the LRA which would have required that the Working Group go to Uganda, DRC, CAR and southern Sudan.291 Another reason as to why the Working Group did not take such a trip was that the requirement that progress needed to have been made was not there. Further the Working Group did not go to DRC as the Security Council had been there in May 2010. When the Security Council asks the Working Group to do something, such as in the 2010 PRST to conduct a field trip, the Working Group needs to oblige.292 The Working Group conducted its first field trip between November 22–26 to Nepal, as the Mexican Ambassador Claude Heller explained “in order to take stock of progress made following signing of the plan of action by the Government and the United Communist Party of Nepal-Maoist”.293 During the trip the Working Group held meetings including with the government, the leadership of the military, the Unified Communist Party of Nepal-Maoist and civil society representatives. Ambassador Heller recommended that the Working Group should continue to conduct field missions.294 Issues such as costs for the trip were an impediment to some of the Working Group members as going on field trips is very costly and it is each member state that needs to pay for its participation, and this was one reason as to why not all could go. The Working Group worked closely with UNICEF in preparing for its field trip, it was Mexico as chair .

289 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at the Mexican Mission, United Nations, New York, July 22, 2010 290 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at the Mexican Mission, United Nations, New York, July 22, 2010 291 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at the Mexican Mission, United Nations, New York, July 22, 2010 292 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at the Mexican Mission, United Nations, New York, July 22, 2010 293 Ambassador Claude Heller, Mexico, Security Council, SC/10131, Elected Members of Security Council Wrap Up Tenure, Brief on Accomplishments of Subsidiary Bodies, 20 December 2010, p. 4 of 5 294 Ambassador Claude Heller, Mexico, Security Council, SC/10131, Elected Members of Security Council Wrap Up Tenure, Brief on Accomplishments of Subsidiary Bodies, 20 December 2010, p. 4 of 5

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that was administratively arranging the trip, but it should have been part of the Secretariat’s work.295 In June 2011 there was a trip to Afghanistan by the Working Group which was open to all members of the Working Group, but it was Germany alone that participated from New York, while some delegations had representatives from their missions in Kabul taking part.296 11.5.5.2.

Sanctions, Targeted and Graduated Measures and Children and Armed Conflict

The Security Council in its resolution 1539 (2004) attempted to force the persistent perpetrators who recruit and use child soldiers and “which are on its agenda” to enter into action plans by setting a time limit of three months, and in order to reinforce this call the Security Council expressed its intention in paragraph 5(c) that it would consider “imposing targeted and graduated measures, through country-specific resolutions, such as, inter alia, a ban on the export or supply of small arms and light weapons and of other military equipment and on military assistance, against these parties if they refuse to enter into dialogue, fail to develop an action plan or fail to meet the commitments included in their action plan, bearing in mind the Secretary-General’s report”.297 Following up on this intention the Security Council in its resolution 1612 in paragraph 9 recalled resolution 1539 paragraph 5(c) and reaffirmed “its intention to consider imposing, through country-specific resolutions, targeted and graduated measures, such as, inter alia, a ban on the export and supply of small arms and light weapons and of other military equipment and on military assistance, against parties to situations of armed conflict which are on the Security Council’s agenda and are in violation of applicable international law relating to the rights and protection of children in armed conflict”.298 This was followed up by resolution 1882 (2009) in which the Security Council stated that “to ensure respect” for its resolutions it reaffirmed “its intention to take action against persistent perpetrators in line with paragraph 9 of its resolution 1612 (2005)”.299 In these resolutions it is clear that the Security Council can only adopt targeted and graduated measures regarding situations that are on the agenda of the Council, that is only towards parties listed in Annex I of the Secretary-General’s annual report on CAAC. In this context it 295 Rodrigo, A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at the Mexican Mission, United Nations, New York, July 22, 2010 296 Information from the UK Mission, United Nations, New York, November 23, 2011, and Security Council Report, Cross-Cutting Report No. 1, Children and Armed Conflict, 6 July 2011, page 8 of 22: UK, US, China and Russia participated with representatives from the missions in Kabul. 297 Security Council Resolution 1539, S/RES/1539 (2004), para. 5 (a) and (c) 298 Security Council Resolution 1612, S/RES/1612 (2005), para. 9 299 Security Council Resolution 1882, S/RES/1882 (2009), 4 August 2009, para. 7 (c)

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is to be noted that the Security Council in its resolution 1820 (2008) with regards to rape and sexual violence against women and girls in armed conflict, while first expressing its readiness to consider “situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence”, affirmed its intention that “when establishing and renewing state-specific sanctions regimes, to take into consideration the appropriateness of targeted and graduated measures against parties to situations of armed confl ict who commit rape and other forms of sexual violence against women and girls in situations of armed conflict”.300 The Security Council for a long time did not take any decisive action towards what is called the “persistent perpetrators” that have been identified in the lists annexed to the Secretary-General’s annual reports on children and armed conflict for several years, and while the Security Council has expressed its intention to adopt targeted and graduated measures towards these actors, the Security Council was not very strong in its approach.301 In the annual report on CAAC submitted 13 April 2010, the Secretary-General separately listed the “persistent perpetrators” that had been listed in the two annexes “for a least five years”, and they were:302 (a) (b) (c)

Abu Sayyaf Group (ASG) (Philippines); Ejército de Liberación Nacional (ELN) (Colombia); Forces armées de la République démocratique du Congo (FARDC) including fast-track integrated units of the Congrès national pour la défense du peuple (CNDP), formerly led by Laurent Nkunda and Bosco Ntaganda; (d) Forces démocratiques de libération du Rwanda (FDLR) (DRC); (e) Front nationaliste et intégrationnaliste (FNI) (DRC); (f) Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo (FARCEP); (g) Karenni Army (KA) (Myanmar); (h) Karen National Liberation Army (KNLA) (Myanmar); (i) Lord’s Resistance Army (LRA); (j) Mai-Mai groups in North and South Kivu, including Patriotes Résistants Congolais (PARECO) (DRC); (k) Moro Islamic Liberation Front (MILF) (Philippines); (l) New People’s Army (NPA) (Philippines); (m) Pro-Government militias in Darfur; 300 Security Council Resolution 1820, S/RES/1820 (2008), 19 June 2008, para. 1 and 5 301 Watchlist, The Security Council and children and armed conflict: Next steps towards ending violations against children, January 2008, p. 2, and Security Council Report, Cross-Cutting Report No. 1, Children and armed conflict, 4 February, 2008, p. 1 of 16 302 General Assembly, Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 47

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(n) (o) (p)

Sudan People’s Liberation Army (SPLA); Tatmadaw Kyi (Myanmar); Transitional Federal Government of Somalia (TFG).

In the PRST of the Security Council in June 2010 as a response to the SG’s annual report on CAAC, which was a significant development, the Security Council took a much stronger approach towards the persistent perpetrators, expressing “deep concern that certain parties persist in committing violations and abuses against children, and expresses its readiness to adopt targeted and graduated measures against persistent perpetrators taking into account the relevant provisions of its resolutions 1539 (2004), 1612 (2005) and 1882 (2009)”, and to this end invited:303 (a)

(b)

(c)

Its Working Group on children and armed conflict to exchange pertinent information with relevant Sanctions Committees, in particular through communication of the Working Group’s relevant recommendations; Its relevant Sanctions Committees to consider inviting more regularly the Special Representative of the Secretary-General for children and armed conflict to brief them on specific information contained in the Secretary-General’s reports; The Special Representative of the Secretary-General for children and armed conflict to share specific information contained in the Secretary-General’s reports with relevant Sanctions Committees expert groups.

Furthermore, importantly the Security Council also expressed “its intention, when establishing or renewing the mandate of relevant Sanctions Committees, to consider provisions pertaining to parties that are in violation of applicable international law relating to the rights and protection of children in armed conflict”.304 This meant that the Security Council would consider to include in the mandates of Sanctions Committees to be established and when reviewing mandates of existing committees, relevant violations of international law committed against children in armed conflict by specific parties. The Security Council also expressed “its readiness to consider specific recommendations from its Working Group on Children and Armed Conflict on violations and abuses committed against children by parties listed in the annexes of the Secretary-General’s reports, whenever they occur, with a view to consider-

303 Security Council, Statement by the President of the Security Council, S/PRST/2010/10, 16 June, 2010: In its Presidential Statement of 2009, the Security Council had invited the Working Group “to enhance its communication with relevant Security Council Sanctions Committees, including by forwarding pertinent information”, which was not as strong a language, S/PRST/2009/9, 29 April 2009 304 Security Council, Statement by the President of the Security Council, S/ PRST/2010/10, 16 June, 2010

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ing action on them”, and this wording was more specific than before and it was important that the Council put this language into the Presidential Statement.305 One important development with the 2010 Presidential Statement was that the SRSG-CAAC was invited to provide information to sanctions committees and their panels of experts, and to have such specific language in the 2010 PRST was a significant step for the Security Council.306 To ask the SRSG-CAAC to provide information to sanctions committees is to knock on the door of sanctions committees and ask: “If violations against children are going on in the country for which a sanctions committee is established why then do you not include these violations in your mandate?”307 It is notable that all of these persistent perpetrators were still listed in the annexes in the SG’s annual report on CAAC in 2011, while not separately listed, and that there had been no further action on the part of the sanctions committees until late July 2011 when the Security Council added violations against children and women in armed conflict in the designating criteria for entities and/or individuals in Somalia with regards to sanctions, and later in November 2011 when one more individual was listed for violations against children by the Sanctions Committee for DRC.308 The Security Council in resolution 1998 (2011) continued to press on the issue of the persistent perpetrators and reiterated in paragraph 9 “its determination to ensure respect for its resolutions on children and armed conflict”, and expressed its “deep concern that certain parties persist in committing violations 305 Security Council, Statement by the President of the Security Council, S/ PRST/2010/10, 16 June, 2010, and Rodrigo A., Lopéz Tovar, Mexico’s former Expert at the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 306 Rodrigo A., Lopéz Tovar, Mexico’s former expert at the SCWG-CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 307 Rodrigo A., Lopéz Tovar, Mexico’s former expert at the SCWG-CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010: In for instance SC resolution 1698 (2006) the Security Council with regards to the sanctions regime for the DRC had requested in paragraph 17 “the working group of the Security Council on children in armed conflict, the Secretary-General and his Special Representative for children in armed conflict, as well as the Group of Experts, within is capabilities and without prejudice to the execution of the other tasks in its mandate, to assist the Committee in the designation of the individuals referred to in paragraph 13 above, by making known without delay to the Committee any useful information”. However the language in the 2010 PRST was more specific and addressed all relevant country situations. 308 Security Council Resolution, S/RES/2002 (2011), 29 July 2011, Security Council Committee on Somalia and Eritrea, and List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 28 November 28, 2011, see further in the chapter on the issue of sanctions.

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and abuses against children”, as well as expressed “its readiness to adopt targeted and graduated measures against persistent perpetrators”, and to this regard:309 (c)

(d)

(e)

Requests enhanced communication between the Working Group and relevant Security Council Sanctions Committees, including through the exchange of pertinent information on violations and abuses committed against children in armed conflict; Encourages its relevant Sanctions Committees to continue to invite the Special Representative of the Secretary-General for children and armed conflict to brief them on specific information pertaining to her mandate that would be relevant to the work of the committees, and encourages the Sanctions Committees to bear in mind the relevant recommendations of the SecretaryGeneral’s report on children and armed conflict and encourages the Special Representative of the Secretary-General to share specific information contained in the Secretary-General’s reports with relevant Sanctions Committees expert groups; Expresses its intention, when establishing, modifying or renewing the mandate of relevant Sanctions regimes, to consider including provisions pertaining to parties to armed conflict that engage in activities in violation of applicable international law relating to the rights and protection of children in armed conflict.

Furthermore, the Security Council in resolution 1998 (2011) called upon the concerned member states that with regards to the persistent perpetrators they “take decisive and immediate action” against them, and that they bring them to justice for violations like recruiting and using children, killing and maiming, rape and other sexual violence, attacks on schools and/or hospitals and attacks or threats of attacks against protected persons in relation to schools and/or hospitals (para. 11). Furthermore in paragraph 21 of resolution 1998 (2011) in order to speed up and improve its response towards the persistent perpetrators, the Security Council directed: its Working Group on Children and Armed Conflict, with the support of the Special Representative for Children and Armed Conflict, to consider, within one year, a broad range of options for increasing pressure on persistent perpetrators of violations and abuses committed against children in situations of armed conflict.

All the information the Working Group on CAAC receives comes from within the UN system, and the information that is available to the public comes to

309 Security Council Resolution, S/RES/1998 (2011), 12 July 2011, paragraph 9

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the Working Group through the reports of the Secretary-General.310 The SRSGCAAC can provide information on CAAC to the Working Group, and gives briefings and presents the annual report of the Secretary-General on CAAC to the Working Group, but the Working Group only formally receives information from the reports from the Secretary-General. In this regard it was important that the Security Council in resolution 1998 (2011) in paragraph 20 first invited the Special Representative for Children and Armed Conflict “to brief the Security Council on the modalities of the inclusion of parties into the annexes of the periodic report of the Secretary-General on children and armed conflict, enabling an exchange of views.” Furthermore, to this regard the Security Council requested in paragraph 22 of resolution 1998 (2011) that his annual report on children and armed conflict of 2012 would apart from “(a) Annexed lists of parties in situations of armed confl ict on the agenda of the Security Council or in other situations, in accordance with paragraph 19 (a) of resolution 1882 (2009) and paragraph 3” of resolution 1998, also include:311 (b)

(c) (d)

Information on measures undertaken by parties listed in the annexes to end all violations and abuses committed against children in situations of armed conflict; Information on progress made in the implementation of the monitoring and reporting mechanism established in its resolution 1612 (2005); Information on the criteria and procedures used for listing and de-listing parties to armed conflict in the annexes of his periodic reports, in accordance with paragraph 3 of the present resolution, bearing in mind the views expressed by all the members of the Working Group during informal briefings to be held before the end of 2011.

In this context the importance of the verification of evidence has been noted in that verification of evidence is a significant challenge within the UN. Not all member states of the Security Council would accept if only one or a few Security Council members had verified a situation.312 The verification needs to go through the UN system, as some countries would not accept the verification of a situation that has not gone through the UN system. There are different motivations behind putting a party on the list or not. The politicization of the Working Group means that it takes longer to do the work of the Working Group, and if evidence 310 Rodrigo A., Lopéz Tovar, Mexico’s former expert at the SCWG-CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 311 Security Council Resolution 1998, S/RES/1998, 12 July 2011, Paragraph 22; The Secretary-General was asked to submit his annual report on CAAC by June 2012: The Security Council in its resolutions on CAAC regularly requests information on certain issues. 312 Rhian Checkland, UK’s expert on SCWG-CAAC, Meeting at the UK Mission to the UN, New York, August 3, 2010

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of a situation/party has gone through the proper UN system, member states of the Working Group can always refer back to the UN evidence that has been established, which has been very helpful.313 The UN verification process takes the questions away. When it is the SRSG-CAAC that reports through the reports of the UN Secretary-General, the information they issue has gone through a verification process within the UN system which the UN member states trust and accept, while they would not trust the permanent five (P5) member states. Mexico as chair pointed out the importance of including in the reports of the Secretary-General on CAAC a specific section on any action that has been taken and/or any progress on the ground for children as a result of the Working Group’s recommendations.314 Because if the Secretary-General’s reports do not include such a section, then the Working Group does not know what the results have been and/or if its recommendations have been useful. The only way for the Working Group to find out what the parties have done or not done is through the Secretary-General’s reports.315 While, as has been noted, the SRSG-CAAC can provide information on CAAC to the Working Group, and gives briefings and presents the annual report of the Secretary-General on CAAC to the Working Group, the Working Group still only formally receives information from the reports from the Secretary-General. The Secretary General’s reports are beginning to have a section on follow-up to the Working Group’s recommendations, which the Working Group has requested, a difficult thing to do.316 It is really a political message that the Working Group sends out with regards to its requests for certain actions and for a follow-up to its recommendations, as it is the Security Council that is saying this. With regards to sanctions, the Working Group in its conclusions can address sanctions committees and request them to take action on a situation, and the Working Group can send letters to sanctions committees on the situation for children in armed conflict and on violations of human rights and international humanitarian law violations against children.317 The sanctions committees would have to review that information in the context that the UN has already provided this information. It is important to consider that a sanctions committee has its own mandate, and if this mandate includes violations against international human rights and humanitarian law, they are able to look at the situation for chil313

Rhian Checkland, UK’s expert on SCWG-CAAC, Meeting at the UK Mission to the UN, New York, August 3, 2010 314 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 315 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 316 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 317 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010

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dren and their panel of experts will look at this information from the Working Group. Further, the Working Group does not have the information that the panel of experts of the sanctions committees has. As has been noted the Security Council Working Group on CAAC experiences many problems in approaching violators not on the agenda of the Security Council, and one limitation is that the Security Council cannot use targeted or graduated measures against parties not on the agenda of the Security Council.318 Also, with regards to sanctions there is at times an asymmetry of information involved as well as it is very difficult to get consensus on sanctions in the Security Council, even in cases where there is a sanctions committee.319 However to get the individuals onto the lists of the annual report of the SG is another issue. If a sanctions committee would go to the Working Group and ask “could you provide more information?”, in this situation the Working Group is limited in terms of what it can do.320 Practically what the Working Group can do is to exchange information, give recommendations to the Security Council to pay attention to specific violations, to highlight this information, by sending letters to the committees, which is already taking place. In June 2010 the Working Group had a discussion about what type of information it could exchange with the sanctions committees and what it could do to improve this exchange. It is important to put sanctions into the text because this is a way of recognizing that sanctions might help stop violations against children.321 The Working Group and the sanctions committees are all subsidiary bodies of the Security Council, and as such they are at the same level. The main issue in this context in June 2010 for the Working Group on CAAC was how to use the mandates of the sanctions committee to include CAAC issues, of which there was some progress.322 The Security Council has only so far adopted targeted and graduated measures against individuals responsible for violations of international law against children for DRC and Côte d’Ivoire, while the sanctions regime for the Sudan has the mandate to designate individuals who have committed violations of international humanitarian or human rights law, and the sanctions committee on Somalia and Eritrea with regards to Somalia has the mandate to designate enti-

318

Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 319 Fabien Fieschi, France’s former expert on the SC Working Group, Interview, Mission of France to the UN, New York, May 20, 2009 320 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 321 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010 322 Rodrigo A., Lopéz Tovar, Mexico’s former expert on the SC Working Group on CAAC, Meeting at Mexico’s Mission at the UN, New York, July 22, 2010

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ties and/or individuals for the recruitment and use of child soldiers and violations against children including the other five priority violations for the MRM. 11.5.5.2.1. The Security Council Sanctions Committee for the Democratic Republic of Congo A sanctions regime for DRC was first established with Security Council resolution 1493 (2003) with an arms embargo on all the foreign and Congolese armed groups and militias which were operating in North and South Kivu and Ituri, as well as on the groups that were not party to the Global and all-inclusive agreement in the DRC of 28 July 2003.323 The sanctions regime was further strengthened by Security Council resolution 1533 (2004), and a Security Council sanctions committee was established for DRC in March 2004 as a result, and the sanctions regime has been subsequently modified and strengthened by SC resolutions 1596 (2005), 1649 (2005), 1698 (2006), 1768 (2007), 1771 (2007), 1799 (2008) and 1896 (2009).324 The Security Council in its resolution 1698 (2006) extended “the travel and financial measures to political and military leaders recruiting or using children in armed conflict, and to individuals committing serious violations of international law involving the targeting of children in situations of armed conflict”.325 Furthermore, in its resolution1807 (2008) in paragraph 13(e), the Security Council extended “the travel and financial measures to individuals operating in the DRC and committing serious violations of international law involving the targeting of children and women in situations of armed conflict, including killing and maiming, sexual violence, abduction and forced displacement”. The Security Council specifically pinpointed the need for access and distribution of humanitarian assistance in its resolution 1857 (2008) when the Council “decided that the financial and travel measures should also apply to individuals obstructing the access to or distribution of humanitarian assistance in the eastern part of the DRC”.326 Keeping in mind that one of the six priority violations of the MRM is the denial of humanitarian access to children, this particular resolution makes it possible for the Security Council to authorize targeted measures on those individuals who are responsible for blocking humanitarian access to children. The sanctions regime was again modified in November 2010 when SC resolution 1952 extended the arms embargo, the targeted travel and financial sanctions, and then again with SC resolution 2021 in November 2011 for anoth323 Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo, accessed August 12, 2010 324 Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo, accessed August 12, 2010 325 United Nations Security Council, Report of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo, S/2009/667, 31 December 2009 326 Security Council Resolution 1896 (2009), paragraph 3 and 4 (f).

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er year.327 In December 2009 with resolution 1906, MONUC was asked by the Security Council “to monitor the implementation of the measures imposed by resolution 1896 (2009), in cooperation with the Group of Experts, and exchange information with the Group of Experts on arms shipments, illegal trafficking of natural resources, support to armed groups as well as in particular child recruitment and human rights abuses targeting women and children”.328 This was followed up in resolution 1952 in 2010, in which the Security Council encouraged the UN’s Organization Stabilization Mission in the DRC (MONUSCO) “to continue to share all relevant information with the Group of Experts especially on the recruitment and use of child soldiers and the targeting of women and children in situations of armed conflicts” (para. 13).329 The criteria for the designation of sanctions by the sanctions committee for the DRC are a) persons and entities acting in violation of the arms embargo; b) political and military leaders of foreign armed groups operating in the DRC, who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups; c) political and military leaders of Congolese militias receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilization and reintegration processes; d) political and military leaders operating in DRC and recruiting or using children in armed conflicts in violation of applicable international law; e) individuals operating in the DRC and committing serious violations of international law involving the targeting of children or women in situations of armed confl ict, including killing and maiming, sexual violence, abduction and forced displacement; f) individuals obstructing the access to or the distribution of humanitarian assistance in the eastern part of DRC; and g) individuals or entities supporting the illegal armed groups in the eastern part of the DRC through illicit trade of natural resources.330 The Democratic Republic of Congo has been a case which has shown that many members of the Security Council do not want to engage forcefully with perpetrators of children’s rights as the Security Council Report has pointed out.331 The Security Council in its resolution 1698 (2006) decided that individuals who recruited and used children as child soldiers and who were responsible for violations such as the killing and maiming of children, sexual violence, abductions 327 See S/RES/1952 (2010), 29 November 2010, and S/RES/2021 (2011), 29 November 2011. The information in this section on sanctions and DRC is the latest information at the time of writing, 31 December 2011. 328 Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo, accessed August 12, 2010 329 Security Council Resolution 1952, 29 November, 2010, S/RES/1952 (2010), paragraph 13 330 Renewed by Security Council Resolution S/RES/1857 (2008), paragraph 4 331 Security Council Report, Cross-Cutting Report No. 1, Children and armed conflict, 4 February, 2008, p. 1of 16, www.securitycouncilreport.org

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and forced displacement of children should be on the designated list for sanctions in DRC.332 However there was not a list set up of any individual perpetrators or entities as called for, which was of “grave concern” according to the Working Group, and which was communicated by the Council president in January 2008 to the Sanctions Committee for the DRC.333 The Sanctions Committee for DRC decided on 13 May 2009, after internal discussions on the report of the Group of Experts and its recommendations, to dispatch a letter to the SRSG-CAAC for further information, and as a result the SRSG-CAAC attended a meeting of the Committee on 21 May 2009 where she gave a presentation on the situation for children in armed conflict and for children in DRC.334 This was the first time a sanctions committee had been briefed by the SRSG-CAAC and on the situation for children in armed conflict.335 The presentation by the SRSG-CAAC had a direct effect on the work of the Sanctions Committee as with regards to eight of the individuals already on the sanctions list for DRC (updated in March 2009), Jérôme Kakwavu Bukande, Germain Katanga, Thomas Lubanga, Khawa Mandro, Leopold Mujyambere, Dr. Ignace Murwanashyaka, Mathieu Chui Ngudjolo, Laurent Nkunda and Bosco Taganda, the designation and justification criteria were extended for them in the list updated on 1 December 2010 to also include violations committed against children in armed conflict, and a new individual, Innocent Zimurinda, was added to the list including for violations committed against children. In the December 2010 updated list, the designation and justification for the listing of 13 individuals included a very comprehensive list of violations committed against children, which showed that the Sanctions Committee had taken into account the information given by the SRSG-CAAC.336 In the updated list 332 Security Council Report, Cross-Cutting Report No. 1, Children and armed conflict, 4 February, 2008, p. 1of 16, www.securitycouncilreport.org; see also Security Council Resolution 1698, 31 July, 2006, paragraph 13: “… - Political and military leaders recruiting or using children in armed confl ict in violation of applicable international law; -Individuals committing serious violations of international law involving the targeting of children in situations of armed confl ict, including killing and maiming, sexual violence, abduction and forced displacement;” 333 Security Council Report, Cross-Cutting Report No. 1, Children and armed conflict, 4 February, 2008, p. 1 of 16, www.securitycouncilreport.org 334 Security Council, Letter dated 31 December 2009 from the Chairman of the Security Council Committee established pursuant to Resolution 1533 (2004) concerning DRC addressed to the President of the Security Council, S/2009/667, 31 December 2009, para. 22; and Security Council Report, Children and Armed Confl ict, June 2010, www.securitycouncil report.org/site/p.aspx?c=glKWLeMTIsG&b=6068447&print… 335 Security Council Report, Children and Armed Confl ict, June 2010, www.securitycouncil report.org/site/p.aspx?c=glKWLeMTIsG&b=6068447&print… 336 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 1 December 2010

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of 1 December 2010, with regards to the designation and justification for having Jérôme Kakwavu Bukande, the former President of UCD/FAPC, listed the Sanctions Committee referred to the Office of the SRSG-CAAC, stating that “[a] ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children in Ituri in 2002”.337 The Sanctions Committee also stated that Jérôme Kakwavu Bukande was “one of five senior FARDC officers who had been accused of serious crimes involving sexual violence”, and that when the Security Council visited DRC in 2009 it had given information about these cases to the government.338 The designation and justification for Germain Katanga, the FRPI chief, read partly “[a]ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children from Ituri from 2002 to 2003”, and for Thomas Lubanga, President of the UPC/L, “[a]ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children from Ituri from 2002 to 2003”.339 With regards to Thomas Lubanga it is notable that the DRC Sanctions Committee still in the designation and justification criteria in its “List of individuals and entities subject to measures”, updated in March 2009, only included that he had been “involved in trafficking of arms, in violation of the arms embargo”, and in the identifying information it stated that while Lubanga had been arrested and transferred to the International Criminal Court (ICC), it was only noted that he was being tried for war crimes.340 There was no note that he was only being tried for having enlisted, conscripted and used children under

337 All the information in these paragraphs comes from the List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 1 December 2010 338 Jerome Kakwavy Bukande was arrested in June 2010 and is imprisoned in Kinshasa and judicial proceedings against him has begun, The List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 1 December 2010 339 Germain Katanga has been transferred to the ICC in the Hague, the government handed him over to the ICC October 18, 2008; Thomas Lubanga was arrested in March 2005 in Kinshasa and handed over by the government to the ICC on March 17, 2006 and the trial is ongoing since December 2008, List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 1 December 2010 340 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraphs 9, 11 and 14 of Resolution 1807 (2008), Updated on 3 March 2009

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the age of 15 years, that he was transferred to the Hague in 2006, and that this was the first ever trial by the ICC, which began on 26 January 2009.341 With regards to Germain Katanga and Mathieu Ngudjolo Chui it is also notable that the Sanctions Committee’s “List of individuals and entities subject to measures”, updated in March 2009, did not take note of that they were awaiting trial at the International Criminal Court (for war crimes including “using children under the age of fifteen to take active part in the hostilities, sexual slavery and rape, and crimes against humanity including rape and sexual slavery”).342 While the ICC charges do not specifically mention children with regards to rape and sexual slavery, these include such crimes against children. Katanga surrendered to the ICC in October 2007 and Ngudjolo Chui was arrested and transferred to the ICC in February 2008, the decision on their confirmation of charges was on 26 September 2008 and their joint trial began 24 November 2009.343 Khawa Panga Mandro, Ex-President of PUSIC, was listed partly because, “[a] ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children from 2001 to 2002”.344 For Sylvestre Mudacumura, FDLR Commander, part of the designation and justification was more specific, reading “[a]ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for 27 cases of recruitment and use of children by troops under his command in North Kivu from 2002 to 2007”. He is still a FDLR/FOCA military commander. For Leopold Mujyambere, Commander of the Second Division of FOCA/ the Reserve Brigades (an FDLR armed branch), the listing and justification referred to the UNSC DRC Sanctions Committee Group of Experts and evidence gathered in its report from 13 February 2008 in which it had detailed “girls recovered from FDLR-FOCA had previously been abducted and sexually abused. Since mid-2007, FDLR-FOCA, which previously recruited boys in their mid to late teens, has been forcefully recruiting youth from the age of 10 years. The youngest

341 ICC-CPI-20090123-PR388, Press Release: 23.01.2009, Opening of the First Trial of the Court on Monday 26 January 2009: For the First Time in the History of International Law the Victims Will Fully Participate in the Proceedings 342 ICC-01/04-01/07, Case The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, http://www.icc-cpi.int/Menus/ICC/Situations%20and%2-Cases/Situations/ Situation%20IC... 343 ICC-01/04-01/07, Case The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, http://www.icc-cpi.int/Menus/ICC/Situations%20and%2-Cases/Situations/ Situation%20IC... 344 Khawa Panga Mandro, was arrested in October 2005 in Kisangani and was tried but acquitted, and then was transferred to Kinshasa and held because of new charges including crimes against humanity, war crimes, murder, aggravated assault and battery, List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010

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are then used as escorts, and older children are deployed as soldiers on the frontline, in violation of Security Council resolution 1857 (2008) OP4 (d) and (e).”345 The listing designation and justification for Dr. Ignace Murwanashyaka, President of the FDLR and supreme commander of the FDLR armed forces, partly also referred to the SRSG-CAAC reading: “According to the Office of the SRSG on Children and Armed Conflict, he held command responsibility as President and military commander of FDLR for recruitment and use of children by the FDLR in Eastern Congo.”346 This was done as well for Mathieu Chui Ngudjolo (Alias Cui Ngudjolo), FNI Chief of Staff and former Chief of Staff of the FRPI, which read: “According to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children under 15 years old in Ituri in 2006.”347 The designation and justification for Laurent Nkunda, former RCD-G General, was that “[a]ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for 264 cases of recruitment and use of children by troops under his command in North Kivu from 2002 to 2009”.348 While he was finally arrested in Rwanda in January 2009, and he is no longer the President of CNDP, he continues to exercise control over CNDP as well as its international network. 345 The Sanctions Committee for DRC added Leopold Mujyambere to its assests freeze and travel ban list on March 3, 2009, Security Council SC/9608, Sanctions Committee Concerning Democratic Republic of Congo Adds Four Individuals to Assets Freeze, Travel Ban List, 3 March 2009, http://www.un.orgNews/Press/docs/2009/ sc9608.doc.htm; and List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010 346 Dr. Ignace Murwanashyaka was arrested on November 17, 2009 by German Federal Police because of suspicions of having committed crimes against humanity and war crimes in DRC and there were additional charges that concerned “the forming and membership of a foreign terrorist organization”. He continued to be known as the President of the FDLR-FOCA political branch and supreme commander of the FDLR armed forces as of November 2009; The List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010, and List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010 347 He is being jointly tried together with Germain Katanga by the ICC, and arrived at the ICC in the Hague February 7, 2008, the Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, ICC-01/04-01/07; and List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010 348 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010

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For Pacifique Ntawunguka, Commander of the First Division of FOCA (an FDLR armed branch), and Stanislas Nzeyimana, Deputy Commander of the FOCA, again reference is made to the UNSC DRC Sanctions Committee Group of Experts and evidence gathered in its report from 13 February 2008 that detailed that “girls recovered from FDLR-FOCA had previously been abducted and sexually abused. Since mid-2007, FDLR-FOCA, which previously recruited boys in their mid to late teens, has been forcefully recruiting youth from the age of 10 years. The youngest are then used as escorts, and older children are deployed as soldiers on the frontline, in violation of Security Council resolution 1857 (2008) OP4 (d) and (e).”349 For notorious Bosco Taganda, UPC/L military commander, reference is made to the SRSG-CAAC stating that “[a]ccording to the Office of the SRSG on Children and Armed Conflict, he was responsible for recruitment and use of children in Ituri in 2002 and 2003, and 155 cases of direct and/or command responsibility for recruitment and use of children in North Kivu from 2002 to 2009”. After Lkunda’s arrest, Bosco is the de facto military head of CNDP from November 2009, and he “has been instructed to manage integration into FARDC and given the post of deputy operational commander for Kimia II although this is officially denied by the FARDC”.350 With regards to Innocent Zimurinda, Lieutenant Colonel and one of the commanders of the FARDC 231st Brigade, the lengthy designation and justification included that “[a]ccording to multiple sources, Lt Col Innocent Zimurinda, in his capacity as one of the commanders of the FARDC 231st Brigade, gave orders that resulted in the massacre of over 100 Rwandan refugees, mostly women and children, during an April 2009 military operation in the Shalio area”.351Reference was also made to the fact that the UNSC Sanction Committee’s Group of Experts had reported that Zimurinda “was witnessed first hand refusing to release three children from his command in Kalehe on August 29, 2009”. Furthermore the designation and justification continued that “[a]ccording to multiple sources, Lt Col Innocent Zimurinda, prior to the CNDP’s integration into FARDC, participated in a November 2008 CNDP operation that resulted in the massacre of 89 civil349 The Sanctions Committee for DRC added Pacifique Ntawunguka and Stanislas Nzeyimana to its assests freeze and travel ban list on March 3, 2009; Security Council SC/9608, Sanctions Committee Concerning Democratic Republic of Congo Adds Four Individuals to Assets Freeze, Travel Ban List, 3 March 2009, http://www. un.orgNews/Press/docs/2009/sc9608.doc.htm 350 All the information in these paragraphs comes from the List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010. 351 Zimurinda had been an officer in the CNDP which integrated in early 2009 into the national armed forces the FARDC, List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010.

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ians, including women and children, in the region of Kiwanja”. In the same case reference was made to the fact that 51 human rights groups who worked in eastern DRC in March 2010 had posted a complaint online which alleged that Zimurinda “was responsible for multiple human rights abuses involving the murder of numerous civilians, including women and children, between February 2007 and August 2007”, and in the same complaint he was also accused of being “responsible for the rape of a large number of women and girls”.352 Finally, referring to a statement given by the SRSG-CAAC on May 21, 2010, Zimurinda had “been involved in the arbitrary execution of child soldiers, including during operation Kimia II”. Furthermore, referring to the same statement, the designation and justification read that Zimurinda “denied access by the UN Mission in the DRC (MONUC) to screen troops for minors. According to the UNSC DRC Sanctions Committee’s Groups of Experts, Lt Col Zimurinda holds direct and command responsibility for child recruitment and for maintaining children within troops under his command.” All of these individuals were still listed in the Sanctions Committee’s updated list of individuals and entities of 28 November 2011 with the same designating and justification criteria.353 In the November 2011 updated list one more individual was listed for violations against children, Ntabo Ntaberi Sheka, Commander-in-Chief of the Nduma Defence of Congo, the Mayi Mayi Sheka’s political branch, and the designation and justification criteria for him stated that he “is the political leader of a Congolese armed group that impedes the disarmament, demobilization, or reintegration of combatants”, and that he had “also committed serious violations of international law involving the targeting of children”, and that “Ntabo Ntaberi Sheka planned and ordered a series of attacks in Walikale territory from 30 July to 2 August 2010, to punish local populations accused of collaborating with Congolese Government forces. In the course of the attacks, children were raped and were abducted, subjected to forced labour and subjected to cruel, inhumane or degrading treatment. The Mayi Mayi Sheka militia group also forcibly recruits boys and holds children in their ranks from recruitment drives.”354 That the Sanctions Committee for DRC has expanded and continues to expand its list of entities and individuals to this degree shows that it is necessary for the Sanctions Committees to be briefed by the SRSG-CAAC on violations as they pertain to children in armed conflict. It also shows that this particular Sanctions 352 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Updated on 1 December 2010. 353 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 28 November 28, 2011 354 List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 13 and 15 of Security Council Resolution 1596 (2005), as Renewed by Paragraph 3 of Resolution 1952 (2010), Last Updated on 28 November 28, 2011

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Committee is open to this kind of information and seems to understand its significance. In the case of the Sanctions Committee for DRC such a briefing has had the direct effect of not only expanding the designation and justification criteria for those individuals already listed, but also the number of individuals listed. 11.5.5.2.2. The Security Council Sanctions Committee for Côte d’Ivoire The UN Secretary-General reported in November 2010 that the respect for the rights of women and girls worsened in Côte d’Ivoire between 20 May and 23 November 2010, and then mainly in the central, western and northern parts of the country. Furthermore the Secretary-General reported that there was “a significant increase in sexual and gender-based violence, including against children”.355 During the reporting period 56 rape cases had been reported of which the majority of the victims were children and 11 perpetrators had been arrested at the time. Furthermore, the human rights officers of UNOCI had during the same period of time registered five cases of forced marriage and 216 girls who had been victims of female genital mutilation and five children all under the age of two who had had been reported missing were found dead in the Korhogo area.356 In this context it is important to note that violence against children including sexual violence continued during the peace process which Mc Hugh has described as “to this day children continue to lose their lives as a direct consequence of the environment of high insecurity and the breakdown of law and order of institutions. The most immediate threat to the lives of children remains inter-community tensions and violence.”357 Following SC resolutions 1612 and 1882, UNOCI maintained their monitoring and reporting obligations on grave violations against children, and worked “to mainstream child protection and child rights” by conducting regular training sessions for the military, police and civilians staff members, as well as training for community leaders, women’s groups and youth associations.358 UNOCI also worked together with other UN agencies and international NGOs

355

United Nations, Security Council, Twenty-sixth progress report of the SecretaryGeneral on the United Nations Operation in Côte d’Ivoire, 23 November 2010, S/2010/600, para. 49, p. 12 356 United Nations, Security Council, Twenty-sixth progress report of the SecretaryGeneral on the United Nations Operation in Côte d’Ivoire, 23 November 2010, S/2010/600, para. 49, p. 12 357 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 13 358 United Nations, Security Council, Twenty-sixth progress report of the SecretaryGeneral on the United Nations Operation in Côte d’Ivoire, 23 November 2010, S/2010/600, para. 50, p. 12

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to help the government to “develop a national institutional framework for child protection”.359 A sanctions regime for Côte d’Ivoire was established by Security Council resolution 1572 (2004), and the regime and its mandate have been renewed and extended several times including with resolutions 1584 (2005),1643 (2005), 1727 (2006), 1782 (2007) and 1946 (2010).360 The Security Council has stated many times that it is fully prepared to impose targeted measures against those individuals as designated by the Committee who are a threat to the peace and national reconciliation process in Côte d’Ivoire, responsible for attacking or obstructing the actions of UNOCI, the French forces, the Special Representative of the SecretaryGeneral, the Facilitator or his Special Representative in Côte d’Ivoire, obstacles to the free movement of UNOCI and the French forces, as well as for those who are responsible for serious violations of human rights and international humanitarian law, and for inciting public hatred and violence.361 While violations against children are not specifically designated, such violations are covered in the “serious violations of human rights and international humanitarian law”. In February 2006 the Security Council put three individuals, Charles Blé Goudé, Eugene N’Goran Kouadio Djué and Martin Kouakou Fofie, on its list of sanctions, reaffirming its readiness to impose individual measures provided for in resolution 1572 (2004) including a travel ban and freezing of assets.362 The designation and justification criteria for these three individuals have been the same since 2006, and the list of individuals subject to paragraphs 9 and 11 of resolution 1572 (2004) and paragraph 4 of resolution 1643 (2005) has eight individuals listed, including Laurent Gbagbo, the former President, among other things for having rejected the results from the presidential elections.363 The International Criminal Court charged Gbagbo for being an indirect co-perpetrator and individually criminally responsible for crimes against humanity, that is

359 United Nations, Security Council, Twenty-sixth progress report of the SecretaryGeneral on the United Nations Operation in Côte d’Ivoire, 23 November 2010, S/2010/600 360 Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, www.un.org/sc/committees/1572 361 Security Council Resolutions 1643 (2005), 1727 (2006), 1782 (2007),1893 (2009) and 1946 (2010, see also Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, www.un.org/sc/committees/1572/ 362 On 7 February 2006, the Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire approved the following list of individuals subject to the measures imposed by paragraphs 9 and 11 of resolution 1572 (2004), as renewed by paragraph 1 and amended by paragraph 4 of resolution 1643 (2005). 363 Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, List of individuals subject to paragraphs 9 and 11 of resolution 1572 (2004) and paragraph 4 of resolution 1643 (2005), last updated on March 30, 2011 and October 28, 2011

The Work of the United Nations on Children and Armed Conflict

murder, rape and other forms of sexual violence, persecution and other inhuman acts that took place in Côte d’Ivoire from 16 December 2010 to 12 April 2011, and he was transferred to the ICC detention centre in the Hague on 30 November 2011.364 It has only been for Martin Kouakou Fofie, the Chief Corporal New Force Commandant for the Korhogo Sector, that the designation and justification criteria have specifically mentioned children and the criteria include that under his command he has been “engaged in recruitment of child soldiers, abductions, imposition of forced labor, sexual abuse of women, arbitrary arrests and extrajudicial killings, contrary to human rights conventions and to international humanitarian law”.365 For Charles Blé Goudé, who was the youth minister for President Gbagbo, the Security Council Sanctions committee’s justification for sanctioning him reads as follows:366 Leader of COJEP (“Young Patriots”), repeated public statements advocating violence against United Nations installations and personnel, and against foreigners; direction of and participation in acts of violence by street militias, including beatings, rapes and extrajudicial killings; intimidation of the United Nations, the International Working Group (IWG), the political opposition and independent press; sabotage of international radio stations; obstacle to the action of IWG, the United Nations Operation in Côte d’Ivoire, (UNOCI), the French Forces and to the peace process as defined by resolution 1643 (2005).”

There is no direct mention of violations against children, while the “acts of violence” such as rapes and extrajudicial killings could involve children as victims. For Eugène N’Goran Kouadio Djué, the leader for the Union des Patriotes pour la Libération Totale de la Côte d’Ivoire (UPLTCI), the justification for putting Djué on the sanctions list include repeated public statements advocating 364 ICC, New Suspect in the ICC’s Custody: Laurent Gbagbo Arrived at the Detention Centre, ICC-CPI-20111130-PR747, Press Release: 30.11.2011, The Prosecutor v. Laurent Koudou Gbagbo 365 Security Council Committee concerning Côte d’Ivoire issues list of individuals subject to measures imposed by resolution 1572 (2004), SC/8631, 07/02/2006, and Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, List of individuals subject to paragraphs 9 and 11 of resolution 1572 (2004) and paragraph 4 of resolution 1643 (2005), last updated on March 30, 2011 and October 28, 2011 366 Security Council Committee concerning Côte d’Ivoire issues list of individuals subject to measures imposed by resolution 1572 (2004), SC/8631, 07/02/2006, and Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, List of individuals subject to paragraphs 9 and 11 of resolution 1572 (2004) and paragraph 4 of resolution 1643 (2005), last updated on March 30, 2011 and October 28, 2011

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violence against UN installations and personnel, and against foreigners, the direction of and participation in acts of violence by street militias, including beatings, rapes and extrajudicial killings.367 Again, children have not been specifically mentioned, but could be the victims of the “acts of violence” he has been responsible for. 11.5.5.2.3. The Security Council Sanctions Committee for the Sudan/Darfur For Sudan a sanctions regime was established with resolution 1556 (2004) with an arms embargo on all non-governmental entities and individuals, including the Janjaweed in North, South and West Darfur.368 The sanctions regime was expanded and strengthened by SC resolution 1591 (2005) which established a sanctions committee, requested that a Panel of Experts be established, and that in addition travel bans and the freezing of all funds, financial assets and economic resources would be imposed against individuals:369 who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities, violate the (arms embargo) … or are responsible for offensive military overflights.

Four individuals have so far been put on the list of the Sanctions Committee for Sudan, however in only one case, for Sheikh Musa Hilal the Paramount chief of the Jalul Tribe in North Darfur, is the designation and justification criteria that he “as the Paramount Chief he had direct responsibility for these actions and is responsible for violations of international humanitarian and human rights law and other atrocities”, however in none of the cases has grave violations against children been specifically part of the designation criteria.370 The reference to “these actions” concern attacks against villages and IDP camps. 367 Security Council Committee concerning Côte d’Ivoire issues list of individuals subject to measures imposed by resolution 1572 (2004), SC/8631, 07/02/2006, and Security Council Committee established pursuant to resolution 1572 (2004) concerning Côte d’Ivoire, List of individuals subject to paragraphs 9 and 11 of resolution 1572 (2004) and paragraph 4 of resolution 1643 (2005), last updated on March 30, 2011 and October 28, 2011 368 Resolution 1556 (2004), Adopted by the Security Council at its 5015th meeting, on 30 July 2004, S/RES/1556 (2004) 369 Resolution 1591 (2005), Adopted by the Security Council at its 5153rd meeting, on 29 March 2005, S/RES/1591 (2005) 370 Security Council Committee established pursuant to resolution 1591 (2005) concerning the Sudan, List of individuals subject to the measures imposed by paragraph 3 of resolution 1591 (2005), www.un.org/sc/committees/1591, accessed April 25, 2011 and November 16, 2011

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11.5.5.2.4. The Security Council Sanctions Committee on Somalia and Eritrea The Sanctions Committee on Somalia and Eritrea was briefed by the Special Representative of the Secretary-General on CAAC in May in 2011, where she suggested that the Committee would include violations against children in its listing criteria.371 The Security Council to its Sanctions Committee on Somalia and Eritrea in its resolution 2002 (2011) reiterated: its condemnation in the strongest terms of all acts of violence, abuses and violations, including sexual and gender-based violence, committed against civilians, including children, in violation of applicable international law, stressing that the perpetrators must be brought to justice, recalling all its relevant resolutions on women, peace and security, on children and armed conflict, and on the protection of civilians in armed conflicts, and considering therefore that the existing designation criteria for targeted measures under resolution 1844 (2008) need to be reaffirmed and further strengthened.372

In this regard the Security Council acted under Chapter VII of the UN Charter and decided in paragraph 1 of resolution 2002 that individuals and entities as according to resolution 1844 will risk sanctions if they: … (d) (e)

as being political or military leaders recruiting or using children in armed conflicts in Somalia in violation of applicable international law; as being responsible for violations of applicable international law in Somalia involving the targeting of civilians including children and women in situations of armed conflict, including killing and maiming, sexual and genderbased violence, attacks on schools and hospitals and abduction and forced displacement.

While not specifically mentioning children, the Security Council in addition in resolution 2002 (2011) paragraph 5 demanded: that all parties ensure full, safe and unhindered access for the timely delivery of humanitarian aid to persons in need of assistance across Somalia, underlines its grave concern at the worsening humanitarian situation in Somalia, urges all parties and armed groups to take appropriate steps to ensure the safety and security of humanitarian personnel and supplies, and expresses its readiness to apply targeted 371

Security Council Report, Cross-Cutting Report No. 1, Children and Armed Conflict, 6 July 2011, p. 5 of 22, www.securitycouncilreport.org/site/p. aspx?c=glKWLeMTIsG&b=7539609&p… 372 Security Council Resolution 2002 (2011), S/RES/2002 (2011)

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sanctions against such individuals and entities if they meet the listing criteria set out in paragraph 1 (c) above

The listing criteria in paragraph 1(c) reads: “as obstructing the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia”. At the time of writing, of the one entity, Al-Shabaab, and the ten individuals subjected to the travel ban, freezing of assets and targeted arms embargo, as according to resolution 1844 (2008), the designating criteria for this entity or the individuals do not as of yet include the violations against children and/or women as are provided for in Security Council resolution 2002 (2011).373 However the designating criteria for violations against children and women are firmly established by resolution 2002 (2011) with regards to Somalia. 11.5.6.

The United Nations Monitoring and Reporting Mechanism and Accountability

11.5.6.1.

Actions to Hold Persistent Violators of Grave Violations Against Children Accountable

In order to address the fact that despite that the issues of CAAC are on the agenda of the Security Council, the existence of the Security Council Working Group on CAAC and the activities of the MRM, perpetrators are not held accountable and child rights violations continue without interference, the organization Conflict Dynamics carried out a project on the work and actions taken by the Security Council and its Working Group on CAAC regarding children in armed conflict.374 Specifically the project focused on three actions, the authorization of targeted sanctions, referral of a situation to international criminal bodies, and substantive adjustment to the mandate of UN peace-keeping missions, that the Security Council and its Working Group on CAAC can take as a response to hold persistent violators of CAAC accountable. The project showed that the Security Council had not applied any of these three actions, in situations such as in Afghanistan, Burundi or Colombia, which were at the time of the study among those countries which had been identified for seven years or more in the

373 List of individuals and entities subject to the measures imposed by paragraphs 1, 3 and 7 of Security Council resolution 1844 (2008) – as of July 28, 2011, www.un.org/sc/ committees/751/pdf/1844_cons_list.pdf, latest list accessed November 16, 2011, and Security Council Committee on Somalia and Eritrea adds two individuals to list of individuals and entities, SC/10350, 29 July 2011 374 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009

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SG’s report on CAAC.375 As was revealed during the project, some reasons as to why the SC had not taken any effective actions were due to lack of institutional coordination, national interests overriding the best interest of the child, and poor institutional follow-up.376 As a result Conflict Dynamics suggested some actions and principles that these bodies could employ in order to improve the response to hold the perpetrators of grave violations against CAAC accountable. The organization underlined the need for the “accountability gap” between violations and response to be narrowed down, and since the actions so far taken by the Security Council had not corresponded to “the gravity of the violations committed”, a new improved approach needed to be employed so that the credibility of the Security Council in terms of what it does with regards to grave violations against CAAC would not erode. The project singled out four characteristics of a situation or conflict that would help the Security Council and its working group on CAAC to determine and organize which alternative responses are available so that perpetrators of grave violations of CAAC can be held accountable, and they consisted of: “(I) situation on/not on the Security Council agenda; (II) existence/ absence of an U.N. Security Council sanctions regime; (III) presence/ absence of an U.N. Security Council-mandated peace operation; (IV) situation within/ outside the jurisdiction of a competent international criminal body”.377 In the study some reasons stood out as to why the Security Council and the Security Council Working Group on CAAC had not taken more forceful action regarding the child rights violations committed in armed conflict, and they included:378 (a) (b)

A general reluctance on the part of some UNSC members to authorize targeted sanctions against certain Member States/situations; a feeling by some Member States that the Security Council has limited options at its disposal for taking effective action, especially in cases where the situation was/is not on the agenda of the UNSC;

375 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 24 376 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 25 377 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. iii 378 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. iii: Since this study the killing and maiming of children, rape and sexual violence against children, and attacks against schools and/or hospitals and/or related protected persons are also grounds for triggering the listing of parties to the annexes, SC resolutions 1882 (2009) and 1998 (2011).

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(c)

(d)

(e)

gravitation within the Security Council Working Group, over time, towards discussion of- and authorization of select tools in the ‘toolkit’ around which it is easier to gain consensus; the fact that triggering for ‘listing’ or ‘de-listing’ of parties in the annexes of the Secretary-General’s reports is based solely on recruitment and use of child soldiers, just one of the six grave violations; the significant workload of the Security Council itself and its Sanctions Committees.

In addition the study showed that the Security Council and its Working Group on CAAC had failed to take action in cases of persistent violations because of a range of issues such as that CAAC is considered a “soft” issue, and that targeted sanctions and their authorization are linked to “hard” and “realpolitik” issues like the conduct of hostilities, exploitation of natural resources, because of delays within the Working Group due to procedural or process-related issues, because of limited coordination between the SCWG-CAAC and the Security Council when it comes to synchronizing reporting to the Working Group on a specific situation with the work of the Security Council to renew sanctions or the mandate of a peace mission, because of limited coordination between the Security Council Working Group and the sanctions committees (with one exception being the Sanctions Committee for DRC and the good communication with the WG), because of lack of political will to designate individuals as subjects of targeted sanctions also when “violations of IHL and human rights law” or “recruitment, use or targeting of children” are identified among the criteria for designation, and lastly importantly because of limited coherence within the SC on the various inter-related thematic agenda items such as with CAAC and the Protection of Civilians in Armed Conflict.379 The project outlined some specific principles which were suggested to guide future action by the Security Council with regards to grave violations against CAAC, and these included: “(1) Tailor the UNSC action to fit the context and target; (2) Insulate the humanitarian objectives of UNSC action from other political objectives; (3) Focus on entities, not on countries or situations; (4) Pursue a transparent, graduated approach in response to non-compliance; (5) Don’t threaten to employ targeted sanctions unless there is the political will to follow through; (6) Ensure consistency between trigger mechanisms and monitoring requirements.”380 The project suggested the following action to improve the accountability of perpetrators of grave violations against CAAC: “(1) Assessing options in light of the particular context; (2) A thematic sanctions committee on CAAC; 379 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 23-24 380 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. iii

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(3) Improving U.N. institutional coordination; (4) Consideration of new types of targeted sanctions; (5) Increased recourse to the ICC; (6) Supporting action by national authorities and third-party States; and (7) Regional arrangements.”381 While the Security Council frequently has stated its intent to impose targeted measures, the Council had only authorized targeted sanctions in 16 per cent of situations identified in the SG’s annual reports on CAAC and the annexes between 1999 and March 2009.382 Other actions that the Security Council has taken with regards to CAAC are “specific tasks pertaining to children in mandates of UN peace operations” and the referral of one situation to the ICC.383 With regards to peace operations, in DRC, for instance MONUC, which was established in 1999 by SC resolution 1279, and its mandate was renewed in 2000 by Security Council resolution 1291 and several times after that until 2010 when in transferred into MONUSCO, the mission was tasked from the beginning to provide assistance to children such as in SC resolution 1291 “to facilitate humanitarian assistance and human rights monitoring with particular attention to vulnerable groups including women, children and demobilized child soldiers”, or like in Security Council resolution 1565 in 2004, making reference to the Security Council resolutions on children in armed conflict 1379 (2001), 1460 (2003) and 1539 (2004) to “assist in the promotion and protection of human rights, with particular attention to women, children and vulnerable persons, investigate human rights violations to put an end to impunity, and continue to cooperate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice …”.384 With the establishment of MONUSCO by Security Council resolution 1925, adopted on 28 May 2010, the Security Council stated in resolution 1925 that it remained “greatly concerned by the humanitarian and human rights situation in areas affected by armed conflicts, condemning in particular the targeted attacks against the civilian population, widespread sexual violence, recruitment and use of child soldiers and extra judicial executions”, and recalled “its resolutions 1325 (2000) and 1888 (2009) …, its resolution 1894 (2009) on the protection of civilians in armed conflict, and its resolution 1882 (2009) on children in armed conflict pertaining to parties in the armed conflict, and recalling the conclusions of the Security Council Working Group on Children and Armed Conflict

381

Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. iv 382 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 19 383 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 17 384 Security Council Resolution, S/RES/1291 (2000), 24 February, 2000, and Security Council Resolution, S/RES/1565 (2004), 1 October, 2004

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pertaining to parties in the armed conflict …”.385 The Security Council decided that MONUSCO should have the mandate and in an order of priority begin with the protection of civilians “to ensure the effective protection of civilians, including humanitarian personnel and human rights defenders, under imminent threat of physical violence, in particular violence emanating from any of the parties engaged in the conflict” (priority (a)) and “to work closely with the Government to ensure the implementation of its commitments to address serious violations against children, in particular the finalization of the Action Plan to release children present in the FARDC and to prevent further recruitment, with the support of the Monitoring and Reporting Mechanism” (priority (e)).386 Furthermore, the Security Council called upon the government of DRC to build on its cooperation with the SRSG-CAAC and with the SRSG on sexual violence in conflict (para. 14). Of all the situations listed in the annexes to the SG’s annual reports, the Security Council has only referred the situation in Darfur to the ICC by its resolution 1593 in 2005, and in this case while the Office of the Prosecutor of the ICC “presented evidence concerning those individuals who bear the greatest responsibility for the most serious crimes committed in Darfur”, the Prosecutor did not specifically include grave violations against children.387 In most of the cases where the SC Working Group on CAAC has used measures/actions from its toolkit, grave violations against children still go on unabated and the issues that are being raised are whether it might be too early to make any determination as to whether the toolkit is being used effectively enough when used in a graduated manner, or whether the tools are in fact not effective enough, or “the types of tools being employed are not being effectively matched to the objective, or effectively combined with other actions”.388 This is of special relevance with the expansion of the triggers. It is important to keep in mind that in the case of Sri Lanka, as an example, since the only trigger was on child soldiers, other violations committed by the different parties against children, such as the killing and maiming of children,

385 Security Council Resolution, S/RES/1925 (2010), 28 May 2010 386 Security Council Resolution, S/RES/1925 (2010), 28 May 2010, para. 12 (a) and (e): the Security Council presented a list of priorities from (a) to (t), which were to be addressed in that order. 387 Security Council Resolution, S/RES/1593 (2005), 31 March 2005; Press Release, the Prosecutor of the ICC opens investigation in Darfur, ICC-OTP-0606-104; and Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 18 388 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 19

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attacks against schools and hospitals, were not properly addressed and therefore the perpetrators of these crimes were never held accountable.389 11.5.6.2.

Making the United Nations Monitoring and Reporting Mechanism More Effective

The annual country-specific reports on CAAC by the Secretary-General, drafted by the country task forces on MRM, discuss in more detail the situations that have been listed in the annexes to the annual report on CAAC by the SecretaryGeneral.390 Because the MRM country reports discuss both the violations that have taken place and the actions taken or not taken to address these violations by a government and/or those responsible for these violations and/or by child rights actors on the ground, these reports have come to be seen as “establishing structures of accountability for perpetrators and humanitarian actors on the ground alike as a lack of action reflects negatively on both parties”.391 That the Security Council is politicized poses several challenges for the development of an effective MRM, and one way for the MRM to become less politicized is for the Security Council to find ways to develop concrete actions to respond to the MRM information on violations on CAAC that have been gathered and presented to it, because otherwise the mechanism risks becoming only a political instrument for the Security Council and the UN.392 In this context it is critical that UN agencies, such as the UNICEF and UNHCR, which are operational in the field continue to centre their work on providing humanitarian aid to children and the civilian populations, and that OHCHR and the peace-keeping missions centre their work on human rights, which they are mandated to do, and their “broader political functions”.393 If they do not keep the focus on their core work, there is a risk that the work of the UN agencies will be undermined and politicized, as they need to balance their core operational goals with their man389 Mc Hugh, Gerard, Strengthening protection of children through accountability, Conflict Dynamics International, May 2009, p. 23 390 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 80 391 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 80 392 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81 393 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81

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dated MRM work, because MRM is not the only work that these UN agencies are tasked to do.394 Furthermore, there is a concern that while much resources have been provided to the UN agencies for their MRM work, at the same time if too many resources are given to their MRM activities that this would be at the exclusion of their other core activities (such as that resources to ensure the survival of a given population are provided to MRM activities instead).395 The information compiled, analysed and verified from the MRM is used at several levels within the UN, and is used at the country level by the country task force as a basis for interacting with the different parties to the conflict.396 That certain standards for the compilation and verification of the information need to be followed guarantees that it is correct, objective and reliable and this provides a solid foundation for the different agencies and actors to work from.397 Information is provided for instance on the types of violations committed, the identity of the victims and the perpetrators when possible. One issue is that the standards of reporting significantly differ between the various MRM country task forces.398 Also there is a lack of clarity as to what the minimum elements of an action plan are comprised of, as well as to why action plans on child recruitment turned into the main child rights violation that the Security Council has concentrated on.399 As Nylund and Hyllested state, within the UN system an accountability mechanism should be established that would help deciding “what is and what is not an action plan”, because an action plan has an influence on decisions regarding the de-listing process of the parties listed in the annexes to the Secretary-General’s annual reports on CAAC.400 394 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81 395 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81 396 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81 397 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 81 398 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 80 399 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 89 400 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 89

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11.5.6.2 .1. The Nature of the Dialogues With the Different Parties, Governmental Forces and Non-State Actors The way the MRM has developed through the various engagements with governments such as in Uganda, as well as with non-state armed actors such as in Sudan, an important development of the MRM mechanism has been that “the limits to what constitutes acceptable dialogue on child rights violations have been stretched, the extent of actions broadened and that the number of actors willing to engage is increasing”.401 Other actors involved in children related armed conflict work are taking the lead in engaging in dialogue on CAAC that goes further than the 1612 mechanism, and by not including all CAAC activities into the 1612 structure this could depoliticize important work in the field.402 The SC resolution 1612 (para. 2 (b)) underlined that the 1612 MRM mechanism “must operate with the participation of and in cooperation with national Governments and relevant United Nations and civil society actors, including at the country level”, and in this context Nylund and Hyllested argue that while all MRM reports and actions need to be coordinated with the concerned government and the governments need to be able to comment on the reports, this does not mean that the governments are supposed to control the information in the reports.403 However neither the governments of Colombia’s nor Myanmar’s have given permission to the MRM country task forces in their respective countries to engage in dialogue with the non-state actors, creating problems for the implementation of the task forces there.404 The issue is that especially strong governments would like to control the information gained through the MRM process, however this has an impact on the credibility of the information compiled.405 In this context to work together with governments is more difficult than with non-state actors, because the neutrality and independence of the process becomes an issue, while at the same time, as 401 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 84 402 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 84-85 403 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 85 404 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 85 405 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 85

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Nylund and Hyllested argue, the governments “are ultimately responsible and must be given the opportunity to take on that responsibility”.406 It is important to note here that resolution 1612 (2005) stresses in its preamble “the primary role of national Governments in providing effective protection and relief to all children affected by armed conflicts”. The MRM country teams report on all the six violations by both governmental and non-state actors, however some governments would want that the MRM only reports on the violations committed by the non-state actors.407 This was not the way the MRM mechanism was set up, as resolution 1612 requested the Secretary-General to begin the application of the MRM “to parties in situations of armed conflict listed in the annexes”, which includes government parties.408 Nylund and Hyllested draw attention to the way the MRM task forces are to work with the non-state actors, as explained in the 1612 resolution, such as that:409 any dialogue established under the framework of the monitoring and reporting mechanism by United Nations entities with non-State armed groups in order to ensure protection for and access to children must be conducted in the context of peace processes where they exist and the cooperation framework between the United Nations and the concerned Government.

They mean that the limitation in this paragraph that implies that non-state actors need to be at the level of being parties to peace processes going on, in the context that many non-state actors that commit child rights violations that are to be reported on are not at that level, also gives rise to the problem that governments are not positive to having the UN entering into dialogue with non-state actors that they do not even recognize as being parties to a peace process.410 The urgency involved in some situations in providing protection to children stand in opposition to this limitation, and the way the UN has handled this situation is to develop

406 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 85 407 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 87 408 S/RES/1612 (2005), paragraph 3, and Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 87 409 S/RES/1612 (2005) paragraph 2 (d) 410 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 87

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various tactics of engagement and pragmatic methods to also be able to deal with these different actors, consistent with a humanitarian objective.411 It needs to be underlined that the main objective with the dialogues, commitments and action plans is to make the perpetrators, the armed forces or nonstate armed groups, accountable for the violations that they have committed and to end these kinds of violations. In this context Nylund and Hyllested explain what an action plan is with regards to the recruitment and use of child soldiers:412 An action plan is a concrete and time-bound commitment to halt all new recruitment of children and to separate and release all children associated with the group or force. It is normally developed jointly by the taskforce and the armed force or group and outlines commitments and the operational steps to ensure the release of all children, including programmatic reintegration activities to assist the children in making the transition from military to civilian life.

The task forces and the UNSC Working Group on CAAC can use the action plans as a concrete tool to monitor progress of the commitments entered into by the different parties, as well as an accountability tool, as they continue:413 In all of the country situations where action plans and agreements have been signed, the verified information on grave child rights violations has been used as a strong evidence base for advocacy efforts with the parties to the confl ict. Information has been shared about the vulnerability of children in armed conflict, about the international legal framework protecting children, the key child protection principles and about the specific violations committed by the armed group and force. Through these engagements, the concept of accountability has been introduced to the perpetrators as well as tangible solutions and responses to address the violations against children’s rights.

411

Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 87-88 412 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 82 413 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 82

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11.5.6.2.2. What Role Should the MRM Play in Pursuing Accountability in International Criminal Tribunals? Pushing the transitional justice agenda may endanger the entire monitoring and reporting mechanism and some of the programmes on behalf of conflict-affected children.414

Nylund and Hyllested mean that the SRSG-CAAC should become more proactive and put forward information about violations of children’s rights to the ICC and other future ad hoc international criminal tribunals, even as it might put people being part of the MRM on the ground at risk, as the SRSG-CAAC would be able to make a more objective evaluation of the crimes committed in contrast to the Security Council where political considerations by its members tend to be the priority.415 That the Security Council is involved has meant that violations of children’s rights in armed conflict are being highlighted in a way they have not been before, however there are limitations to this engagement since the actions by the Security Council are “inherently political”, and as Nylund and Hyllested argue: The fact that the MRM mechanism is grounded in a political mechanism itself presents problems. The Security Council is not an independent judicial authority that holds parties to account with equal weight, nor does it represent the entire UN membership, but particularly the five veto-holding powers. This is well reflected through a quick review of the annual reports of the SG, which list a number of additional situations of concern, that are not included in the annexes of the SG’ reports. This is also the shortcoming of the triggers leading to inclusion in the ‘name and shame list’ which has now been taken one step further in SC resolution 1882 … The engagement of the SC also has an impact on the country situation by allowing for dialogue on the ground, as governments and non-state actors are increasingly keen to open up dialogue due to the international attention surrounding this issue.416

It is difficult to measure whether the UN MRM mechanism has been effective for children as for instance the quality of the information gathered from the mechanism has not been standardized and it has not been possible to use the compiled 414 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 89 415 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 90 416 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 86-87

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information to compare between situations.417 The shortcomings that Nylund and Hyllested highlight are the lack of a systematic approach with regards to how to deal with the different parties to conflicts, and that the action plans are not being developed in a coherent way in the different situations, which could be seen as both a strength and a weakness but the reality is that many of the parties who are willing to sign action plans do not follow through that easily.418 Furthermore, the post-conflict dimension has not been taken into account in the MRM process, which is problematic since after a party has been de-listed, problems persist and reintegration programmes, capacity building of the military on child rights and protection still need to be focused on after the signing of peace agreements and action plans are completed.419 This speaks to what the outcome is expected to be from the MRM, and for how long it is expected to continue, taking into consideration all the six violations that are to be reported on. 11.5.7.

Reporting on Violations Against Children and the United Nations Secretary-General’s Annual Report on Children and Armed Conflict

Here follows examples of the reporting on specific violations taken from the Secretary-General annual report on CAAC in 2010, and this list here is not complete. This was the first year after SC resolution 1882 in 2009 that also made killing and maiming and rape and sexual violence against children triggers for the establishment of country MRM task forces, and that parties who commit these kinds of violations will be listed in the annexes of the SG’s annual report on CAAC. 11.5.7.1.

Reporting on the Six Priority Violations

11.5.7.1.1.

Killing and Maiming of Children

In Afghanistan there was a marked increase in the year of 2009 in the number of children who had been killed or injured mainly by the different armed groups in the context of an intensified insurgency, as over 1,000 cases were documented of children who had been killed or injured because of improvised explosive devices, 417 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 91 418 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 91 419 Nylund, B. V., Hyllested, I. M., Protecting Children Affected by Armed Conflict: Accountability for Monitoring, Reporting, and Response, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 71-92, p. 91

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air strikes, rocket attacks, mines and unexploded ordnances.420 It was also documented that 131 children had been killed in 2009 in aerial bombings carried out by the international military forces. During 2009 in Côte d’Ivoire the killing and maiming of children “increased notably”, which was connected to other grave violations against children including abduction, rape and sexual violence.421 Perpetrators included members of the FDS-FN, but most of the perpetrators were unidentified individuals or groups. Often the victims do not want to report the violations since they are afraid of reprisals or revenge, especially from those associated with the FDS-FN. Also poor administration of justice and the culture of impunity prevents victims from reporting these violations. Many children continued to be killed or maimed in Iraq during 2009, and from that the MRM mechanism was established in Iraq in April 2009 it had documented 142 violent incidents that took place where many children were killed or injured.422 It was confirmed that 223 children had died or been injured in ten of these incidents, which shows that the actual number of children killed or maimed is very high indeed. In one incident in Mosul, outside of a mosque a bomb exploded where about 87 children died or were injured. The main reason as to why so many children died or were injured in Iraq was because the insurgent groups bomb public places where many children can be found, such as market places and outside of mosques.423 Sometimes children just come in the way of the insurgent bombings, such as when the Islamic State of Iraq bombed the Ministry of Justice on 25 October 2009, where a bus passing by was hit outside of the Ministry and where children from a day-care centre were on-board, killing the driver and 24 of the children while six children were injured.424 Only Al-Shabaab in Somalia and LRA in southern Sudan were listed in 2010 specifically for having killed and maimed children. 11.5.7.1.2. Rape and Sexual Violence Against Children The UNSG reported in his 2010 annual report on CAAC that sexual violence against children is “a widespread phenomenon” in Afghanistan, where sexual

420 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 48 421 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 68 422 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 82 423 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 82 424 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 83

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abuse of boys through the practice of bacha bazi is an issue.425 But, however widespread the phenomenon is none of the five armed parties who were listed in the Annex I in the 2010 annual report were listed as having raped or used sexual violence against children. They were listed only as having recruited and used child soldiers. It was reported that the Comprehensive Strategy on Combating Sexual Violence in the DRC was endorsed by the DRC government in April 2009, after assistance from different ministries, NGOs, UN agencies and MONUC.426 Following SC resolution 1882 (2009) a priority action plan for eastern DRC addressing sexual violence, including against children, was developed from this strategy, and subsequently the national strategy against gender-based violence incorporated this strategy. All the six DRC parties in Annex I for 2010 were listed for both the recruitment and use of child soldiers and rape and sexual violence of children. In 2009 an action plan for combating violence against women and children, where legislative, health, social protection, awareness raising and impunity issues were included, in accordance with SC resolutions 1820 (2008), 1882 (2009) and 1888 (2009), was established by the Ministry of Justice of the Government of National Unity in the Sudan.427 The armed group Forces nationals deliberation (FNL) in Burundi was de-listed from the SG’s Annex I in 2010, as it was confirmed that the group no longer recruited or used child soldiers, and had completed its DDR process in June 2009.428 The SG noted in his 2010 annual report that sexual violence against children was an on-going problem, and that four cases of rape were reported to have been committed by FNL during 2009, four by the Burundi National Police, seven by the National Defense Forces, which was a decrease from year 2008 when 42 cases were reported to have been committed by these different parties.429 He reported further that while there was a decrease in the number of rape cases committed by the security and defence forces since July 2009, there was at the same time a rise in the number of rape cases with civilians being the perpetrators. (There was no note if they had been members of the armed groups). In the Central African Republic, CAR, the SG in his annual report of 2010 reported that sexual violence against children was a “grave concern”, and that 425 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 49 426 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 41 427 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 41 428 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 54 429 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 55

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108 such cases had been confirmed by the UN during 2009 in the north-western part of the country.430 While different rebel groups and armed bandits (so-called “couperus de routes”) belonged to the perpetrators, only LRA was listed as having used rape or sexual violence against children in the Annex I of the SG’s annual report, while six other groups were listed only for having recruited and used child soldiers, which also remained a big issue.431 For instance about one-third of the self-defence militias were believed to be children. Although rape and sexual violence have been widespread for years in Colombia in the context of the armed conflict, the SG did not list any of the parties in Annex II of his annual report of 2010 as having committed rape or sexual violence. It said in the report that while there was evidence that child members of illegal armed groups were subjected to grave sexual violence, there was “no systematic information” available on how many children that had been subjected to this crime.432 However it was noted that members of the security forces were responsible for three such cases in 2009, but the security forces were not listed in the Annex II at all. Rape and sexual violence in Darfur was “a major concern”, and the perpetrators included the military, police personnel, armed-group factions and militia men, and other non-uniformed men, however identification of the perpetrators remained a big challenge.433 The UN reported that “there has been no substantiated evidence during the reporting period that such violations are systematically perpetrated upon orders by the leadership and field commanders of the parties to the conflict”.434 Only LRA in CAR, the six parties in DRC: Forces armées de la Rèpublique du Congo (FARDC) and fast-track integrated units from CNDP (Congrès national pour la defense du people), Forces Démocratiques de liberation du Rwanda (FDLR), Forces de résistance patriotique en Ituri (FRPI), Front nationaliste et

430 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 59 431 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 57 and 59, and Annex I; the groups listed were Armée populaire pour la restauration de la République et de la démocratie (APRD), Convention des patriots pour la justice et la paix (CPJP), Union des forces démocratiques pour le rassemblement (UFDR), Forces démocratiques populaires de Centrafrique (FDPC), Lord’s Resistance Army (LRA), Mouvement des libérateurs centrafricains pour la justice (MLCJ), and Self-defence militias supported by the Government of the Central African Republic. 432 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 131 433 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 124 434 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 124

The Work of the United Nations on Children and Armed Conflict

intégrationnaliste (FNI), LRA in DRC, and Mai-Mai in North and South Kivu, including Patriotes résistants congolais (PARECO), and LRA in southern Sudan were listed in 2010 specifically to have committed rape and other forms of sexual violence against children. 11.5.7.1.3. Attacks on Schools and Hospitals In 2009 the country task force for the Philippines verified ten incidents of attacks against schools and hospitals where many children were injured, as a consequence of clashes between the government forces and non-state armed groups.435 The Abu Sayyaf reportedly abducted several schoolteachers in the provinces of Zamboanga and Sulu, which interrupted the schooling of the children in these areas and also created a lot of fear in the communities. The Thai Ministry of Education reported that in the southern provinces of Thailand in 2008 six schools were burned, 14 teachers and education personnel killed or injured, and 31 students were killed or injured, and in 2009 nine schools were burned, ten teachers and education personnel were killed or injured, and 32 students were killed or injured.436 In Afghanistan there was an increase in 2009 in the number of schools and school materiel burned, schools forced to close, the use of school facilities by armed groups, schools damaged from attacks, fighting and explosions from improvised explosive devices in the vicinity of school buildings.437 In 2008 there had been 348 such attacks against schools recorded while for the year 2009 up to November it was reported that 613 such “incidents” had taken place. These kinds of attacks and incidents are affecting almost the whole country, also in those areas that before were thought safe. In places such as Helmand, 70 per cent of the schools had to close during the year, and in Zabul over 80 per cent of the schools had to close. The different armed groups that oppose the Afghan government are mainly responsible for these attacks, but also conservative people in certain communities who are against having girls educated are behind some of the attacks.438 In addition many students, teachers and educational personnel have been killed and injured in such attacks all over the country, with 23 students reported killed

435 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 143 436 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 146 437 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 50 438 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 50

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and 342 injured during 2009, and 24 teachers or education personnel were registered to have been killed and 41 were injured during 2009.439 In 2009 the school year had to be cancelled by the Yemen Ministry of Education in the areas affected by conflict in Yemen, especially in the Sa’ada and Harf Sufyan areas, since most schools had to close as a result of the armed clashes between the government forces/pro-government militias and the Al-Houthi militia.440 It was reported that 17 schools had been destroyed and that 16 schools were being used as military bases by both sides, and as a result all parties saw these bases as “legitimate military targets”. In Somalia over 60 schools in Mogadishu had been closed, and armed forces occupied at least ten schools.441 The transitional federal government forces and anti-government armed groups used school grounds for fighting and many students were as a result both killed and injured. Students have died, been injured, and both students and teachers had been threatened by soldiers. 11.5.7.1.4. Denial of Access to Humanitarian Assistance In Afghanistan children numbering in the hundreds of thousands were not able to access basic health care in 2009 because of insurgency attacks against health workers and facilities.442 Moreover, 115 cases of different attacks against health workers or facilities were recorded in 2009, while in 2008 31 such cases were reported and they included the abduction, killing and assault of medical staff, personal threats from armed groups, burning, looting and forced closure as well as the use of explosives in and around health facilities by armed groups. The violation that was most reported was the abduction of health workers by armed groups, such as vaccinators and support staff.443 Afghan and international military forces have carried out search operations in health facilities and have occupied such facilities. The aid community has also been subjected to many attacks, and incidents, and threats to personnel by the different armed groups which leads to that their humanitarian work and programmes cannot be carried out or have to be severely limited.444 439 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 50 440 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 163 441 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 116 442 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 51 443 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 51 444 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 52

The Work of the United Nations on Children and Armed Conflict

In Colombia as a consequence of FARC’s announcement in August 2009 that all projects in the Nariño department carried out within the context of the Presidential Directive No. 001 were legitimate military targets, humanitarian assistance to the population within this area including children was in danger of being affected.445 The Presidential Directive No. 001 was issued with the aim to improve in the strategic zones the coordination between military and social activities all over Colombia. About 250,000 people were internally displaced from the conflict-affected areas Sa’ada, Amran, Hajja and Al-Jawf in Yemen in 2009 because of armed clashed between Al-Houthi groups and the Yemeni government.446 It was estimated that about 60,000 children were “trapped in cross-fire areas between AlHouthi rebels and the government forces/pro-government militias”, and the provision of humanitarian assistance to the IDPs was severely limited.447 For Yemen it was documented that 189 children had been killed and that 155 children had been injured, and in 71 per cent of these cases the children were killed or injured because of direct shelling against civilian targets and all groups engaged in this behaviour.448 It was found that 29 per cent of these children died or were injured because it was not possible to deliver humanitarian assistance including food and health care where these children had been located. For instance in Sa’ada about 70 per cent of all the health facilities had been destroyed and a few were used by the military.449 It was also documented that families had reported as missing 59 children, they had all disappeared at “the very beginning of the conflict”, and their parents had no knowledge about their whereabouts. 11.5.7.1.5. Recruitment and Use of Child Soldiers Several Afghani armed groups and the Afghan police recruit and use children as child soldiers and were listed in Annex I of the SG 2010 Annual Report on children and armed conflict, and they were the Afghan National Police, the Haqqani network, Hezb-i-Islami, Jamat Sunat al-Dawa Salafia, the Taliban forces and the Tora Bora Front.450 The UN documented that children aged 13 to 14 years had 445 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 134 446 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 160 447 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 165 448 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 162 449 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 164 450 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, Annex I

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been used as suicide bombers or for planting explosives.451 Some of the children detained on national security charges “had been lured into carrying explosives or trained in conducting suicide-type attacks” against Afghan governmental officials, Afghan governmental forces or international forces.452 Further, two Afghan children interviewed had gone through military training in Pakistan after they had been abducted from Afghanistan and brought to Pakistan, and it was verified that many children from Pakistan are in Afghanistan to be used to carry out different activities related to the military. The Afghan National Directorate of Security as well as the international military forces had detained about 110 children as of April 2010 on charges relating to national security.453 It was very difficult for the UN to gain access to the detention facilities where children are being held, and therefore the information on the exact number of children detained, who they are and the conditions they are being held under is incomplete. However it has been documented that the Afghan National Police and the National Directorate of Security have employed harsh interrogation techniques, forced confession of guilt, the use of electric shocks and beating of the children detained.454 The LRA was listed as a party that recruits and uses child soldiers and kills and maims children in the Central African Republic, the DRC, and in addition to these two violations the LRA was listed as a party in the southern Sudan (all Annex I) also for having committed rape and other sexual violence against children, while the group was listed as a party in Uganda (Annex II) without any designation to any violations because it originates from Uganda while not operating there at this time.455 Several insurgents groups in Iraq kept on recruiting and using children in 2009 for acts of terror, such as suicide bombers, which includes the use of girls for such attacks.456 The different groups duped, forced or lured the children with financial benefits so that they would join them. While the UNSG in his annual report on CAAC reported that “several insurgent groups reportedly have children in their ranks”, he only listed Al Qaeda in Iraq in his Annex I.

451 452 453 454 455 456

Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 47 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 47 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 53 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 53 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, Annex I and Annex II Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 81

The Work of the United Nations on Children and Armed Conflict

11.5.7.1.6. Abduction of Children In Yemen while it was not possible to achieve a full estimate of how many children that had been abducted into armed groups or killed or injured in 2009, it was estimated that about 50 per cent of all the fighters of the pro-government militia, Al-Jaysh Al-Sha’bi (Popular Army), and the Al-Houthi groups were children under the age of 18 years.457 So far it had been possible to document that 402 children had been recruited by Al-Houthi and that the Popular Army had recruited 282 children, and it was confirmed that these groups had abducted 59 of these children to recruit and use as child soldiers. However the actual number might be higher. Furthermore over 1,000 children, to whom the UN has no access, are held in detention in prisons, as “either captured from opposing forces during the conflict or suspected of being fighters or pro-Houthis”.458 Before the earthquake in January 2010, at the end of 2009 the UN Stabilization Mission in Haiti, MINUSTAH, together with Haiti’s national police managed to bring down several kidnapping rings which led to that the number of children being kidnapped went down between 2008 (89 such cases) and 2009 (21 cases reported of which 15 were girls and six boys).459 During 2009 the security situation was getting better, and there had been some arrests of certain individuals and gang leaders who had been part of abducting children, and the Haitian National Police had made progress towards dealing with the abduction of children. It is especially in and around schools and when children walk to school or leave school that they have been the most vulnerable to being abducted.460 Rape and sexual violence against girls who have been abducted has long been very common. The earthquake of January 2010 has only exacerbated the existing insecurity for the children, and many children were as a result of the earthquake orphaned, lost and became separated from their parents, and this in the context of continuous “abductions, trafficking, sexual exploitation and association with criminal elements”.461 Many protection efforts are needed for a long time to protect children from being abducted and trafficked for instance across the border to the Dominican Republic.

457 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 161 458 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 166 459 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 76; Of the population in Haiti, 50% are 18 years or younger and about 40% are 14 years or younger, para. 75. 460 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 76 461 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 75

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That many children are detained and imprisoned in many countries is a problem that for instance the SGSR-CAAC is trying to address, and in this context as an example in the 2010 annual report it was reported that the Iraqi authorities had arrested or convicted 110 children for either alleged involvement or proved involvement in acts of terrorism, of which 25 (held in a Ninewa juvenile rehabilitation centre and mainly between the ages of 15 to 18 years) had been arrested on charges of having taken part in acts of terrorism and four of them had received convictions.462 The Iraqi security forces were said to have arrested and detained 62 male adolescents of these 110 “for alleged terrorism under the antiterrorist legislation”.463 They were being held in a Baghdad juvenile detention centre, and it was not possible to locate the other 23 children of the 110. From Tikrit and Basra there were reports that many children had been detained, but how many they were had not been established. 11.5.7. 2.

The Criteria for Listing and De-Listing Parties to Armed Conflict in the Annexes of the Secretary-General’s Annual Reports on Children and Armed Conflict

Pursuant to the request by the Security Council in SC resolution 1882 (2009) paragraph 19(d) to give information on the listing and de-listing criteria and procedures of parties to armed conflict to his annexes, the Secretary-General in his annual report on CAAC from 13 April 2010 first stipulated that he was “guided by paragraph 3 in resolution 1882” which requests the Secretary-General to list parties that have engaged in “patterns of killing and maiming of children and/or rape and other sexual violence against children” that are breaches of international law.464 As a consequence criteria for the listing and de-listing of such parties include the threshold of “a pattern”, and not a single event, and that the violations need to be “systematic”, and need to have been committed “in the same context” and be “linked” together.465 More specifically to determine the violations of killing and maiming the following should be included: mutilation, torture resulting in serious injury or death, and killing in contravention of applicable international law; and for rape and other sexual violence: rape, sexual slavery and/or any other

462 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 84 463 Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 84 464 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Conflict, A/64/742-S/2010/181, 13 April 2010, para. 172, p. 41-42, and S/ RES/1882 (2009), paragraphs 3 and 19 (d) 465 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 175, p. 42

The Work of the United Nations on Children and Armed Conflict

form of sexual violence.466 With regards to the recruitment and the use of children as child soldiers the Secretary-General made reference to past practice and applicable international law. With regards to de-listing a party, the condition is that the United Nations can verify “for a period of at least one reporting cycle” that a party has ended the practice of committing all the grave violations the party was listed for.467 The de-listing process requires that the said party must “enter into dialogue with the United Nations to prepare and implement a concrete, time-bound action plan to cease and prevent grave violations committed against children”, and this action plan must be comprised of:468 (a) (b)

(c) (d)

(e) (f) (g)

A halt to violations and/or the pattern of violations concerned; Official command orders issued through the chain of command of the armed force or group specifying a commitment to halt violations and to take disciplinary measures against perpetrators; An agreed means of cooperation between the party concerned and the United Nations to address grave violations committed against children; Access to territory under the control of the party and to bases, camps, training facilities, recruitment centres or other relevant installations, for on-going monitoring and verification of compliance. The framework of access will be mutually agreed upon by the United Nations and the party; Verifiable information regarding measures taken to ensure the accountability of perpetrators; Implementation of an agreed prevention strategy by the party to address violations; Designation of a high-level focal point in the military hierarchy of the group responsible for the fulfi llment of action plan criteria.

If the Secretary-General continues to have concerns about on-going violations by the de-listed party, the monitoring and reporting will continue until such concerns are proven uncalled for, and during a period of one reporting cycle or more from that a party has been de-listed the UN needs to be given “unhindered access”.469

466 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 176, p. 42 467 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 178, p. 42 468 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 179, p. 43 469 General Assembly/Security Council, Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, para. 180, p. 43

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11.5.7.3.

The Country Taskforces on the Monitoring and Reporting Mechanism

In the SG’s annual report of 2010, there were 14 situations listed, ten in Annex I and four in Annex II, and as noted the 16 persistent perpetrators were separately listed as well. As parties in Côte d’Ivoire had been de-listed from the Annex I in the SG’s annual reports, the MRM task force for Côte d’Ivoire was “re-activated and strengthened” as a consequence of SC resolution 1882 in 2009, because of the continuous violations of rape and sexual violence committed against children.470 However no such party was listed or re-listed in the annexes to the 2010 or the 2011 report. There were 15 situations listed in the 2011 report, and compared to 2010, for Afghanistan the party Latif Mansur Network, for Iraq the Islamic State of Iraq, and for parties in Darfur the Popular Defence Forces and the Sudan Liberation Army (SLA)/Historical Leadership (not party to the Darfur Peace Agreement) were added to the 2011 annexes, while the parties the Karenni National People’s Liberation Front (KNPLF) and the Myanmar National Democratic Alliance Army in Myanmar were de-listed in 2011. The parties listed in Annex I of the SG’s annual report on CAAC of 2011 were from Afghanistan:471 The Afghan National Police, the Haqqani network, the Hezb-i-Islami of Gulbuddin Hekmatyar, the Jamat Sunat al-Dawa Salafia, the Latif Mansur Network, the Taliban forces, and the Tora Bora Front; from the Central African Republic: the Armée populaire pour la restauration de la République et de la démocratie (APRD), the Convention des patriotes pour la justice et la paix (CPJP), the Forces démocratiques populaires de Centrafrique (FDPC), the Lord’s Resistance Army (LRA), the Mouvement des libérateurs centrafricains pour la justice (MLCJ), Self-defence militias supported by the Government of the Central African Republic, and the Union des forces démocratiques pour le rassemblement (UFDR); from Chad: Armée nationale tchadienne, “including newly integrated elements” and the Justice and Equality Movement; for the DRC: Forces armées de la République démocratique du Congo (FARDC), “including recently integrated elements from various armed groups, including Congrès national pour la défense du people (CNDP)”, Forces démocratiques de libération du Rwanda (FDLR), Forces de résistance patriotique en Ituri/Front Populaire pour la Justice au Congo (FRPI/FPJC), Front nationaliste et intégrationaliste (FNI), Lord’s Resistance Army (LRA) and the Mai-Mai groups in North and South Kivu, “including Patriotes résistants congolais (PARECO)”; from Iraq: Al-Qaida in Iraq, “including its armed youth wing, “Birds of Paradise””, and Islamic State of Iraq; from Myanmar: Democratic Karen Buddhist Army (DKBA), Kachin Independence Army (KIA), Karen National Liberation Army (KNLA), Karen 470 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 46 471 Children and Armed Confl ict Report of the Secretary-General, A/65/820-S/2011/250, 23 April, 2011, Annex I, p. 52

The Work of the United Nations on Children and Armed Conflict

National Union-Karen National Liberation Army Peace Council, Karenni Army (KA), Shan State Army-South (SSA-S), Tatmadaw Kyi, “including integrated border guard forces” and United Wa State Army (UWSA); from Nepal: Unified Communist Party of Nepal-Maoist (UCPN-M); from Somalia: Al-Shabaab, including newly merged Hizbul Islam and Transitional Federal Government (TFG); from Sudan: Parties in southern Sudan: Lord’s Resistance Army (LRA), and Sudan People’s Liberation Army (SPLA) and Parties in Darfur: Chadian armed opposition groups, Police forces, “including the Central Reserve Police and Border Intelligence Forces”, Popular Defence Forces, Pro-Government militias, Sudanese Armed Forces; Parties signatories to the Darfur Peace Agreement: (a) Justice and Equality Movement (Peace Wing), (b) Movement of Popular Force for Rights and Democracy, (c) Sudan Liberation Army (SLA)/Mother Wing (Abu Gasim), (d) Sudan Liberation Army (SLA)/Free Will, Sudan Liberation Army (SLA)/Minni Minawi, Sudan Liberation Army (SLA)/Peace Wing, and Parties not signatories to the Darfur Peace Agreement: (a) Justice and Equality Movement (JEM), (b) Sudan Liberation Army (SLA)/Abdul Wahid, Sudan Liberation Army (SLA)/Historical Leadership and Sudan Liberation Army (SLA)/Unity. The parties listed in the Annex II to the 2011 annual report on CAAC of the SG were Parties in Colombia: Ejército de Liberación Nacional (ELN) and the Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo (FARC-EP); from the Philippines: Abu Sayyaf Group (ASG), Moro Islamic Liberation Front (MILF) and New People’s Army (NPA); from Sri Lanka: Tamil Makkal Viduthalai Pulikal (TMVP) (Iniya Barrathi faction); from Uganda: the Lord’s Resistance Army (LRA); and from Yemen: Al-Houthi rebels and Pro-Government tribal militia.472 The parties from Yemen had not been listed in the 2010 report. In the 2011 Annual Report on CAAC of the Secretary-General, only LRA as a party in the Central African Republic, DRC and in southern Sudan, and all the listed armed groups in DRC were also listed for having committed rape and other forms of sexual violence. However only the Haqqani network, Hezb-i-Islami of Gulbuddin Hekmatyar and the Taliban forces in Afghanistan, Al-Qaida in Iraq, the Islamic State of Iraq, Al-Shabaab and the Transitional Federal Government in Somalia, and LRA in CAR and southern Sudan were listed for killing and maiming children. Otherwise all the parties listed in Annex I except for the Islamic State of Iraq and in Annex II except for LRA in Uganda were listed for having recruited and used children. Not one party listed in Annex II was listed for having committed rape or other forms of sexual violence or for having killed or maimed children. In the body of the 2011 annual report with regards to the developments in the respective countries with regards to rape and sexual violence it is reported in a number of cases that rape and sexual violence have been committed during the reporting period. For instance it was reported that in Chad “sexual and gender472 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, Annex II, p. 55

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based violence against women and girls continued to be a widespread phenomenon”, however no parties were listed for this crime.473 It was only for DRC that all the parties listed are also listed for both the recruitment and use of children and for rape and sexual violence (however no killing or maiming). In Somalia it was reported that “[t]he number of documented cases of sexual violence against children substantially increased in 2010 (462 cases) compared to 2009 (128) in south-central Somalia, Somaliland and Puntland”, but no parties were listed.474 For Côte d’Ivoire it was also stated that “one of the many concerns” in the country was rape and sexual violence committed against children but no parties were listed or re-listed.475 One of the reasons to this was that some perpetrators were in civilian clothes and it was hard to determine if they were members of the militia groups. For Colombia it was for instance stated that “[o]f particular concern is the commission by the armed groups of grave forms of sexual violence against recruited girls”, but no parties were listed for this crime.476 One of the main problems for the MRM country task force in Colombia is access to the different non-state armed groups, with the government making clear that any such contact must be preapproved by the government.477 Further as was also noted in the 2011 annual report with regards to Colombia: “There was no contact or dialogue between the United Nations system and armed groups on the preparation and implementation of action plans to address grave violations against children, delaying progress in the implementation of Security Council resolutions 1612 (2005) and 1882 (2009).”478 This is one of the fundamental issues with not being able to list parties that are responsible for different crimes perpetrated against children in Colombia. 11.5.7.3.1. Annex I Situation – The Taskforce on MRM for the Democratic Republic of Congo Already in 2001 in its resolution 1355 did the Security Council introduce the need for systematic monitoring and reporting, which it did here for the Democratic Republic of Congo (DRC) when the Council acting under Chapter VII of the UN 473 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 77, p. 18 474 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 135, p. 31 475 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 81, p. 19 476 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 160, p. 37 477 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 160, p. 32 478 Report of the Secretary-General, Children S/2011/250, 23 April, 2011, para. 32, p. 8

and Armed Confl ict, A/65/820and Armed Confl ict, A/65/820and Armed Confl ict, A/65/820and Armed Confl ict, A/65/820and Armed Confl ict, A/65/820and Armed Confl ict, A/65/820-

The Work of the United Nations on Children and Armed Conflict

Charter having determined that the situation in the DRC posed a threat to international peace and security in the region called upon the Secretary-General:479 to ensure sufficient deployment of child protection advisers to ensure consistent and systematic monitoring and reporting on the conduct of the parties to the conflict as concerns their child protection obligations under humanitarian and human rights law and the commitments they have made to the Special Representative of the Secretary-General for Children and Armed Conflict.

A formal MRM Task Force for DRC was established in 2006 and it is co-chaired by the UNICEF’s Country Representative and the Deputy Special Representative to the Secretary-General (DSRSG) for DRC.480 The members of the Task Force include MONUC now MONUSCO, UNICEF, UNHCR, ILO, and Save the Children UK and CARE. In early 2006 the DRC Task Force sent its first report to the Office of the Special Representative to the Secretary-General on Children and Armed Conflict.481 Based on this report the UN Secretary General presented his first country report on the situation for children and armed conflict in DRC in June 2006 in accordance with SC resolution 1612 (2005), and the SC working group issued its first conclusions on the situation in DRC in September 2006.482 This was the first country report on CAAC in accordance with resolution 1612 that the UNSG presented, and it was the first set of conclusions that the Working Group issued which was a situation in Annex I. Subsequently the UNSG has presented a report on the situation for children and armed conflict in DRC in June 2007, November 2008 and July 2010, and the SC Working Group has adopted conclusions as a response to these reports in October 2007, July 2009 and March 2010.483 The report from July 2010 was presented pursuant to both SC resolution 1612 and the new resolution 1882 (2009) that expanded the triggers. It is the DRC country task force on monitoring and reporting that in accordance with SC resolution

479 Security Council Resolution 1355, S/RES/1355 (2001), para. 35 480 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 3 481 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 3 482 Children and Armed Confl ict, Report of the Secretary-General, S/2006/389, 13 June 2006, and Security Council S/2006/724, 11 September 2006 483 Children and Armed Confl ict, Reports of the Secretary-General, S/2006/389, 13 June 2006, S/2007/391, 28 June 2007, S/2008/693, 10 November 2008, S2010/369, 9 July 2010; and Security Council Working group Conclusions on the Democratic Republic of Congo, S/2006/724, 11 September 2006, S/AC.51/2007/17, 25 October 2007, S/ AC.51/2009/3, 13 July 2009 and S/AC.51/2011, 8 March 2011

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1612 has gathered, verified and compiled the information covered in all these country reports. Save the Children, jointly with UNICEF and other local NGOs, collected and compiled information that was passed over through UNICEF to the UN.484 At first only two international NGOs were formal members of the DRC Task Force, and the Task Force took the initiative to find ways to work together with local NGOs.485 In this context the priority activities for the Task Force have been training and capacity building for other NGOs. One example of this was that in September 2007 a UNICEF staff member who was seconded to MONUC as a 1612 Reports Officer provided training on monitoring and reporting to about 200 child protection and human rights personnel in Bunia, Beni, Goma, Bukavu and Uvira.486 While the cooperation for instance between MONUC’s CPAs and the national and international NGOs has been working well, most Task Force members think that the participation of the NGOs in general has been “timid”.487 There are several factors for this the Watchlist reports, and UNICEF and MONUC have had difficulties finding NGOs to work with in the MRM process. Such factors include the differences between the NGOs working in Kinshasa from those working in the Kivus. I asked a former child protection officer, who worked in Goma, North Kivu, DRC, for an international NGO between 2006–2007, and who had been participating in the 1612 MRM mechanism, what he thought about the MRM mechanism, whether it was useful, and what it did accomplish under his tenure in DRC in his view. He explained:488 The Task Force for DRC is useful because in DRC the abuses of children’s rights are very common by armed state and non-state actors. It is a reminder to the abusers that they cannot get away by abusing children in DR Congo or committing crimes against humanity with impunity. The international community will punish them by collecting evidence using the Task Force. The Task Force is the presence of a 484 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, January 26, 2009 485 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 4 486 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 4 487 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, the Democratic Republic of Congo, January 2008, p. 4 488 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6, 2009

The Work of the United Nations on Children and Armed Conflict

watchdog for the UN Security Council so its presence limits the abuses and offers confidence and trust and protection to those who report. It is a deterrence measure and therefore useful. The Task Force has enabled some children rights violators to be paraded at the Hague without which it would not have happened.

Some of the limitations of the DRC Task Force had been that its members were only international, such as MONUC, UNICEF, ILO, UNHCR and the two NGOs, Save the Children and Care. The Task Force had initiated contacts with local NGOs to expand the Task Force, however the participation of local NGOs was limited. Training for the local NGOs was and continued to be a priority for the Task Force in this context. The issue with the members of the Task Force all being from international organizations was explained as:489 The members are all international organizations that already enjoy the international status. The problem is with the local agencies to be publicly seen as collaborators with the foreign agencies, also they do not have the logistical and expertise capacity to report on 1612 independently. In fact, international agencies use them to give evidence since they are closer to the community and the children who may have been victims. The locals fear the possible revenge or collateral damage from the rebels if they are not guaranteed any sort of protection like the international agencies have. For instance how do you accuse your own government and expect to get away with it?

He meant that the Task Force should be expanded to include local NGOs, but that they had to be provided with adequate training. Another issue was that there was no clarity on how the DRC Task Force operated as many people within the UN and the NGO community at the time did not even know about its existence.490 Another weakness was that the Task Force was based in the capital Kinshasa, while the main human rights violations took place in the eastern part of the country, in North and South Kivu. Another issue was that some NGOs who are based in Kinshasa have no field presence in North or South Kivu, while some NGOs who are based in the East have no presence in Kinshasa. The former child protection officer meant that:491 This forms the weakness of the Task Force, it is not present where they are supposed to be in the East. That is why it is a toothless dog with a fading barking sound far

489 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6, 2009 490 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6, 2009 491 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6, 2009

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away. To have impact and be more effective the Task Force has to be in the East where violations are being committed every day.

Subsequently MONUC and UNICEF have set up a number of working groups in the field that are sub-groups to the MRM country task force.492 Another issue has been that all the organizations have been so overworked with so many different pressing priorities, and some people say that the different organizations prioritize other areas than child protection as a result. The former child protection officer said that: MONUC, UNICEF, Save the Children-UK, and others work on children’s issues but they have other thematic areas of priority too. Child protection is just one of their programs and is therefore not really focused on. Child protection also does not enjoy enough funding in DRC.

Since the presidential elections in 2006, many donors stopped the funding for DDR programmes for children, and wanted to focus on issues such as the peace process, good governance and infrastructure instead, which has led to that child protection became of lower priority for the donors. The World Bank and other donors scaled down or stopped funding the programmes. Some even claimed that the child protection programmes had been around too long. Donor fatigue can be part of the reasons. It is correct that the donors have said that they have no intention to increase the funding either.493 The Pooled Fund is the UN funds that agencies have to compete for under the coordination of OCHA, and these funds were to be used for short term programmes.494 There have been two main priorities for the Task Force, security and to uphold the rights of those who have experienced the abuses, however the problem has been that the Task Force was not in the East of the country and therefore it was very difficult to know how they worked or coordinated their activities.495 Again, not many agencies knew that they existed even in Kinshasa. A main challenge has been and continues to be that it is a big security risk to report on the situation for children in DRC, and for instance NGOs such as Save the Children have had to hide behind UNICEF and MONUC to make a case against some of the violators. This is also a reason as to why there is a great need to have the back-

492 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 44 493 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6 2009 494 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6 2009 495 Former Child Protection Officer, Goma, North Kivu, DRC, Email to author, May 6 2009

The Work of the United Nations on Children and Armed Conflict

ing of the government to be committed to the work of the Task Force to protect the children from further abuses. Task forces for other Annex I situations include a MRM task force for Afghanistan which was established in July 2008, and during 2009 this task force was expanded by its hiring of more staff and the opening of four regional MRM sub-task forces in the eastern, central, south-eastern and western regions of the country.496 In March 2009, the UNAMA, the United Nations Assistance Mission in Afghanistan, set up a child protection unit with one child protection adviser and one monitoring and reporting officer.497 In order to be able to cooperate with its MRM regional task forces, UNAMA having eight regional mission offices, appointed in four of these focal points on child protection. In March 2009, a country task force on MRM was established in Iraq as a consequence of that the UNSG listed Al Qaeda in Iraq in the Annex I to his 2009 annual report on children and armed conflict.498 However since there was no “expertise on the ground” this task force was still to begin to operate by April 2010. 11.5.7.3.2. UN MRM Taskforces in Situations in Annex II A MRM task force was set up in Nepal in November 2005, and in Sri Lanka in July 2006, and these were the two first situations listed in Annex II that had MRM task forces set up.499 The first situation that was considered by the Working Group on the basis of Annex II to the annual report on CAAC by the Secretary-General was the situation for children and armed conflict in Nepal.500 However, in the annual report by the Secretary-General for 2007, Nepal was listed in Annex I with the Unified Communist Party of Nepal – Maoist (UCPN-M), where it remained as of April 2011 in Annex I to the annual 2011 report on CAAC of the SecretaryGeneral.501

496 Report of the Secretary-General on children and armed confl ict in Afghanistan, S/2008/695, 10 November 2008, and Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 44 497 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 44 498 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 43 499 For United Nations, Nepal S/2006/1007, para. 2; for Sri Lanka: Report of the Secretary-General – Sri Lanka (1 Nov. 2005-31 October 2006), 20 December 2006 500 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 29 (j) 501 Children and Armed Confl ict, Report of the Secretary-General, A/62/609S/2007/757, 21 December 2007; Report of the Secretary-General, Children and Armed Confl ict, A/65/820-S/2011/250, 23 April, 2011, Annex I

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An informal MRM Working Group was established by the UNICEF in November 2005 for Colombia.502 The members of the Working Group included six UN agencies, ten national and international NGOs and the two state agencies, Procuraduría General de la Nación (the Office of the Inspector General) and the Defensoría del Pueblo (the Office of the Ombudsman). Of interest to note is that in other countries’ MRM working groups the state agency members have many times held back the work of the task force, which the two state agency members in Colombia have not.503 In January 2009, a MRM country task force was formally established in Colombia, following the Colombian government’s decision to accept the establishment of such a task force on 29 December 2008.504 This needs to be seen in the context that both ELN and FARC had been listed in the Annex II to the UNSG’s annual report on CAAC since 2003 which was the first time that parties to situations not on the agenda of the Security Council were listed, and that they are among the persistent perpetrators.505 The Colombian government had been reluctant to have a MRM country task force established, a task force which otherwise should have been established as a response to that the SG had listed the ELN and FARC, plus at the time several paramilitary groups, in his Annex II in 2003 for the recruitment and use of child soldiers, which should have triggered the establishment of such a country task force in accordance with the 1612 Security Council resolution of 2005. While as has been noted with regards to situations in Annex II, the government in question needs to give its voluntary consent to such an establishment regardless of the violations committed, the Colombian government did not think that it was justified to have the situation in Colombia listed, and further it did not want to appear as being a failed or a fragile state like for instance DRC.506 The informal working group organized itself into several thematic subgroups concentrating on different violations.507 All members of the working 502 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 3 503 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 4 504 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/63/785-S/2009/158, p. 30 505 Children and Armed Confl ict, Report of the Secretary-General, A/58/546S/2003/1053, 10 November, 2003, Annex II, and Report of the Secretary-General, Children and Armed Confl ict, A/65/820-S/2011/250, 23 April, 2011, Annex II 506 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 4 507 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5

The Work of the United Nations on Children and Armed Conflict

group led one subgroup each which resulted in that all members have had equal input. Coordination between the different child protection actors in Colombia improved much with the establishment of this informal working group, as well as between the UN agencies and the NGOs.508 As was noted, since the working relationship between the UN agencies and the Colombian NGOs has been very problematic over the years, this improved coordination between the different relevant actors was an achievement in itself.509 However, doubts still lingered as to how strong this new level of positive cooperation was, and whether it would continue to grow stronger, as in the past this had not been the case. One issue of concern on the part of the NGOs has been the lack of public advocacy work conducted by the UN agencies in Colombia, which these agencies have not been willing or able to engage in, and this was especially an issue when reports to the UN Headquarters in New York have been prepared within the working group.510 Many have commented that advocacy at the national level of children’s rights should be an activity that the working group members should take part in.511 However, for the different UN agencies their mandates are of great concern. The Office of the High Commissioner for Human Rights (OHCHR) is the only UN agency that has a clear mandate to monitor violations of human rights.512 The UN agencies are concerned that they act within their mandates and thus be able to remain in the country and continue their work. In terms of the preparation and analysis of the information to be sent to New York, many NGOs have said that they only have “minimal input” into that process.513 One reason for this has been that the Headquarters in New York has given directives to the co-chairs of the Working Group in order to minimize the risk of politicizing the MRM process, and be able to hold the information confidential.

508 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 509 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 4-5 510 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 511 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 512 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 513 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5

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As an informal working group, the majority of the NGOs needed more technical and financial support to be able to participate more effectively.514 Neither UNICEF nor any donor country had given the NGOs more assistance as long as it was an informal working group. While all the members of the working group were and still are for doing more advocacy work regarding the promotion and protection of human rights, the context within which they are operating in Colombia is very dangerous for human rights work. As Watchlist has noted the “fear and insecurity” this environment gives rise to also has an impact on how the NGOs and the UN agencies are cooperating with each other.515 11.5.7.3.3. The UN MRM in Situations Not Listed in the Annexes There is an informal Israel/occupied Palestinian territory working group on grave violations against children, and UNICEF is leading the working group, and its members apart from UNICEF encompass OCHA, OHCHR, UNESCO, UNRWA, WHO, Al Mezan Centre for Human Rights, Save the Children, DCIPalestine, B’Tselem, Palestinian Centre for Human Rights, and War Child Holland.516 The working group monitors the following violations of children’s rights: “killing and injuries, arrest and detention, ill-treatment and torture, recruitment and use of children by armed forces and groups, attacks on schools and hospitals, displacement, and denial of humanitarian access including access to health and education”.517 At the level of the UN Security Council the working group has not had an official status and has in that regard been unofficially reporting to the Council, including providing a horizontal note. It is in this context the Office of the SRSGCAAC has stated that she would advocate together with UNICEF and its civil society partners to strengthen the monitoring and reporting task force for the OPT and Israel.518 As the situation in Israel and the occupied Palestinian territory is on the agenda of the Security Council, the Secretary-General includes the situation for these children in the body of his annual reports on children and armed conflict. 514 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 515 Watchlist, Getting It Done and Doing It Right, A Global Study on the United Nations-Led Monitoring and Reporting Mechanism on Children and Armed Confl ict, Country Report, Colombia, January 2008, p. 5 516 UNICEF, CAAC Bulleting, Children Affected by Armed Conflict, Israel & the occupied Palestinian territory (oPt), 2010 Annual Review, p. 1 517 Not an exclusive list, UNICEF, CAAC Bulleting, Children Affected by Armed Conflict, Israel & the occupied Palestinian territory (oPt), 2010 Annual Review, p. 1 518 OSPSG-CAAC, Report from the Middle East, Lebanon and the Occupied Palestinian Territory, July 1, 2007

The Work of the United Nations on Children and Armed Conflict

While at first the information provided regarding the situation for the Palestinian and Israeli children was very limited, the information in the annual reports has become more substantial. Furthermore, the Security Council Working Group on CAAC monitors the situation for the Israeli and Palestinian children. At the ninth meeting of the Working Group in July 2007, the situation of the children in the OPT was presented in the Secretary-General’s “horizontal note”.519 It read: “In the occupied Palestinian territories, the number of children killed or injured as a result of the conflict had increased in the most recent period, and the restrictions on movement had adversely affected access to education”.520At the subsequent 14th meeting of the Working Group in May 2008, another “horizontal note” of the Secretary-General was presented and once more included a particular emphasis on the situation in OPT, and this briefing also included Israel: “In the occupied Palestinian territories and Israel, the number of children killed or injured had increased in the first quarter of 2008 owing to an upsurge in violence between the parties to the conflict. In addition, schools were being affected more often by the conflict.”521 In his annual report on children and armed conflict in 2010, the SecretaryGeneral reported after Israeli “Operation Cast Lead” (which lasted from21 December 2008 to 18 January 2009) in Gaza that the situation for the Palestinian children was very hard. The Secretary-General reported that during “Operation Cast Lead” it was confirmed that in Gaza 350 children had been killed and 1,815 injured by Israeli forces, and that 12 Palestinian children who carried weapons and acted as combatants had been killed.522 The Palestinian armed group Ezz al-Din al-Qassam Brigades was reported to have recruited a 16 year old boy, however the actual number of children being trained and/or used by different Palestinian armed groups was higher. Furthermore it was confirmed that Israeli soldiers in three cases during “Operation Cast Lead” had used Palestinian children as human shields. After January 2009 when the Operation Cast Lead came to an end, it was confirmed that during 2009 another 24 Palestinian children had died and 271 were injured because of unexploded ordnance in the Gaza buffer zone as well as because of settler-related violence in the West Bank and East

519

Annual Report on the activities of the Security Council Working Group on children and armed conflict, established pursuant to resolution 1612 (2005) (1 July 2007 to 30 June 2008) 520 Annual Report on the activities of the Security Council Working Group on children and armed conflict, established pursuant to resolution 1612 (2005) (1 July 2007 to 30 June 2008), para. 11 (a) 521 Report on the activities of the Security Council Working Group on children and armed conflict, established pursuant to resolution 1612 (2005) (1 July 2007 to 30 June 2008), para. 42 (c) 522 Children and armed conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April, 2010, para. 100, p. 24

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Jerusalem.523 During 2009, in the West Bank one Israeli child had been killed and three children injured due to violence. Because of Palestinian inter-factional fighting during 2009, two children reportedly died and six were injured, and the two children killed were associated with the Jund Ansar Allah group and died when Hamas-affi liated security forces and the Jund Ansar Allah group clashed in Rafah city in Gaza.524 Palestinian armed groups launched rocket attacks from the Gaza Strip into Israel, however no Israeli child was killed, while many Israeli children living in these areas were traumatized by these attacks. Israel’s security agency, Shabak, has continued a practice of recruiting Palestinian children to become collaborators either inside prisons or after they are released from prison, and in 2009 five cases of Palestinian children while they were being interrogated by Israeli authorities were asked to become informers for the Israeli intelligence.525 Another practice used by the IDF forces has been to force children to enter and clear areas in potential zones of conflict. When “Operation Cast Lead” began, Israeli military authorities arrested and detained many Palestinian children, and while the number of such cases significantly declined, 305 children were detained in December 2009, this practice continues to be both “systematic and widespread”.526 One issue is that some children detained are very young, for instance in December 2009, 42 Palestinian children aged 12–15 years were detained by Israel, while 30 children in this age group were detained in December 2008. Detention of Palestinian children under the age of 18 years by military forces is a persistent problem which also the SRSG-CAAC specifically brought up in her report from her visit to the area in 2007, and as of December 2010 it was reported that 213 Palestinian children from 12 to 17 years of age were detained by the Israeli military of which one was a girl.527 In December 2009 there were 305 Palestinian children in military detention.

523 Children and armed conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April, 2010, para. 102, p. 25 524 Children and armed confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April, 2010, para. 102, p. 25 525 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/62/609-S/2007/757, 21 December 2007, para. 83, and Children and armed confl ict, Report of the Secretary-General, A/64/742S/2010/181, 13 April, 2010, para. 104 526 Children and armed conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April, 2010, para. 105 527 UNICEF, CAAC Bulleting, Children Affected by Armed Conflict, Israel & the occupied Palestinian territory (oPt), 2010 Annual Review, p. 4

The Work of the United Nations on Children and Armed Conflict

11.5.8.

The Challenges Involved with the UN 1612 MRM Process

One of the main continuous challenges for the 1612 MRM process apart from how to approach situations/countries/parties not on the agenda of the Security Council is how to address non-state actors. The Secretary-General recommended in his annual report from April 2010 that:528 Concerned Member States should allow contact between the United Nations and non-State actors to ensure the broad and effective protection of children, including for the purposes of preparing action plans to halt recruitment and use of children, killing and maiming of children, and/or commission of rape and other sexual violence against children, as well as undertaking specific commitments and measures to address all other grave violations against children. The Security Council should encourage this. Such contact is not to prejudice the political and legal status of those non-State actors.

The issue of how to deal with non-state actors is problematic for the SC Working Group on CAAC where for instance Turkey (Security Council member 2009– 2010) rather wanted that any dialogue with non-state actors be conducted by the UN country teams.529 This needs to be seen in the context that within the UN how to address and inter-act with non-state actors is an issue in general and affects also for instance the thematic area of protection of civilians. Further China and Russia have underlined that governments have a central role to play and should participate in all issues concerning children in armed conflict within their borders.530 Also, Turkey found it problematic to include a reference to the Paris Principles in the conclusions of the Working Group, because the Principles were not a document that had been formally negotiated and not a formal UN document.531 The Philippines, which was a member of the Security Council at the time of the negotiations of the resolution 1612, argued that if any measures should be taken against parties of a country, then “close negotiations” with the concerned government should be implemented.532 This has been echoed later by for instance Colombia.

528 Children and armed conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April, 2010, para. 184, p. 44 529 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 23 530 Security Council Report, Update Report No. 2, Children and armed confl ict, 14 July, 2008, p. 3 of 3 531 Security Council Report, Cross-Cutting Report, 2010 No. 1, 2 June 2010, p. 23 532 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 7 of 9

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To gain information on whether children are being recruited or used as child soldiers or on other violations of children’s rights is difficult with regards to non-state groups and militias carrying out their activities in areas that are many times remote, isolated and not accessible.533 For instance in Iraq and Afghanistan the insurgent and rebel groups operating there have posed a great challenge because there has been much secrecy surrounding their activities and they are found in areas not easily accessible to others.534 Security concerns is another reason with regards to non-state actors, and in DRC a key impediment has been difficulties with security for the United Nations in being able to assess how the different groups comply with the commitments that they have made regarding the release of children from their groups.535 Another issue in DRC, as noted in the 2011 annual report on CAAC, is the lack of will by the government itself to work with the UN for the governmental forces, the Forces armées de la République démocratique du Congo (FARDC), to develop an action plan to put an end to child recruitment and use.536 This reflects that the government’s commitment to getting the non-state actors to put an end to the recruitment and use of children as well as rape and sexual violence is not strong. In other cases political considerations such as that a government does not want the United Nations to enter into dialogue with a non-state actor, because of fear of that leading to the inferring of a legal status on the group, has prevented United Nations country teams from entering into dialogue with non-state actors. There have been instances when a non-state actor has specifically sought contact with the United Nations with the aim of establishing dialogue where the government in question has prevented this dialogue from taking place.537 For instance the government of Myanmar has been very reluctant to let the UN gain access to non-state actors. As was noted in the SG’s 2011 annual report on CAAC, with regards to the non-state armed groups that had been listed in Annex I, of which three groups belong to the persistent perpetrators, there had not been any progress with regards to any dialogue with them as the government in 2010 533

United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/61/529/S/2006/826, 26 October, 2006, para. 5 534 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/61/529/S/2006/826, 26 October, 2006, para. 5: In Iraq many children have been victims of abduction for ransom by the different armed groups and militias, see United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695S/2005/72, 9 February, 2005, para. 33 535 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/59/695-S/2005/72, 9 February, 2005, p. 6 536 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, para. 27, p. 7 537 Watchlist, The Security Council and children and armed conflict: Next steps towards ending violations against children, January 2008, p. 9

The Work of the United Nations on Children and Armed Conflict

“again refused access to these groups”.538 The Myanmar groups Karen National Liberation Army (KNLA), Karenni Army (KA) and Tatmadaw Kyi all belong to the persistent perpetrators. In the SG’s 2011 annual report on CAAC it is noted in Annex I that the KNLA and KA have “sought to conclude an action plan with the United Nations in line with Security Council resolutions 1539 (2004) and 1612 (2005), but the United Nations has been prevented from doing so by the Government of Myanmar”.539 This shows how challenging it is for the UN to engage in dialogue with some actors and that in some cases it is the government itself that is the main hindrance. Keeping in mind that it is the government that is responsible for the protection and welfare of all of its children within its territory, governments need to understand that it is an obligation for them to be open to assistance from the United Nations in establishing their priorities in relations to ensuring the protection of all children and their rights if they are unable to do it themselves. Unfortunately there is no enforcement mechanism available in this situation to have the governments take on their legal responsibilities. Major difficulties to the establishment of monitoring and reporting task forces in Chad, Colombia and the Philippines have included “insecurity, restriction or denial of access to certain areas of the country and insufficient resources”, and therefore information on violations of the rights of children has not been possible to gain correctly and/or in a current manner.540 In March 2007 a MRM country task force was set up in the Philippines, and the United Nations Resident Coordinator and UNICEF chair this task force together.541 It has as its members representatives of the UN’s country team, the governmental Commission of Human Rights of the Philippines, local and international NGOs and representatives from civil society. In its first report in 2008 there were some information missing because of documentation problems, lack of access and that the monitoring organizations had set uneven priorities.542 For instance, the Commission on Human Rights and the Department of Social Welfare and Development had given the country task force information in reports on the situation for the children affected by conflict, however the Philippine Armed Forces had not provided any information. In terms of what an organiza538 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, para. 29, p. 7, Annex 1 lists 8 parties in Myanmar. 539 Report of the Secretary-General, Children and Armed Confl ict, A/65/820S/2011/250, 23 April, 2011, Annex I, p. 53 540 United Nations, General Assembly/ Security Council, Children and armed confl ict, Report of the Secretary-General, A/62/609-S/2007/757, 21 December, 2007, p. 150 541 United Nations Security Council, Report of the Secretary-General on children and armed conflict in the Philippines (S/2008/272), 24 April, 2008, p. 1 and para. 2: The report documents the period from 1 July 2005 to 30 November 2007. 542 Its first report was issued in April 2008 (S/2008/272); United Nations Security Council, Report of the Secretary-General on children and armed conflict in the Philippines (S/2008/272), 24 April, 2008, para. 3

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tion prioritizes to monitor, some NGOs had concentrated on documenting only violations committed by the state security forces, but not by the non-state armed groups. Regarding the non-state armed groups, the issues of lack of access and lack of monitors also impeded the effectiveness of reporting on violations committed by them, as well as that not all areas of the country could be included in the MRM. 11.5.9.

The United Nations Monitoring and Reporting Mechanism and Specific Country Situations

11.5.9.1.

Case of the MRM and Sri Lanka

Sri Lanka experienced an armed conflict that went on from 1983 and formally ended in May 2009, and the LTTE was notoriously known for its recruitment and use of child soldiers. For the north-eastern part of the country, the government of Sri Lanka and the LTTE agreed formally to an action plan for war-affected children in June 2003.543 In the action plan the LTTE pledged to end the recruitment of all children, and while at first there was a real decrease in the number of children recruited and an increase of children who were released, the LTTE did not end its practice to recruit and use child soldiers, which was a persistent problem until the end of the conflict in May 2009. However, the LTTE had already in 1998 made commitments to the then SRSG-CAAC Olara Otunnu to end its recruitment of children, and that all children in the group were to be released.544 Then in 2002,the LTTE again made commitments to end its recruitment activities this time to UNICEF, then in January 2003 to UNICEF’s Executive Director, and again in March 2003 as was stipulated in the action plan for the war-affected children.545 A 1612 country task force on monitoring and reporting was established in Sri Lanka in July 2006.546 The UN Resident/Humanitarian Coordinator chairs the task force and the deputy chair is held by the UNICEF representative, and further members have been for instance the United Nations Development Programme (UNDP), UNICEF, UNHCR, ILO, Oxfam Great Britain and the local NGO

543 Security Council Report, Profi le: Children and armed confl ict, 12 July, 2006, p. 3 of 9, and Report of the Secretary-General for Sri Lanka, S/2006/1006, 20 December 2006, para. 55 544 Report of the Secretary-General for Sri Lanka, S/2006/1006, 20 December 2006, para. 11 545 Report of the Secretary-General for Sri Lanka, S/2006/1006, 20 December 2006, para. 11 546 Report of the Secretary-General for Sri Lanka, S/2006/1006, 20 December 2006, para. 11 and 58

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Sarvodaya.547 In addition, two governmental agencies are members, the National Child Protection Authority (NCPA) and the Human Rights Commission (HRC), and this was the only 1612 task force that had governmental agencies as members at the time.548 The Watchlist carried out a study in 2008 in Sri Lanka regarding the Task Force which showed that the NCPA and the HRC were not viewed as “politically neutral” or as “impartial” by the people, and that they did not have the resources and capacity “to document rights violations and provide adequate follow up to the cases which are reported to them”.549 In December 2008 the Tamil Makkal Viduthalai Pulikal (TMVP) signed an action plan and as a result in January 2009 a task force was set up in Batticaloa made up of the government agent, the police department, the Sri Lankan army, the Department of Probation, the National Child Protection Authority and UNICEF which were meeting monthly “to monitor progress and address issues related to the action plan”.550 To assist families whose children had been recruited a child welfare unit was set up by the task force which gave information, orientation and support to these families regarding the release of their children. The establishment of the welfare unit was a positive development, because as a result the population began to trust the authorities more, and more cases of child recruitment were reported which led to that as of December 2009 five children alone were still with the TMVP.551 In 2009 there had not been a clear picture about how many children the LTTE had, and from 2008 to the beginning of 2009 there had been no reliable figures.552 The LTTE could have been the next case for sanctions and in that case it would have been the first case for sanctions in situations not on the agenda of the Security Council.553 The issue was to send a clear message and signal to LTTE by not putting Sri Lanka on the agenda of the Security Council. However within the Security Council Working Group on CAAC you need consensus, and there was

547 Watchlist on children and armed conflict, No safety no escape: Children and the escalating armed confl ict in Sri Lanka, April 2008, p. 42 548 Watchlist on children and armed conflict, No safety no escape: Children and the escalating armed confl ict in Sri Lanka, April 2008, p. 42, and footnote 40, p. 53 549 Watchlist on children and armed conflict, No safety no escape: Children and the escalating armed confl ict in Sri Lanka, April 2008, p. 42, and footnote 40, p. 53 550 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 13 551 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 14 552 Fabien Fieschi, France’s former expert on the SCWG-CAAC, Interview France’s Mission to the UN, New York, May 20, 2009 553 Fabien Fieschi, France’s former expert on the SCWG-CAAC, Interview France’s Mission to the UN, New York, May 20, 2009

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lack of support for sanctions on the LTTE, because as long as Sri Lanka was not on the agenda of the Security Council this was problematic for some members.554 The conflict in Sri Lanka ended in May 2009, and the LTTE recruited children until the very end. Between 1 January and 19 May 2009, 397 cases of child recruitment, of which 147 were girls, had been verified and documented by UNICEF.555 Between 20 May and November 2009, about 34 children were identified and it was also possible to identify 1,345 individuals where there whereabouts were not known, but who had been recruited as children and were over the age of 18 years after the war ended. As of November 2009 the screening process of the LTTE combatants including the children associated with them had identified 560 children termed “surrendee” of which 199 were girls and six had formerly been associated with the TMVP.556 According to the Sri Lankan Emergency Regulation No. 1580/5 of 15 December 2008, a “surrendee” means a “child leaving an armed group that has been identified and registered by the Government of Sri Lanka” and who the UNICEF has verified.557 This Emergency Regulation provided that the child combatants be separated from the adults and then be sent to special child rehabilitation centres. One rehabilitation centre for children was set up in July 2009, the Poonthottam Cooperative Training Centre, where vocational training courses were provided, and in October 2009 another such rehabilitation centre was set up, the Ratmalana Hindu College, where the children were able to restart their formal education.558 Small groups of children were still being identified through the screening process and the process continued. In April 2009 there was an arrest of an adult member of the TMVP in Batticaloa for the recruitment and use of children, however he was not charged and was released on bail after a week, but was subsequently killed after being released.559 No other arrests have been made by the authorities while governmental officials gave commitments to the Special Envoy of the SRSG-CAAC, Major General (ret.) Cammaert, on his visit in December 2009 to Sri Lanka, to “take

554 Fabien Fieschi, France’s former expert on the SCWG-CAAC, Interview France’s Mission to the UN, New York, May 20, 2009 555 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 148 556 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 22 557 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, footnote 4, p. 7 558 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 22 559 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 29

The Work of the United Nations on Children and Armed Conflict

steps to address allegations of recruitment and re-recruitment of children in Ampara district by errant TMVP cadre Iniya Barrathi”.560 The former LTTE cadre known as Pillayan, Sivanesathurai Chandrakanthan, is since 2009 controlling the TMVP which used to be led by Karuna, Vinayagamoorthy Muralitharan.561 It was reported that between December 2008 and November 2009 “21 cases of child recruitment were reported, 78 children were released and only 5 children remain associated with the group”, but that TMVP said that these children were not part of their ranks, and these cases were investigated by the police.562 Further, it was noted that 60 individuals who continued to be linked to the TMVP were identified as having been recruited as children, but after the war being older than 18 years. It should be noted that the Secretary-General in his annual reports on children and armed conflict of 2010 and 2011 continued to list the Tamil Makkal Viduthalai Pulikal, TMVP, (“former element of Karuna faction”), the Iniya Barrathi faction in Annex II.563 In the annexes there is a special note that the TMVP still recruits and uses children. In northern Sri Lanka, in the Killinochchi and Mullaitivu districts during the period of 1 January and 19 May 2009, it was reported that 199 children had been killed and that 146 children had been maimed, however it was believed that more children had been killed or maimed.564 The age groups that were the most affected were the youngest and the oldest children, with the youngest children aged 0–5 years having the highest number killed with 71 children killed and 28 children maimed. The older age groups suffered the most from maiming, with 40 children aged 13–15 years being maimed and 37 children aged 16–18 years also maimed. Ninety-seven per cent of the children were killed or injured in the Mullaitivu district, while 3 per cent of the incidents took place in the Killinochchi district. Artillery fire from the Sri Lankan Armed Forces seemed to have caused most of the causalities, while artillery fire from the LTTE caused some casualties. Children in northern Sri Lanka were still at risk from land mines and unexploded ordnance, even as the removal of unexploded ordinance (UXOs) and de-mining have been on-going. This the Special Envoy has also reported on after his visit to

560 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 29 561 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 147 562 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 147 563 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, and Children and Armed Confl ict, Report of the Secretary-General, A/65/820-S/2011/250, 23 April 2011, Annex II 564 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 150

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Sri Lanka in December 2009, recommending that “more rapid mine and UXO clearance needs to be planned for and funding sources secured as a priority”.565 IDPs have reported that while people were fleeing from the hostilities in the final months of the war, rape and sexual harassment were carried out and former female LTTE cadres, also girls, were targeted in particular.566 The LTTE forcibly cut the hair of some women and girls who tried to flee the areas affected by the war in order to prevent them from fleeing, since they knew that the Sri Lankan army would think that these women and girls were members of the LTTE because they had short hair. To prevent their girls from being forcibly recruited into the LTTE, some families forced their girls to marry their relatives.567 The UN Secretary-General very vaguely reported that while in the IDP camps, women and girls have through promises of favours, money, marriage or threats been exploited which “appeared to be perpetrated by various actors”.568 Here the report does not mention sexual exploitation and cannot verify that this took place, nor are the authors behind the report able to identify the perpetrators. Furthermore, the Special Envoy could not confirm one single case of sexual violence having been committed in either IDP camps or in female surrendee camps, while he urged that the government established protection focal points and support services in all IDP camps and surrendee camps, as well as safeguards to protect women and girls from sexual violence.569 The Sri Lankan Armed Forces used nine schools, which also were used by school children, for the detention of former adult combatants.570 This concerned about 5,753 children who had not been able to go to school full time at these sites because of these activities and had their schooling interrupted, as the Sri Lankan Armed Forces barracks could be found within the school compounds and the Sri Lankan Armed Forces used both classrooms and other facilities at school. The Sri Lankan government made commitments to the Special Envoy Major General (ret.) Cammaert to move the former adult combatants who could be seen walking around the school premises to other places.571 565 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 16 566 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 151 567 Children and Armed Confl ict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 151 568 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 151 569 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 15 570 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 152 571 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 38

The Work of the United Nations on Children and Armed Conflict

During the last phase of the conflict, many people were displaced and it was very difficult for the international community and the national authorities alike to gain access to the areas where the internally displaced population was.572 At the same time, the population and civilians such as staff from the United Nations and humanitarian organizations in the conflict area were not able to leave as the LTTE did not let them. In the north and east of the country about 40 IDP camps had been established as of May 2009, with no freedom of movement for the about 280,000 people that had become internally displaced, and access to this population was restricted because of “national security-related issues”.573 The government did not allow for protection monitoring in these areas. About 40 per cent of the IDPs who fled the hostilities in May 2009 and came to camps were children.574 It was not until the end of October 2009 that all IDPs had been able to be released from the transit centres, or go to rehabilitation centres. On 18 November 2009 the military security clearance for traveling out of the district of Jaff na was lifted, and a pass system was commenced on 1 December 2009 which facilitated humanitarian access and the IDPs’ freedom of movement. NGOs still had limited access to areas of return, and accessing rehabilitations centres was restricted “where internally displaced persons suspected of association with LTTE” were taken.575 The WFP, UNICEF and the IOM alone had been granted access to these centres. Continuous issues have been the situation for separated and unaccompanied children, the children who their parents have reported as missing and the children with disabilities and children with difficult medical conditions, which are all urgent issues that need to be addressed. There is a need to have a better registration system for these children that would facilitate early family tracing and reunification.576 In northern Sri Lanka by November 2009 it had been possible to identify 1,221 children who had been separated from their families, or were unaccompanied or orphaned.577 Of these, 517 of them were able to go back to their families or relatives and 704 of them were moved to residential homes. Furthermore, 162 parents had come forward stating that their children were missing to probation officers, and at the Family Tracing and Reunification Unit

572 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 153 573 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 154 574 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 5 575 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 155 576 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 155 577 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 156

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which was set up in December 2009 in Vavuniya, families still came and asked to have their children traced by April 2010.578 11.5.9.1.1. The Visit of the Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka The Special Envoy of the SRSG-CAAC went to Sri Lanka in December 2009 and visited children’s rehabilitation centres at the Hindu College in Ratmalana (Colombo) and the Poontotham Vocational School in Vavuniya, as well as the Sathurukondan Sarvodaya vocational training centre in Batticaloa, which are all centres for the children who have been formerly associated with LTTE or TMVP.579 He noted that about one-third of the LTTE documented child recruits were girls.580 While still in existence the LTTE made no effort to implement the action plan that the Security Council’s Working Group on CAAC had recommended in 2007 (S/AC.51/2007/9) and 2008 (S/AC.51/2008/11).581 At the time of the Special Envoy’s visit, about 1,380 cases of children who had been recruited when they were under 18 years, of which 33 were still under 18 years, had been identified as having been associated with the LTTE, but it was not known where they were at the time.582 The Special Envoy visited rehabilitation centres where former LTTE child soldiers had been taken, and these children told the Special Envoy that in the last phases of the conflict, in the weeks or days before the conflict ended, the LTTE had forced them to join, of which some had been abducted. About 596 children have been documented by the UNICEF since 2006 to have been associated with TMVP, formerly Karuna.583 In December 2008 an action plan was signed by the government, the TMVP and the United Nations in Sri Lanka, stating that all former child soldiers be released and rehabilitated and that the TMVP would end child recruitment.584 It was as a result of the SCWGCAAC’s recommendations and conclusions in 2007 and 2008 that the TMVP 578 Children and Armed Conflict, Report of the Secretary-General, A/64/742-S/2010/181, 13 April 2010, para. 156 579 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 12 580 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 5 581 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6 582 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6 583 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6 584 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6

The Work of the United Nations on Children and Armed Conflict

agreed to this action plan. At the time of the signing of the action plan the TMVP had 62 child soldiers and by December 2009 all children had been released or their whereabouts had been established, save for two children. Furthermore, the Special Envoy got to know that there were 53 individuals who were not documented and who had been recruited as children and who were now over 18 years of age, and that their parents had not heard from them for months or years.585 In the Ampara district in the Eastern Province there were still in December 2009 allegations of child recruitment and threats of children being recruited by “commander” Iniya Barrathi who was a member of the TMVP breakaway faction under Karuna’s leadership.586 Some former child soldiers who were in rehabilitation centres were afraid to go back to Ampara because they felt it was not safe because they feared re-recruitment and abuse by Barrathi. The Special Envoy brought this issue up with Mr. Karuna, the new Minister of National Integration since March 2009, who knew about this problem and said that he had told Barrathi that if he would continue recruiting children the police would intervene since under-age recruitment is a crime according to the law in Sri Lanka.587 The Minister of Justice and the Secretary Justice made promises to the Special Envoy that they would follow-up on this issue, as Sri Lanka had now adopted a “zero tolerance” policy on child recruitment and the use of child soldiers. 11.5.9.1.2. The Screening of Children Who Might Have Been Associated With the LTTE The Sri Lankan government made public announcements to the IDP population who in mid-2009 was fleeing the Mullitivu area saying that everybody despite age who “have spent even one minute with the LTTE in any way should report themselves”, which led to the situation that many children were encouraged by their parents to report themselves to the authorities.588 Children who had been in the custody of the LTTE just for a few hours were encouraged to report themselves by their parents who were afraid of reprisals. As a result children reported themselves and different Sri Lankan government agents, such as the Criminal Investigation Division, picked up the children right away or at a later date, and came to visit the children. Most of these children were then officially transferred

585 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 6-7 586 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 7 587 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 7 588 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 7

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to a surrendee centre for adults and from there transferred to a child and rehabilitation centre.589 The concerns noted with regards to the screening process of children include that there had been no specific screening guidelines of children developed, neither in December 2009, which the Attorney General had committed to develop by setting up a task force in his Office in meetings in September 2009 with the then UN Special Representative of the Secretary-General for the Human Rights of IDPs, Walter Kaelin.590 In the child rehabilitation camps the screening process used has been “one that fits all”, which did not necessarily take into account the different ages of the children, how long they spent with the LTTE or whether they had been involved in actual fighting. Taking these factors into account is necessary as the different children depending on their age and different experiences have different needs and concerns that are not being addressed and solved by having a process that is the same for everybody. The Emergency Regulation 1580/5 of 15 December 2008 stipulates that the children who have been associated with the LTTE be transferred to the care of the Magistrate.591 In December 2009, it was still very difficult for humanitarian organizations to gain access to IDP camps and adult “surrendee” camps.592 The Special Envoy reported that the child screening process was neither regularized nor transparent and UNICEF and other child protection agencies had only gained limited access to some adult “surrendee” camps to check whether children under the age of 18 years were present. By January 2010 these organizations had still not been able to gain access to some camps. The Public Security Ordinance established the Emergency Regulation 1580/5 of 15 December 2008, which gives the Commissioner General of Rehabilitation “the responsibility to establish centres to care for children who have been subjected to forced recruitment, forced labour, debt bondage and other crimes”.593 The Emergency Regulation set up a procedure for the custody of these children beginning with the state official who was in charge of the identification of the children. Within 24 hours from the time when there is a notification of the surrender or arrest of a prospective former child soldier, the Magistrate is to see the 589 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 8 590 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 8 591 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 8 592 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 8 593 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9

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child. Within a month from this date a social inquiry report ,which is to list the child’s immediate and long-term needs, is to be requested by the Magistrate. The Magistrate is to interview the child in camera and then has two alternative actions to take, either he can decide that the child be returned to the care and custody of his parents or guardians, or the Magistrate can order that the child be placed in a protective child accommodation centre.594 If the child goes to a protective child accommodation centre, the Magistrate is to consider the social inquiry report and then decide whether to:595 1. 2.

3.

Return the child to the charge care and custody of his parents; Determine if a child should be accommodated for a period not exceeding one year in a Protective Child Accommodation Center under the care of the provincial commissioner for Child Care Services; Send the child to a Protective Child Rehabilitation Centre for a period not exceeding one year. Should the child have committed an offence during any period in which he was recruited as a combatant, the Magistrate shall place him in a Protective Child Rehabilitation Center.

The Emergency Regulation established an accommodation centre for former child soldiers where there is no evidence of any offence committed, and a rehabilitation centre where there is evidence of an offence committed while the child was associated with an armed group.596 The Commissioner General of Rehabilitation, Major General Daya Ratnayake, does not make a distinction between the centres and terms the centres “Child Accommodation and Rehabilitation Centers”, raising concerns about criminal responsibility versus rehabilitation.597 The Major General and the Attorney General, Mr. Mohan Periris, stated to the Special Envoy that the children were to be treated as victims and not as perpetrators, and “that their dossiers before the court would not lead to criminal prosecution”.598 While all the identified children who have been associated with armed groups have been identified as victims, and not perpetrators, their status was not clear by January

594 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9 595 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9 596 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9 597 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9 598 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 9 and 11

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2010.599 In the Emergency Regulation 1462/8 of 12 September 2006 there are provisions for prosecution which the Emergency Regulation of 1580/5 of December 2008 does not repeal or change, which leaves the door open for prosecution.600 The Special Envoy in this regard gave the recommendation that: [a] judicial directive from the authorities is clearly needed and should be sent out to all judicial authorities clarifying that no child should be prosecuted based on his or her association with any armed group and spelling out the procedure for closing and dispensing of the child’s dossier once the child’s rehabilitation has been successfully completed. This should also be clearly communicated to the security forces to ensure that they can fulfi ll their protection mandate of this particular segment of the population, and will not be exposed to any form of stigmatization or further security related restrictions.601

If a child is placed in an accommodation centre, the child’s case should be reviewed every three months by the Magistrate until the release of the child, while if the child is taken to a protective rehabilitation centre, the child’s case is to be reviewed every month for no longer than one year.602 The locations where accommodations centres and rehabilitation centres have been established should according to the Emergency Regulation be declared in a Gazette to be such protective places, however by January 2010 none (the Ambe Pussa/now closed, Poonthotam Center and Ratmalana Hindu College) had received such a declaration.603 The children that the Special Envoy talked to in the Poontotham Center, all had met the Magistrate in Vavuniya at least once, and said they had regular contacts with probation officers.604 While the Magistrate does interview the children in camera, another concern is that neither the parents nor the guardians of a child were present when a child was being interviewed by the Magistrate.605 A more child friendly approach 599 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11 600 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11 601 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11 602 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 603 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 604 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 605 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11

The Work of the United Nations on Children and Armed Conflict

would be to allow the parents and the guardians to be present, both to accommodate the needs of the child and to bring the parents and the guardians into the process at an early stage, which would for instance help facilitate the determination of whether a child would be able to go back to the parents or to a centre, and other issues that might surface throughout the process. There were some concerns regarding the children’s stay in the centres, of which one was that the children did not know for how long they were going to remain in the centres.606 Another concern was that in the majority of the children’s cases at the Ratmalana and Poontotham centres their cases had not been processed due to months of delay. Before their identification and transfer to the centres for children, several of the children had been in adult “surrendee” centres for long periods of time, even as the law states that the Magistrate is to see a child right away.607 However, at the same time the centres were well-run, and for instance at the Ratmalana centres, which was also supported by the Tamil community in Colombo, the children received psycho-social support by professionals, they were offered adequate education and skills training programmes, and were looked after by well-trained personnel.608 The girls lived in separate quarters from the boys and they were mostly cared for by female personnel. The concerns that the Special Envoy had were that the family visits that the children had only took place once a month and did not last very long, while the children needed to spend more time with their families.609 Another concern was the need for the demilitarization of the children’s centres where for instance at the Poontotham and Ratmalana centres 40 per cent were Cadet Corps officers dressed in uniform, while the staff had actually been ordered to wear civilian clothes.610 Also at the Poontotham centre it was the military and not the civilian police that made up the security detail. A further concern was that the planning for the release and the community-centred rehabilitation and re-integration of the children needed to become a priority for the government. In this regard a release date should be determined “as soon as possible”, and also it was crucial to map and plan for where the children were to return to, which required consultations with the communities and would include an assessment of the education, skills training and psycho-social needs that the children had, which should be

606 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 607 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 608 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 12 609 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 12 610 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 12

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done in conjunction with the needs of the local children in these communities.611 The overall vulnerability of the communities, as well as the lack of basic infrastructure in those areas that were affected by the conflict in northern Sri Lanka, needed to be taken into account in the planning for reintegration. The Sri Lankan government has a National Action Plan of the National Framework Proposal for Reintegration of Ex-Combatants into Civilian Life, which the Special Envoy said might be a workable framework for the re-integration of these children. Furthermore, all the children should be issued birth certificates and regular ID cards and a certificate of rehabilitation, which all the surrendee children who had been rehabilitated in 2009 had received. Finally that family and communitybased reintegration is the best option for almost all children was emphasized by the Special Envoy, while rehabilitation at centres is viewed as a last resort, which the Emergency Regulation 1580/5 also provides for.612 The Magistrates primarily decided to send the children to a centre and not home, for instance the Vavuniya Magistrate had in the last months only in seven cases, all concerning girls, decided that the child be brought back home to her parents and not transferred to a centre.613 In all these cases the girls were pregnant. From these centres 183 children had been released by January 2010, however they still needed support in terms of receiving personal documents like birth certificates and ID cards.614 For instance the Terrorist Investigation Unit issued temporary ID cards to those children that were released from December 2009 to January 2010, and the protection concern was that these temporary ID cards could result in the children being stigmatized by the communities. 11.5.9.1.3. Issues of Accountability The Security Council Working Group on CAAC issued conclusions on Sri Lanka in their reports S/AC.51/2007/9 and S/AC.51/2008/11, and the Special Envoy on his visit followed-up on the commitments that the Minister for Disaster Management and Human Rights, Mr. Samarasinghe, had previously given to the UN.615 The issue concerned that on 27 August 2007 a high-level inter-ministerial committee had been established which was to investigate allegations of members of the Sri 611

Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 13 612 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 13 613 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11 614 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 11 615 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 14

The Work of the United Nations on Children and Armed Conflict

Lankan security forces having aided and abetted in the recruitment of children on behalf of the Karuna faction, and the Special Envoy wanted to partake in this committee’s findings. However, no findings or reports could be produced, while the Minister stated that he would follow-up on the issue and report back to the Special Envoy which he had not done by January 2010. Grave violations committed against children by all parties, including killing and maiming of children and attacks on schools and hospitals, had taken place between January and May 2009, which the Special Envoy urged should be investigated and that the perpetrators be brought to trial.616 Here the Special Envoy also alluded to that if the government was to establish a truth and reconciliation commission, these crimes perpetrated against the children should be part of such a commission. 11.5.9.1.4. Tracing and Family Unity The Department of Probation and Child Care Services directs the tracing of children in Sri Lanka, and had been able to identify 1,221 children in the north of the country who had been separated, were unaccompanied or orphaned by January 2010.617 At the time of the Special Envoy’s visit 517 of these children had been reunited with their families or relatives, and 704 had been housed in residential homes. By January 2010, 162 parents had reported that their children were missing to probation officers. Several children were still untraced or unidentified, because there had not been a coordinated tracing structure in place nor sufficient sharing of information between the different agencies involved in the tracing activities.618 Furthermore, many agencies did not have full access to all the camps and areas, nor were there enough available human and other resources for tracing activities. Many teachers have mentioned how the children have been seriously affected by the war, and that many children suffer from a lack of concentration in school, sleeping problems, anxiety attacks and other PTSD symptoms.619 11.5.9.1.5. The Paris Principles and Commitments (2007) A special age group of former child soldiers who requires special consideration and which the Paris Principles make provisions for are the individuals who were 616 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 14 617 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 15 618 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 15: Children still remain untraced. 619 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 15

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under the age of 18 years at the time of their recruitment, but who during their time with LTTE and/ or at the end of the conflict had turned 18–20 years of age.620 Sri Lanka is a signatory to the Paris Principles and Commitments, and the Special Envoy on his visit raised the issue of these former child soldiers who were 18–21 years of age, number unknown, with the Sir Lankan Minister of Justice, “urging” that the Sri Lankan government consider their cases, as they have been victimized, by adopting special guidelines, programmes and procedures, which the government said it would do.621 In the Paris Principles and commitments the centrality of the family and community is emphasized in the process of rehabilitation of the former child soldiers. To have children institutionalized in specific child centres for former child soldiers does not provide for a family or community environment, which for instance the Special Envoy for Sri Lanka brought up.622 The Paris Principles emphasizes the civilian nature of rehabilitation centres for children formerly associated with armed forces or groups. 11.5.9.1.6. The Security Council Working Group on CAAC’s Conclusions on Children and Armed Conflict in Sri Lanka As a response to the Special Envoy’s report, the Security Council Working Group on CAAC issued conclusions on the situation for children in Sri Lanka in June 2010, in which a public statement was sent by the Working Group’s Chairman to all the parties to the conflict, and they were called upon “to continue to comply with Security Council resolutions 1612 (2005) and 1882 (2009)”, and that they “cooperate to establish the whereabouts of all the children who had been recruited, including those who were now over 18 years of age, and whose fate remained unknown”.623 The Working Group addressed the leadership of the Tamil Makkal Viduthalai Pulikal, who was urged to “track and release any children” who might still be with them, and to put an end to recruiting/re-recruiting and using children.624 A recommendation to the Security Council was given to transmit a “Letter by the Chairman of the Security Council Working Group on Children 620 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6 621 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Confl ict to Sri Lanka, 05-11 December 2009, p. 6 622 Visit of Major General (ret.) Patrick Cammaert, Special Envoy of the Special Representative for Children and Armed Conflict to Sri Lanka, 05-11 December 2009, p. 10 623 Security Council, Working Group on Children and Armed Conflict, Conclusions on children and armed conflict in Sri Lanka, S/AC.51/2010/2, 3 June 2010, para. 7 (a) and (b) 624 Security Council, Working Group on Children and Armed Conflict, Conclusions on children and armed conflict in Sri Lanka, S/AC.51/2010/2, 3 June 2010, To the Leadership of the Tamil Makkal Viduthalai Pulikal, para. (a)-(c)

The Work of the United Nations on Children and Armed Conflict

and Armed Conflict transmitted by the President of the Security Council to the Government of Sri Lanka”, in which the “zero tolerance” policy adopted by the Sri Lankan government on the recruitment and use of child soldiers was to be welcomed (a)(i), and where concern was to be expressed, especially concerning “their recruitment and use by LTTE” and other violations and abuses (b)(i), and concerning about how children had become impacted by the final phase of the conflict in 2009 (ending May 2009) as many children in IDP camps had been five years of age (b)(iii), and encouraging the government among other things that a “child-tracing network in former conflict areas of the country” be established (c)(ii).625 Furthermore a “Letter by the Chairman of the Security Council Working Group on Children and Armed Conflict transmitted by the President of the Security Council to the Secretary General” invited the Secretary-General “to call upon the international community” to sustain funding for child protection capacity-building, and for him requesting UNDP, UNICEF and other appropriate UN agencies that socio-economic issues “in close cooperation with the government of Sri Lanka” be addressed, and that he would issue a follow-up report by 2011 on how the conclusions had been implemented (a–d). Lastly a “Letter by the Chairman of the Security Council Working Group on Children and Armed Conflict to donors” was issued, in which they were invited to protect and assist together with the government of Sri Lanka, especially former child soldiers, IDPs, unaccompanied and separated children, and provide funding so that personnel for landmines and unexploded ordnance surveying and clearing could be hired as well as provide assistance to victims of such devices (a–c). In the SG’s annual report on CAAC of 2011, the Tamil Makkal Viduthalai Pulikal (TMVP) (Iniya Barrathi faction) was still listed as recruiting and using children.626 11.5.9.2.

Case of the MRM and the Post-Conflict Environment: Nepal

Edward Thomas shows the challenges involved with the UN monitoring and reporting mechanism as it concerns child soldiers in a post-conflict situation such as Nepal where a certain level of violence has continued. Thomas points out that the first challenge is the lack of clarity in international law and policy as regards the recruitment and use of children as to age, whether a conflict is international or internal, the issue of voluntary and involuntary recruitment and the lack of a definition of consent by children, or duress and coercion, as well as the lack of a definition of armed conflict in general (which has implications for defining the nature of the problem of child recruitment) in combination with the ambiguous context of transitioning from armed conflict to peace, in this context how to re625 Security Council, Working Group on Children and Armed Conflict, Conclusions on children and armed conflict in Sri Lanka, S/AC.51/2010/2, 3 June 2010, Recommendation to the Security Council para. (a)-(c) 626 Children and Armed Confl ict, Report of the Secretary-General, A/65/820S/2011/250, 23 April 2011, Annex II

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port and monitor on child soldiers becomes a very challenging task.627 He refers here to the Cape Town Principles for guidance and means that they have been an important tool as they clearly state that the recruitment and use of children under 18 years is illegal in contrast to the many different definitions in the various treaties, protocols and documents in international law, and refers to the “maximalist” definition of a child soldier in these Principles:628 ‘Child Soldier’ in this document means any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers, and those accompanying such groups, other than purely as family members. It includes girls recruited for sexual purposes and forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms. 627 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 93-94: Thomas refers to Additional Protocol I to the Geneva Conventions (1977), Article 77 (2): States can recruit 15 to 18 years old; Additional Protocol II to the Geneva Conventions (1977), Article 4 (3)(c): prohibits recruitment by non-state actors of children under 15 years; the Convention on the Rights of the Child (1989), Article 38: States can recruit from 15 to 18: but not non-state actors; the ILO, the Worst Forms of Child Labour Convention (1999), Article 3 (a): 18 years – involuntary recruitment, but accept voluntary recruitment from 15 years; the Rome Statute of the ICC (1998), Art. 8 (2)(b) xxvi, Art. 8(2)(e) vii: 18 years for involuntary and voluntary recruitment; the Optional Protocol to the CRC on Involvement of Children in Armed Confl icts (2000), Art. 3: Government armed forces cannot recruit 15-18 years olds for involuntary recruitment, but accept voluntary recruitment from 15 years into the armed forces of the state; (Art. 4) prohibits recruitment by non-state actors under 18 years of age; child recruitment must be ‘genuinely voluntary.’ With regards to the participation of under 18 years olds in Hostilities, Thomas refers to Additional Protocol I to the Geneva Conventions (1977), Article 77 (2); Additional Protocol II to the Geneva Conventions (1977), Article 4 (3): Prohibits both state armed forces and non-state actors from using under-15 years olds to take direct part in hostilities; the Convention on the Rights of the Child (1989), Article 38; the ILO, the Worst Forms of Child Labour Convention No. 182 (1999), Article 3 (a): Direct and indirect participation in hostilities is prohibited for under-18 years old who are forcibly recruited, ‘not for lawful volunteers; the Rome Statute of the ICC (1998), Art. 8 (2)(b) xxvi, Art. 8(2)(e) vii: It is a war crime to use under-15 years olds in hostilities; The Optional Protocol to the CRC on Involvement of Children in Armed Conflicts (2000), Art. 3 and 4: Non-state actors are prohibited from using under-18 year olds in hostilities; He notes that it was with the 1999 ILO Convention that there was a change from 15 years to 18 years as the age of majority for soldiers (p. 99). 628 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 99: The 2007 Paris Commitments to Protect Children from Unlawful Recruitment or Use by Armed Forces or Armed Groups that built upon the Cape Town Principles do not have the same definition.

The Work of the United Nations on Children and Armed Conflict

Secondly, he shows the necessity to include a social, political and economic analysis into the MRM process as child recruitment and use take place in a context, and that to provide such an analysis is a challenge in itself.629 He argues that skilful theory and analysis of the social and economic context are necessary so that the monitoring process becomes effective in societies transformed by violence. He gives the example of Nepal where: many young people under 18 can be placed somewhere on a wide spectrum of affi liation to political groups, some of which include a military or a criminal element. Some are coerced to join; some join for a livelihood; some to escape or address gender or caste discrimination; some join for adventure; and some join because they believe in revolutionary change. Putting these economic, social and political motivations, pressures, and affi liations into a human rights framework that takes into account both the agency of young people and the special protections afforded to under-18s in an armed conflict, require a deft monitoring system.630

The value of the definition of a child soldier in the Cape Town Principles Thomas argues has been that it puts child recruitment and use in a social and economic context, and as such acknowledges “recruitment and labour needs in a military economy”.631 In the military economy of war everybody, civilians, children and combatants, shares the vulnerability of being dependent on the military system, and not being able to depend on the social structures which have been changed or torn down.632 Furthermore, Thomas notes that recruitment and use of children is treated as a “form of abuse” in the Cape Town Principles and they view the family as the primary solution to this abuse, being “a private and depoliticized emotional site of social integration”.633 This is important because since the Principles do not deal 629 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 95 630 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 95 631 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 99-100 632 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 100 633 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93121, p. 100: the Cape Town Principles 32. Family reunification is the principle factor in effective social reintegration. a. For family reunification to be successful, special attention must be paid to re-establishing the emotional link between the child and

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with the volition and agency of children, or the issue of consent, and growing maturity of children, the issue whether all children want to return to their families or whether this would be the best solution for all is not really adequately dealt with.634 This has had consequences for the reintegration of former child soldiers, girls and boys, in Nepal. Both the government forces and the Maoists recruited and used child soldiers during the armed conflict. The Maoists abducted many children, but a lot of children also voluntarily joined.635 The Maoists engaged in political campaigns and in cultural performance groups, and these events served as a way into the movement for many children and young people. The cultural performance groups went to villages where there were no televisions and put up plays about Maoists politics as well as music and dance. The next step would be for the children and youth to engage in other types of Maoist political activism, which could include to what amounted to forcibly “soliciting donations”, forcibly policing villages in Maoist controlled areas, becoming a member of village defence forces, with some graduating from these defence forces to become members of the Maoist People’s Liberation Army (PLA).636 Some young females joined the PLA in the context that gender equality was promoted by the Maoists’ various organizations and by the army, and that they had “strict rules against the sexual harassment of women”.637 When the armed conflict ended in 2006 the government and the CPN-M entered into the Comprehensive Peace Agreement (CPA), in which they agreed not to recruit or use children under the age of 18 years in the armed forces.638 The PLA combatants were organized into cantonments, and the monitors from the UN were to identify all those combatants who were under the age of 18 years “at the time of the ceasefire in May 2006” and those adults who had joined the PLA

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the family prior to and following returns; b. Where children have not been reunited with their family, their need to establish and maintain emotional relationships must be recognized; c. Institutionalization should only be used as a last resort, for the shortest possible time, and efforts to find family-based solutions should continue. Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 100 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 96 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 96 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 96 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 96

The Work of the United Nations on Children and Armed Conflict

after the ceasefire. Of 31,318 combatants, around 2,973 were found to be under the age of 18 at the time of the ceasefire and had been disqualified by the UN monitors. In order to be able to identify those who were under 18 years of age, staff from UNICEF and the UN political mission in Nepal working together in mixed teams in order to test the maturity of the memories of the respondents used calendars of historical events, which was a time consuming process.639 It was not possible to use formal birth registers, because between 1999 and 2005 solely around 34 per cent of all births in Nepal were registered. However, no formal release of children had taken place even two years after the age determination process, because as the Maoists and the government were engaged in discussions on security sector reform to have young soldiers (some in 2007 now over 18 years) released was a concession that the CPN-M could not afford.640 New smaller conflicts, many times connected to criminality, emerged with the end of the armed conflict and the beginning of the peace process, which the international law of armed conflict did not apply to.641 In the Tarai area where the CPN-M had been strong, people became increasingly more politically aware, demonstrations followed and some small fragmented local groups started to use violence, having been somewhat influenced by political violence in India such as in Uttar Pradesh. The differences in the many documents determining the age limit for child recruitment and use are illustrated in the Nepali case. The government ratified the Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflicts in 2007, and banned forced recruitment in a binding declaration, and the minimum age for recruitment into the Nepal Army and the Armed Police Force became 18 years.642 However because of the 1947 Tri-partite Agreement between Nepal, India and the UK which makes recruitment of Nepalese by the British Army possible in Nepal, recruitment of children in Nepal needs to be seen in the context of that the British Army can recruit children from the age of 17 years and a half.643 639 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 96-97 640 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 97 641 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 97 642 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 98 643 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 98

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That there are no clear definitions of what constitutes an internal armed conflict and an armed group became problematic for the application of the Cape Town Principles in the Nepalese context. To apply the Cape Town Principles to all children under the age of 18 years “in any capacity” in “any kind of regular or irregular armed force or group” could have been feasible, and after the peace agreement many armed groups or political fronts linked to armed groups existed in Nepal which a lot of young people were engaged in, however there was no longer an armed conflict going on.644 In order for an internal armed conflict according to Additional Protocol II to the Geneva Conventions to exist, the thresholds in its Article 1 need to be fulfi lled: “armed forces and dissident groups or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”, and furthermore the Protocol does not apply to “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts ”(Article 1(2))645 The armed groups that came to the fore in Tarai in Nepal at the end of the war did not reach these thresholds, and “international law does not deal with recruitment to armed bands taking part in internal disturbances that do not amount to an armed conflict”.646 Instead it is the national criminal law system that should apply. In Nepal, the broad definition of child soldiers in the Cape Town Principles could have covered some of the young people who were members of the many armed groups that had emerged.647 The CPN-M is a political party and it has an army, the PLA, and several unarmed front organizations but some of these engage in political violence, and the PLA was part of a mass political movement that many young people under 18 years participated in.648 But in the post-conflict environment it was not only the PLA that was linked to a political movement,

644 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 101 645 Addition Protocol II (1977) to the Geneva Conventions, Article 1 and Article 1 (2) 646 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 101 647 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 101 648 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 101

The Work of the United Nations on Children and Armed Conflict

also many other armed groups were linked to unarmed political movements and they were engaged in the recruitment of many young people.649 As the formal release of children had stalled, the Cape Town Principles were applied by some international and Nepali organizations in order to find a way to release children that participated in a non-military capacity in the CPN-M civil organizations, including the party, the students’ union and the Young Communist League.650 Here the organizations applied the UNCRC best interest of the child principle “as a power of protective adults to over-ride harmful child opinions, and served to buttress a protective application of the Principles”.651 In this context Thomas questions whether the Cape Town Principles should be applied to “all young members of a mass movement that has an armed wing”, and asks: “Can young children be ‘demobilized’ from a revolutionary party?”, arguing that while some children were forced to join or support the CPN-M, maybe the “demobilization” of the young party volunteers could violate their rights to freedom of thought, expression, association or assembly?652 With regards to the children who engaged in Maoist or Tarai politics, a number of institutions that worked with children interpreted the Cape Town Principles in a maximalist way where in order to get benefits from the demobilization programme the children had to disown Maoism.653 As support for their approach these institutions referred to the Paris Commitments where it is stated that no political party can use for political purposes children who have been formerly associated with the military. Other such institutions looked upon these disownments as a way to ignore the civil and political rights of the children in a forcible way. They meant that this did not lead to that the children were depoliticized, but instead “was part of the coercive politics of Nepal that required young people to engage with patrons and make complex judgments about political

649 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 101 650 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 651 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 652 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 653 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102

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power”.654 In this context especially the situation for girls has needed to be highlighted as some of them supported or joined revolutionary politics after having had personally experienced gender discrimination, in combination with the fact that the girls had defied their families by becoming voluntary recruited.655 These girls might not want to resort back to and reintegrate into their former lives, as they might view “reintegration” as “re-domestication” and where some would risk forced marriage. As Thomas states, “[t]his is not the reintegration outcome that the Cape Town Principles have envisaged”.656 Thomas shows the necessity of engaging in analysis, which is badly needed in the monitoring and reporting on children in armed conflict within the UN, and that child rights violations in an armed conflict do not take place without a context, and that there is a need to examine and explain that context in order to understand why these violations take place. For instance the SRSG-CAAC has mentioned that once when she came to a camp for demobilized children in Nepal they told her to go away. 11.5.9.2.1. Monitoring in Nepal Monitoring requires a high degree of specificity in order to avoid ambiguity to be able to understand recruitment of children.657 One problem with the many databases on child soldiers that have been set up in many conflict countries are that the questions on these questionnaires are not designed to be answered with enough clarity, and ambiguous answers are often the outcome, which can be manipulated.658 In order to be able to conduct effective monitoring in the complex postconflict environment of Nepal, guidelines with different groupings of questions were developed for the monitoring, and it became necessary to make the questions comprehensive, wide-ranging and highly specific in order for the monitors 654 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 655 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 656 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 102 657 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 104 658 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 104

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to really understand the complexity of the situation.659 One policy on child and witness protection including consent and confidentiality was developed using a cautious approach. Another policy which concerned “listening to children and young people” in order to learn about their lives and understand what the starting point would be for the analysis of the children and young people interviewed was also developed. First the monitors examined the different groups operating in Nepal, and the monitors were asked to specifically consider the risks that people faced by giving information, to look for people who were moving from one group to another, as for instance some boys and girls were going from the PLA to different Tarai armed groups, and also to examine people going from unarmed groups to armed groups that are linked to them, and to understand where to look for information.660 In Nepal a lot of boys and girls seemed to have been joining unarmed groups that have links to armed groups and then after a while they join the armed groups. Here follows examples of different sets of questions that the monitors were asked to cover. The first set of questions was “What are the different kinds of armed groups in Nepal?”, and a table of four armed groups and one unarmed political group linked to an armed groups was set up to help the monitors identify the groups that children had been recruited by. Table of different kinds of armed group in Nepal661 Type of group

Examples

Recognized armed forces

The legally regulated Nepal Army and the CPA-recognised PLA.

Former militias linked to recognized armed forces

Both the Nepal Army and the PLA set up militias in 2003-4 and disbanded them in 2007. Training and arms received from these militias may shape local patterns of military activity.

659 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 104 660 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 105-106 661 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 105

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Informal armed groups

These include local village based self-defence forces or security forces which are set up in places where the state does not provide security. They may be influenced by former militias.

Armed groups operating in the Tarai

These include the Jantantrik Tarai Mukti Morcha, the Madhesi Mukti Tigers, Tarai Cobra, Chure Bhawar Ekta Samaj, Tharu Liberation Front.

Unarmed groups which enroll young people with active links to armed groups; or have used or say they may use political violence

The Young Communist League, CPN-M ethnic and regional fronts and occupational organizations; mainstream parties student and youth groups, Tarai parties youth groups, unarmed cultural groups linked to Tarai armed groups.

The next set of questions concerned the methods of recruitment “How do armed groups recruit and use boys and girls?”, which had the underlying purpose of learning about the kind of choices that poor young people were living with, as well gaining an understanding of possible dilemmas that commanders of armed groups were dealing with when they were establishing their forces.662 In order to end recruitment it is necessary to understand how recruitment is carried out. Questions on how armed groups recruit boys and girls663 Who are the people who recruit boys and girls – other children and young people, members of armed groups, members of political parties, family members, others? Where do recruiters meet boys and girls (schools, clubs, streets, during demonstrations, in unarmed groups with links to armed groups, in rural areas, in urban areas)? Are there any specific incidents when many boys and girls were recruited at once? Are there any specific times of the year (linked to harvest or seasonal migrations) when recruitment is more likely in a specific area? Are there any specific political changes (such as unification or factionalization of armed groups) that make recruitment more likely? 662 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 106 663 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 106

The Work of the United Nations on Children and Armed Conflict

What age groups of boys and girls do recruiters target? Do recruiters especially target girls or boys? What ethnic group do recruiters target? Do recruiters target poor boys and girls? ….

The monitors were advised to separately ask the “boys and girls” or “young men and women” and not use groupings like “children” or “young people”, because incentives, ethnic backgrounds, places of recruitment and their motivations all differed between them.664 Furthermore the monitors were advised to ask for estimated numbers of recruitment and not to use the term “some”, and they were advised to look for “triggers” for recruitment since particular events can trigger recruitment such as violent demonstrations, or recruitment can be triggered by the agricultural calendar, or when an armed faction either unifies or falls apart.665 They were also asked to look for “clusters” of people such as particular areas, occupational, social or ethnic groups, or when boys and girls become separated from their families. The next set of questions was about “Who are the boys and girls who get recruited to armed groups?”, as they are not a homogenous groups even as many child soldiers are poor and male, they all have different motivations for joining, and the monitors were asked to be “careful when describing the different groups involved in the different kinds of armed groups”.666 The specific questions in this grouping included: Questions on the different kinds of children who get recruited to armed groups?667 Age, sex, ethnic group, family occupation, district and Village Development Committee (VDS, the lowest level administrative level in Nepal) of origin, district and VDC where they live now (make clear if they consider themselves to be urban or rural people, or people migrating between the two).

664 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 106-107 665 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 107 666 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 107 667 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 107-108

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Family affi liation: were they living and eating with their parents at the time of recruitment; were they living and eating with other family members; were they living and eating on the streets? Level of schooling. Parents’ occupation, child’s occupation; parents/ family access to land; parents/ family access to other productive resources. Previous political involvement – were they or their relatives involved in unarmed groups which enroll young people with active links to armed groups; or to groups which have used or say they may use political violence? Previous military involvement (with PLA, Nepal Army, militias or other groups). With PLA and Tarai armed groups you should note any party organization they joined before joining the PLA/ Tarai armed groups. With former PLA members, note any time spent in cantonments, and reasons for leaving. If they have moved from on armed group to another, you should note carefully the process of recruitment to first group, release from first group, recruitment to second group. Method of recruitment and incentives for joining.

The monitors received background information to take into account when considering this set of questions. This note of information stated that in Nepal child recruitment is not a criminal offence but that it is still against the law, and that according to international law it is a war crime to recruit and use children under the age of 15.668 The note made reference to Optional Protocol to the Convention of the Rights of the Child on the involvement of children in armed conflicts (2000), which requires that the government makes recruitment a criminal offence by legislation. The Nepalese government has neglected to do that after it ratified the Protocol in February 2007, however upon ratification the government issued a binding declaration stating that “the minimum age for recruitment in the Nepal Army and the Armed Police Force shall be 18 years”.669 Also, the note made reference to that the government and the CPN-M entered into the Agreement on Monitoring of the Management of Arms and Armies on 8 December 2006, which banned the use of children under the age of 18. The next set of questions concerned children’s and young people’s levels of involvement in the different armed and unarmed groups, as there are “many routes into an armed group”, and that in Nepal the unarmed groups can “play

668 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 108 669 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 108

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a role in training and orienting girls and boys towards recruitment into armed groups”.670 This set of questions was as follows: What are the different levels of involvement in armed groups and unarmed groups with regards to processes of recruitment?671 Political education: Exposure to logos, slogans or songs about armed struggle. Attendance at political meetings of more than one political party. Attendance at political meetings of only one political party. Martial arts training: Training in unarmed violence. Involvement in legal political activity: Joining student or youth wings of more than one political party. Commitment to student or youth wing of only one political party. Payment of party dues to more than one political party. Payment of party dues to only one political party. Taking part in cultural activities for a political party. Attendance at demonstrations. Attendance at violent demonstrations. Fundraising for political party. Involvement in illegal political activity: Active participation in violent demonstrations. Extortion for a political party. Intimidation of political opponents. Intimidation of civilian population. Military recruitment: Providing services for an armed group – domestic, portering or sexual services. Taking part in cultural activities for a military group. Military training. Being given a weapon. Being given a uniform. Payment for military services. 670 Adapted from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 108 671 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 108-109

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Holding military rank. Participation in direct hostilities. Spying. Participation in abductions or torture. Length and frequency of involvement: Attendance at political activities while staying with family. Attendance at political activities while staying in a group living arrangement with other young civilians. Full time commitment to political activity while staying in a group living arrangement with other young civilians. Participation in military activities while staying with family. Participation in military activities while staying in a group living arrangement with young civilians. Living in barracks, camp or cantonment. Incentives for involvement: Payment of regular wages. Payment of irregular wages. Provision of food or drink. Provision of housing. Children required to beg/ask for food from local population. Children required to beg/ask for shelter from local population.

The next set of questions involved “What are the different kinds of participation in demonstrations and political meetings?”, and in order to understand this the underlying issues regarding who gets involved, the risks involved to the children during demonstrations and questions about schools being a recruiting ground for political activity of children needed to be examined.672 The following set of questions demonstrate this: Questions on children and politics673 Kinds of children: Age, sex, ethnic/ caste background? Are they at school, if so, what grade? Are they working children? If so, what kind of work? Are they living or working on the street? Are they separated from their families? 672 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 110 673 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 110-111

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Possible risks to children in demonstrations: Number of boys and girls taking part, and approximate ages (under 10, aged 10–14, aged 14–16, aged 16–17) Are they any indications that the children have participated in the demonstration in return for goods or services? Are there any indications that the children have been forced to participate in the demonstration? Are there any children who live and work on the street in the area? Do they play a role in the demonstrations? Have local monitors discussed with street children or with organizations working with street children whether they are joining demonstrations, and why they have been doing so? What is the role that children play in the demonstrations? Are any of them placed at risk (for example, are any placed in front lines of the demonstration)? Are they carrying sticks, stones or other items which could be used to commit acts of violence? How are police dealing with the demonstrations? How are police responding to the presence of children in the crowd? When political parties give children risky roles in demonstrations, how do police or other officials raise that with political parties? Use of schools: Are children being recruited for demonstrations from schools? Are schools being closed so that political parties can use them? Have children been brought to participate in the event in school buses? Is there any indication that children or teachers are being coerced so that children take part in demonstrations? Is there any indication that children or teachers are given inducements so that children take part in political activities? How do teachers and school administrators deal with requests/demands from political parties to recruit children for demonstrations? Has the school been ‘captured’ by local political parties? Is any party dominant on the School Management Committee? And is the School President affi liated with any party?

The note the monitors received regarding this section included that the age of majority in Nepal is 16 years, which is when a person is considered to be an adult.674 The Nepalese Code of Conduct for the election lists several prohibitions that the political parties need to consider, such as that children under the age of 16 years are prohibited from participating in demonstrations:675 674 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 110 675 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 111

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No children shall be engaged in the holding of any type of procession, mass meeting or rally or in any election related publicity campaign. (Art. 23, unofficial translation)

While the 16–17 years olds can freely participate in such activities, people who engage children under 16 years old to get involved in demonstrations risk being penalized according to the Code of Conduct. In this context the note also made reference to that according to Articles 13–15 of the CRC children under the age of 18 have the right to free expression, free association and free public assembly, and that adults “have a duty to provide children with direction and guidance so that they can exercise these rights”, which includes in a safe way (Article 5 of the CRC).676 The next set of sub-questions involved “How can you monitor coercion and consent?”, as there is a lack of clarity with regards to what constitutes consent and that there is a need to be able to examine whether a child really has agreed to join a specific group or to carry out certain activities.677 In this context the monitors needed to take into account that children are legally not capable of consenting with regards to some activities, either according to international law or national law.678 The note listed several such cases including that according to the Nepalese Civil Code, which was amended 1975, On Rape, Article 1, stipulates that “[g]irls under 16 cannot give consent to sex”, another such case was that the Nepalese Civil Code, amended 1964, On Disciplinary Matters, Article 6, stipulates that “[c] hildren under 18 cannot consent to conversion to another faith”. According to the Civil Code, amended 2002, On Monetary Transactions, Article 18, “[c]hildren under 16 cannot sign contracts”, and according to the Civil Code, Amended 1975, Traffic in Human Beings, Article 2, “the Civil Code prohibits the separation of a child under 16 from his/her guardian without the consent of the guardian”. (“In cases such as kidnapping, the consent of parents is an element of the legal understanding of children’s consent.”) Furthermore the note informed that “the ICC has a broad definition of coercion in relation to the crime of rape, that includes ‘taking advantage of a coercive environment’, ‘detention’ or ‘psychological oppression’. (ICC, Elements of Crimes, Art. 8 (2) 9b) (xxii)-1)). It recognizes but

676 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 111 677 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 112 678 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 112-113

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does not define ‘natural, induced or age-related incapacity’ to give consent.”679 The questions regarding the determination of consent included: Questions to help determine consent680 Did a parent or guardian consent? Was the child’s consent articulated or tacit? Can the child understand the consequences of the decision and complexity of the situation? Did the child have a capability to understand and communicate realistic aspirations and hopes? What level of information did the child have about the consequences of his/her decision? Did the child have some or regular opportunities to reconsider and reverse his/her decision? Was the child promised food or drink in return for consent? Was the child promised money in return for consent? Was the child promised interesting jobs or roles in return for consent? Were these jobs or roles unrealistically prestigious or glamorous? Did the act of consent take place in an environment of duress? (duress could include threatening body language, talking at people in an excessively authoritarian tone, talking to people with their backs to a corner, etc.)? Was a threat of physical violence made against the child, or made against an adult in the presence of the child, at the time that the child was asked to give consent? Was physical violence used against a child or used against an adult in the presence of the child, at the time that the child was asked to give consent?

11.5.9.2.2. Release from Cantonments With regards to the release of the children from the cantonments, it was found from interviews with girls and boys who had left the cantonments that there were several routes to being released.681 Of the many thousands of children in cantonments in January 2007, most of them were able to leave without any formal procedure. Gaining an understanding of how children are released contributes 679 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 113 680 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 112 681 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 113

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to the advocacy to end child recruitment and assists “in planning for release”.682 The monitors were asked to examine the different routes of release and how the children were released by the following set of questions: Questions on how girls and boys get released from cantonments683 Route of release from cantonment: What to ask for Children remain with families after going home from the cantonment for holidays and festivals In what areas are girls and boys likely to stay home after leave-near to or far from particular cantonments, areas with or without strong Maoist presence? How often do girls and boys get holidays? Are there any formal procedures for leave, and for over-staying leave? Who has the child’s military ID? Military ID is an important component of recruitment and release procedures, and entitlements. Who pressures girls and boys to stay at home? Who pressures girls and boys to go back to cantonment? Parents ask NGOs or international agencies to help release their children In what areas are NGOs and international agencies likely to be asked by parents to help release their children –near to or far from particular cantonments; areas with or without strong Maoist presence? Who do NGOs and international agencies negotiate with for release? What do girls and boys know about services available for them? What do girls and boys know about payments due to them? Families and community leaders negotiate release In what areas is the political environment conducive to release (is the CPN-M looking for support)? How do families/community leaders negotiate release? Have families publicly demonstrated against recruitment, or physically prevented recruitment, – and if so, what was the political environment that allowed for this to happen? Who do they negotiate with – PLA or other CPN-M leaders? What can they offer in return for release? Are children’s views taken into account in the process? 682 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 113 683 Table adapted from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 113-114

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Are there any formal procedures for release? What happens to children’s military IDs? Children escape cantonments How do girls and boys escape? Do they face any punishment for escaping? PLA commanders order children to leave In what areas are commanders likely to order girls or boys to leave? What kind of reasons are girls and boys given when they are ordered to leave? What are children’s views about payment of wages, and delays to payments? Are there any formal procedures for leave, and for over-staying leave? Who has the child’s military ID? PLA commanders reassign children to other Maoist organisations In what areas are commanders likely to reassign children? What kind of reasons are children given when they are reassigned? What are children’s views about payments? Are there any formal procedures for leave, and for over-staying leave? Who has the child’s military ID?

With regards to the Tarai armed groups that also have recruited children, of which there is not much knowledge, the monitors were also asked to consider that the children, boys and girls, recruited by the Tarai could “end up in prison” upon release which the children being released from the PLA did not have to fear.684 With regards to the release of children “from unarmed groups which enroll young people with active links to armed groups; or active links to groups which have used or say they may use political violence”, it was noted that while these are not armed groups, they still at times use “coercion to mobilize or retain girls and boys”, and that it was important to learn about how the children were being recruited into these groups and how they left these groups.685 With these groups the monitors were specifically warned that this was one of the most sensitive areas of inquiry and that they needed to take into account the risks involved for the people providing information.

684 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 115 685 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 115

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11.5.9.2.3. The Political Environment for Reintegration The issue of how girls and boys get reintegrated into society involves examining the context of where they are to reintegrate, the perceptions of the local authorities and population of the children as well as the children’s own views on whether they actually would like to reintegrate back into their previous families and home environments. As Thomas says “monitoring reintegration means monitoring the outcomes for children”, and these outcomes include school, work, re-recruitment, prison and homelessness.686 In Nepal it has been necessary to also examine the political environment for reintegration, as since a certain degree of violence still has continued with new armed groups having emerged who are linked to political parties which makes the environment conducive for continuous recruitment of children.687 In this situation the monitors were asked to examine how the boys and girls got reintegrated into the society by asking the following set of sub-questions: Table: How do girls and boys get reintegrated into society?688 Political environment for reintegration: What are the dominant political parties in the district? How do they view former combatants from the PLA or from other armed groups? Have members of any political party made threats against girls and boys returning from armed groups? Do political leaderships express welcome for girls and boys returning from armed groups? Do they believe that returning girls and boys need to change in order to fit into society? What kind of changes do they mention? Perceptions of returning children in the local population: What are the major ethnic groups in the area and how do their leaderships view girls and boys returning from Maoist armed groups or Tarai armed groups? Which groups of boys and groups of girls are seen to be in need, and deserving of help? Which groups of boys or girls are seen as dangerous or undeserving?

686 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 115 687 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 115 688 Table taken from Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 115-117

The Work of the United Nations on Children and Armed Conflict

Does the local population have any support mechanisms for those girls and boys who were formerly involved in armed groups? Who implements them? What is the plan for girls and boys who do not have any parents? Resources for reintegration: What is the budget for children in the VDC or District? What political parties have control over that budget? Does the District/VDC have a reintegration plan for conflict affected children? Do they have a plan for those who were former PLA? If so, what are the resources to implement plans (funds, staff, volunteers, institutions or organizations)? If there are no plans – what are the views of dominant political parties in the district towards the plans of international agencies or NGOs? What do they know of the plans of NGOs and international agencies? Do they think they are targeted at the right boys and girls? Outcomes for reintegrating children: Age, sex, ethnic group, family occupation, occupation/education before joining Nature of group that they joined (PLA, Maoist militia, cultural group, Tarai political group, Tarai armed group) Any time spent in PLA cantonment or Nepal Army barracks When did they join the armed group and when did they leave it? What was their age on joining? Motivation for joining, and current feelings about Nepal and Maoism Current activity – school, training, unpaid work in household, unpaid work outside household, informal work, formal work, other. What is the contribution that they make to the income of their family? How many of them are doing things other than school or work? What other things? Are there any positive outcomes, such as positions of responsibility or feelings of self-confidence? Are there any negative outcomes, such as prison, forced marriage, re-recruitment? Have any migrated? Where have they migrated to? Are any in full-time political work? For which party? Do they get paid for party work?

One of the outcomes of reintegration for some children formerly associated with armed groups, especially the girls, has been forced marriages. Therefore the monitors were specifically requested to ask questions on forced marriage, which included:689

689 Table in Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 117-118

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Questions on forced marriage: What are the different ethnic and caste groups in the area, and the traditional marriage systems of those different groups? At what age do girls usually get married? Is there any difference between different caste and ethnic groups? Is there any difference between girls from rich, middle, poor or very poor families? If girls are married below 18 – what kind of girls get married at an early age? Are girls who have been affected by the conflict more likely to get married early? Are girls who have been associated with armed groups more likely to get married early? Normally, what is the age difference between a boy/man and a girl/woman when they get married? If a girl has been associated with an armed group, what is the age difference between her and the boy/man when they get married? Is it different to the age difference of other girls or women? Normally, what is the difference in economic status between a girl/woman and a boy/man when they get married? If a girl has been associated with an armed group, what is the difference between her and the boy/man when they get married? Normally, who makes the decision to get married? If a girl has been associated with an armed group, who makes the decision for her to get married? Do you think girls or boys are ever forced into marriage? How do they get forced? Do you think girls who have been associated with armed groups ever get forced into marriage? How do they get forced? You can also ask some questions about the impact of early marriage on girls.

The monitors needed to take into account that according to the Nepalese Civil Code, Marriage, Article 2, the minimum legal age for marriage is 20 years without parental consent, and with parental consent 18 years.690 In 2001 a national census showed that the mean age for marriage had increased since 1961 for both females and males, and that in 2001 the mean age for females was 19.5 years and 22.9 for males and that in Tarai the mean age for females in Rautahat was 17.2 years and 25.4 years for females in the western mountains. It was the UN Mission in Nepal, UNMIN, a political mission, that developed these monitoring guidelines, and they were distributed to many local and international NGOs and UN agencies, however it was mainly the UNMIN child

690 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 118

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protection advisers, 12 Nepali and international staff, that used them.691 Their mandate was “to assess progress on the release and reintegration of members of the PLA who were under 18 at the time of the ceasefire”, and the guidelines made it possible for the UN staff in their reporting to consider the political and military environment, however they were difficult to carry out due to their complexity.692 Another reason why they were not widely used was because several children’s organizations categorized as child soldiers all children including those who were associated with the revolutionary or new political movements.693 The guidelines proved useful in that the monitors were able to identify the armed groups that recruited or used children, and what kind of political movements that used children.694 It became possible to understand from the information gathered the different ways children and young people were recruited, who they were, their level of participation in the armed and unarmed groups, their participation in demonstrations and political meetings and “the way that children and young people became involved in the transition of the country”.695 The information gained on consent and coercion showed “that many young people under 18 actively seek changes to their situation, or the situation of other young people”, and that “political parties were prepared to push reluctant or resistant children into political action”.696 The information gained on the release and reintegration gave much information on how children and young people “could exercise their rights not to participate in political activity”, and how children under 18 years of age tried to get away from the PLA.697

691 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 118-119 692 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119 693 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119 694 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119 695 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119 696 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119 697 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 119

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The reintegration questions gained information about what had happened to some released children, where some were found thriving and others living in destitute. Some girls had joined the PLA and other armed groups to escape the “gender order that severely disadvantaged them”, and then to come back home could be the same as backing away from having been independent and strong.698 The questions on forced marriages were some of the hardest issues to gain information on, and therefore the monitors did not find much information on forced marriages. While it was too difficult for the CPAs to draw any conclusions on the social and economic context of child recruitment (they need a different set of knowledge), the guidelines did provide some understanding on the sense of agency that some children possessed, “and the need to come to terms with that sense of agency in order to support them in finding a way into peace”.699 The findings from this study show that there is a great need to acknowledge the importance of dealing with children’s participation in armed conflict as well as politics in peace processes and peace agreements.700 The armed forces and groups that recruit and use children need these children to further their objectives, military and political, and they many times take advantage of the agency of children because they recognize this agency. They use the agency of the children and youth to further their own objectives, which often involves the use of violence. In this context they provide the children with alternatives to their situation by giving them everything from a sense of security, education, skills, employment, social status, and an avenue for political expression, and as Thomas means “the young people need to be able to find these possibilities in peacetime too”.701 11.6.

Conclusion

One of the positive developments of the increased awareness at the United Nations level of the situation for children affected by conflict and the establishment of the monitoring and reporting mechanism with its Working Group is that the gross violations and abuses committed against children cannot continue in darkness 698 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 120 699 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 120 700 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 120 701 Thomas, E., Between war and peace: Monitoring guidelines for child soldiers in Nepal’s peace process, Journal of Human Rights Practice, Vol. 2, Number 1, 2010, p. 93-121, p. 120

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and anonymously any longer. The issue is now to make the existing mechanism much more efficient and make it work in a systematic way. One challenge is to make the MRM mechanism work efficiently despite the politicization of some of the members of the Security Council and other governments. The issue of children and armed conflict has been the only human rights issue at the Security Council, in a context where some member states of the Security Council and the UN do not want to have human rights on the agenda of the Security Council at all. The right to the protection of human rights and international humanitarian law belongs to the civilians and to the children, not to the governments. To have a MRM mechanism that would be able to function in a systematic and continuous way and with a set of accepted rules would not make the protection on the ground for children be dependent upon the view of a government, or members of the Security Council. The 1612 MRM is about fundamentally serious situations where children are utterly exposed to grave violations for which accountability has been absent. This is the reason why there is such a need for the Security Council to keep politics out of the issue and take on its responsibility for the rights of children to live free of violence no matter who they are and where they live. For instance, regarding the report of the Secretary-General on children and armed conflict in the Sudan (S/2006/662), at the fift h meeting of the Working Group in September 2006, Ms. Coomaraswamy, the SRSG-CAAC, identified the following findings:702 –

– –

The persistence of a serious and unacceptable situation for the children of the Sudan, characterized by the recruitment and use of children by all parties to the conflict, including the Darfur region; The particularly high level of sexual violence against children, especially girls, and the need to combat the almost total impunity in that regards; The specific problems raised by inadequate access of children to health care and protection and by the lack of access by the monitoring mechanism and humanitarian teams to children.

The Permanent Representative of the Sudan was invited to share the Sudanese Government of National Unity’s view of the situation. The Permanent Representative argued that the government was ready to cooperate with the United Nations and gave some information on different constitutional and legal measures that the government had implemented.703 However the Permanent Representative wanted to separate the discussions on children and armed conflict 702 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 9 703 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 10

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in the Working Group from the discussions in the Security Council on the situation in the Sudan. At the subsequent meeting in November 2006, the Working Group adopted conclusions regarding the Secretary-General’s report on Sudan (S/2006/662) that had been discussed at the previous meeting.704 Also at the meeting the Deputy Director of UNICEF presented the “horizontal note” of the Secretary-General where Sudan was mentioned: “In the Sudan, the deterioration of the security situation in Darfur hampered surveillance activities. Violations committed included the killing and mutilation of children, the recruitment and use of child soldiers, grave sexual violence, attacks on hospitals and schools and denial of humanitarian access.”705 At the seventh meeting in February 2007, Sudan was mentioned in the “horizontal note” again introduced by the Deputy Executive Director of UNICEF: “In the Sudan, the violations committed in Darfur during that period included the killing and maiming of children, their recruitment and use as soldiers, grave sexual violence, attacks on schools and hospitals and denial of humanitarian access to children.”706 Also, at the subsequent eighth meeting of the Working Group Sudan was brought up in the presentation of the “horizontal note”: “Turning to the Sudan, he noted that the situation was getting worse in the eastern part of that country where access restrictions had severely constrained monitoring and reporting activities. Security had deteriorated in Darfur. The Janjaweed, the Sudan Liberation Movement/Army (SLM/A) and other armed groups had killed 36 children in their ranks, the Sudan People’s Liberation Army had acknowledged the presence of children.”707 Another issue is when commitments to sign action plans to release and stop further recruitment of children do not hold. One example is the action-plan commitment agreed to by the Sudan Liberation Movement/Army (SLM/A) in June 2007. There was a timeframe set of three months to release all the child soldiers and to stop further recruitment.708 However the SLM/A re-engaged in recruit704 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 15 705 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 24 (b). 706 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 35 (c) 707 Annual Report on the activities of the Security Council Working Group on Children and Armed Confl ict, established pursuant to resolution 1612 (2005) (July 2006June 2007), para. 45 (c) 708 Office of the SRSG-CAAC, Obtaining commitments from parties to confl icts, www.un.org/children/confl ict/english/commitments.html, printed 2008-08-29; the SLM/A was one of the signatories to the Darfur Peace Agreement, and there

The Work of the United Nations on Children and Armed Conflict

ing children into their fighting ranks. In February 2009 the Secretary-General submitted a country report on CAAC and Sudan to the SC Working Group on CAAC, and the Working Group came out with its conclusions to that report in December 2009. However, there is no enforcement mechanism in place and violations continue to be committed against the children. In the SG’s 2010 annual report on CAAC the Sudan People’s Liberation Army (SPLA) operating in southern Sudan and the pro-government militias operating in Darfur were listed as persistent perpetrators (after five years having been listed in Annex I), and in the SG’s 2011 annual report on CAAC they were listed again along with LRA (also one of the persistent perpetrators) operating in southern Sudan and with 14 additional parties operating in Darfur.709 Here one needs to ask how strong the commitment to end violations against children really is among some members of the Security Council, apart from the parties and the government concerned, given the level of atrocities committed against the children. Furthermore, if the UN is to use the same method as it has applied for child soldiering when it comes to the other violations then it is necessary to ask whether this approach has been successful given that of all the 64 listed parties to the SG’s annexes up until May 2009, nine alone had actually signed an action plan.710 Other challenges for the work on the protection of children affected by armed conflict are that some of the members of the Security Council and other UN entities might not always have a very deep understanding of a particular conflict in a country and the conflict’s different dimensions. This in turn affects the interpretation and understanding of the reality of how children of different ages are affected by conflict. As an example if the authors of a particular country report do not have sufficient understanding of the conflict dynamics at hand in that situation, that weakens the effect such a report can have. It cannot be enough to just report on a situation, analysis is also needed to gain a deeper understanding of a situation. This deeper understanding is then to lay as the foundation for the identification of the priorities of what needs to be done. The Security Council might not always have sufficient knowledge about the situation on the ground in a specific country and that affects how the issue of children will be understood.

were expectations that the action-plan commitment agreement by the SLM/A and UNICEF would lead to similar agreements by all the parties to the conflict in Darfur. 709 General Assembly, Security Council, Report of the Secretary-General, Children and Armed Conflict, A/64/742-S/2010/181, 13 April 2010, p. 47, and for the Sudan the two different peace-keeping operations the African Union-United Nations Hybrid Operation in Darfur (UNAMID), and the United Nations Mission in Sudan the Deputy Heads of Mission, together with the Country Representative of UNICEF had agreed to be the three co-chairs of the country taskforce on monitoring and reporting in the Sudan, para. 45; and A/65/820-S/2011/250, 23 April, 2011, Annex I, p. 54 710 Watchlist, UN Security Council resolution 1612 and beyond, May 2009, p. 2

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There is a great need for both depth and substance to be exhibited by the people and institutions involved within the UN so that an adequate understanding of what child protection actually means on the ground can take hold. Attitude changes in how one views children’s places in our societies in peacetime as well as in wartime is also an issue that should be discussed. In addition a change in the setting of priorities might be needed by not only the members of the Security Council, other UN bodies, but all members of the United Nations with regards to the protection of children in armed conflict. One might assume that the level of knowledge and engagement is higher than it is at times. Also, member states of the Security Council at any given time have different perspectives related to their national interests, and that is one reason why it is necessary to develop a common set of priorities based on international human rights law and international humanitarian law with regards to the protection of children in armed conflict. For instance Save the Children UK has commented that in the case of the Lord’s Resistance Army operating in Uganda, the Security Council included LRA and Uganda on its agenda because of an increase in its awareness of the regional dimensions of the conflict after having been briefed adequately on the situation.711 Knowledge about human rights, international humanitarian law, peace and conflict prevention and resolution issues are something very different than providing relief and assistance, a new set of knowledge might be required. In the Working Group long discussions on the situation in Myanmar significantly delayed the issuing of conclusions on Myanmar when some members argued that enough attention had been given to Myanmar because of the Security Council’s attention on Myanmar in 2007 when there was a crackdown on demonstrating monks.712 In addition, because of the cyclone Nargis sweeping in over Myanmar in May 2008, France as the chair did not push further. While the cyclone with the devastation that followed would give delays, at the same time the discussion concerning the crackdown on the demonstrating monks shows that there are significant limits at the Security Council level in terms of how it views its actual priorities regarding the protection of children in armed conflict. Because while at the same time that all the discussions are going on about issues that are not really related to the issue of the grave violations committed against children, the children continue to suffer and are being hurt. And there is no one stopping those violations from happening and that is the bottom line. Th is is also a reason why it is so important to have a strong and committed chair, as it is the chair that needs to keep the focus for the Working Group on the violations of the children’s rights. The strengths of the human rights organizations such as Amnesty International and Human Rights Watch is that they are independent, that they 711

Save the Children, Can the Powerful Protect? How the UN Security Council needs to shape up to protect children, 2007, p. 2 712 Security Council Report, Update Report No. 2, Children and armed confl ict, 14 July 2008, p. 1, 2 of 3.

The Work of the United Nations on Children and Armed Conflict

have much experience in reporting and that reports come out right away in a situation where violations have taken place. The downside is that they only work on reporting and monitoring violations, and that they do not have the authority to take any action as the Security Council can do. However at the same time, to only end up reporting and monitoring is also a challenge for the UN 1612 MRM process, since the point with the UN is to have direct access to the Security Council where legal action can be taken. If that action is limited and the response tepid, then it only becomes a situation about reporting where violations can continue with impunity. A further challenge of the UN MRM system is that the UN itself is very political, and that the different UN agencies are very concerned about their mandate and whether they can stay on in the respective countries in which they have programmes, which does affect what they will officially report on as if they deem certain information too sensitive they will not mention it. This raises concerns that the reporting becomes compromised from the very beginning. Further the fact that some UN member states do not want to have human rights at the Security Council is a challenge, as with human rights the focus inevitably will be on the individuals and in that context the sovereignty of the government will not be the main concern, but the protection of the individual children in the case of the 1612 MRM process. With regards to where the SC Working Group would go on its first field trip the author suggested that the Working Group go to DRC since the government of the DRC had expressed thoughts at the time that it wanted MONUC and subsequently MONUSCO to leave the country by late 2011, and in order for the Working Group to make sure that the protection of children would be guaranteed, and to make preparations for that. The chair said that they would not go to DRC since the Security Council had just been there. However while the Security Council made a visit to DRC in May 2010 and according to the terms of reference for the visit one part of the purpose of the trip was for the Security Council “to address the situation of internally displaced civilians and to advocate for respect for human rights and international humanitarian law, and for the need to address sexual-violence and child protection issues, bearing in mind the conclusions of the Security Council working group”, still the report from this mission only very briefly brings up the need for the protection of civilians as well as the issue of sexual violence in broad general terms, and makes no specific reference to the situation or protection of children.713 A controversy ensued after a former girl child soldier from Nepal gave an account before the Security Council at its annual meeting on CAAC in 2010. She had been invited by the SRSG-CAAC Radhika Coomaraswamy to speak before the SC, where her name had been changed in order to provide for her safety but 713

Report of the Security Council mission to the Democratic Republic of Congo (13 to 16 May 2010), S/2010/288, 30 June 2010, p. 6-8, Annex 1, Security Council mission to the Democratic Republic of Congo (13 to 16 May 2010): terms of reference B.

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where she spoke in person with no disguise in front of everybody. At the meeting she told the members of the Council about how she at the age of 11 in 2002 had been abducted by the Maoists, and had been forced to carry guns, bombs, supplies and walk long distances, conducted forced labour and how she and the other children were made to undergo “rigorous military training”.714 Both her mother and father had on separate occasions come to rescue her, once her mother was able to bring her home but the Maoists came and took her back with them, and another time her father came to get her but she was not allowed to leave. Life with the Maoists was very challenging and the children were told that if they did not obey or tried to flee they would be killed. After a while she was made section commander even as she had been injured, and during her time with the Maoists she had come to understand that the children were to be in the frontline during the war while the commanders would be in the back giving orders. After the ceasefire in 2004 she first came to a cantonment but went back to her family, however she was stigmatized in the community while her mother could not afford to send her to school so she returned to the cantonment. There she was harassed because she did not want to get married so she went back to her family, but the Maoists came after her and had her return to the cantonment from where she after two days fled to Narayangadh where she was enrolled into a rehabilitation programme and could return to school. She ended her presentation before the Security Council by saying that “the fear of the Maoists still haunts me”. That her fear was very relevant was evident when she returned to Nepal after having given her statement to the Security Council, as five former Maoists combatants who were living at the Shaktikhor Cantonment which is UN supervised came to her home in Chitwan threatening her and her parents by saying that “she might have to face consequences in the future” and the girl said that “[t]he Maoists said to me that I should not have criticised them, and that something bad could happen to me in the future”.715 This case brings up several issues that must be thought through and addressed before any other child gives her or his witness testimony before the Security Council. The young woman’s identity was easily uncovered as a Nepali newspaper, Himal Khabarpatrika, published a photo of her on the front page and wrote on her testimony before the Security Council.716 Since her cover was blown 714 Everything in this section comes from Sita’s story, Silwal, Ekal, Long Journey Home, Former child soldier Sita Tamang’s powerful testimony at the Security Council focused the world’s attention on Nepal’s Maoists, Nepali Times, Issue #510 (09 July 2010- 15 July 2010, www.Nepalitimes.com.np/issue/2010/07/12/Nation/17237/ 715 Silwal, Ekal, Long Journey Home, Former child soldier Sita Tamang’s powerful testimony at the Security Council focused the world’s attention on Nepal’s Maoists, Nepali Times, Issue #510 (09 July 2010- 15 July 2010, www. Nepalitimes.com.np/issue/2010/07/12/Nation/17237/ 716 C.K. Lal, Confl ict of coverage, The case of Sita Tamang shows the media to exercise caution when it comes to covering confl ict-sensitive issues, Op-Ed, Nepali Times,

The Work of the United Nations on Children and Armed Conflict

in such a way, the issue of reporting in conflict-sensitive environments where the government is still weak and does not yet have the capacity to protect its citizen was raised. The journalist C.K. Lal wrote that “[t]ales of victimization may have fascinated the UN Security Council. It did precious little for the cause of truth and reconciliation in a society still struggling to recover from the conflict.”717 While the intent of either Coomaraswamy or the Security Council was naturally not to further put the girl in danger, but to learn from her and about her experiences, this case very clearly shows that giving testimony no matter where it is given is a dangerous matter when neither security nor the rule of law have in full been established in a post-conflict society, and when the peace gained is still fragile. As C.K. Lal mentioned there are still forces within the Nepali society that do not want a peace process to succeed, and that is the context within which this girl who gave her testimony lived.718 While the Security Council is not a court, to come forward as a witness is still a very sensitive issue as it is no small matter that it is the members of the Security Council that will be listening, in the context of the lists of annexes of the SG’s annual reports on CAAC, and that the Security Council can indeed take action, or that the ICC can use the information from these reports and other information such as a witness account to bring charges against individual perpetrators. Furthermore, it is well-known that it is very dangerous in many conflict and post-conflict settings to be a witness and that therefore so many people are reluctant to come forward with their stories, and that journalists and human rights defenders are many times in these settings constantly threatened because of their work. This case also shows the need for the members of the Security Council Working Group on CAAC to make field visits more often where more low-key and confidential testimonies may be given to them. It was the author that brought this situation to the attention of two member state missions of the Security Council Working Group on CAAC, including Mexico, the then chair of the Working Group; this information did not come from within the UN. The chair and the other mission took action right away and were very concerned about the issue. The author also asked the Office of the SRSG-CAAC, and was told that at the time the UN was preparing to visit

07/09/2010, from Issue #510, Nepali Times, Issue #510 (09 July 2010- 15 July 2010), www.nepalitimes.com/issue/2010/07/09/FourthEstate/17236 717 C.K. Lal, Confl ict of coverage, The case of Sita Tamang shows the media to exercise caution when it comes to covering confl ict-sensitive issues, Op-Ed, Nepali Times, 07/09/2010, from Issue #510, Nepali Times, Issue #510 (09 July 2010- 15 July 2010), www.nepalitimes.com/issue/2010/07/09/FourthEstate/17236 718 C.K. Lal, Confl ict of coverage, The case of Sita Tamang shows the media to exercise caution when it comes to covering confl ict-sensitive issues, Op-Ed, Nepali Times, 07/09/2010, from Issue #510, Nepali Times, Issue #510 (09 July 2010- 15 July 2010), www.nepalitimes.com/issue/2010/07/09/FourthEstate/17236

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the girl for the third time as they had been made aware of her situation after her presentation. While there are many challenges with the 1612 MRM process, including the role of the Security Council, the strength of the whole process is that the issue of children and armed conflict is firmly placed on the agenda of the Council and that the Council has the authority to act. CAAC is also being mainstreamed within the UN as an organization, and there is a great acknowledgement of the need to work with non-governmental organizations and the civilian society. However, the issue of CAAC should for instance not get side-lined by the current focus on the thematic issue of protection of civilians as the situation for children needs to be differentiated.719 The view of the child needs to be continuously developed so that child protection becomes a priority in reality and that accountability for actions taken or not taken as well as the responsibility for children in armed conflict be firmly established and implemented.

719 In the context of that today’s armed conflicts are mainly internal and that the main targets are children and other civilians, the UN Security Council adopted its fi rst resolution on the protection of civilians in armed conflict with resolution 1265 in 1999. The resolution addressed all parties to an armed confl ict, which include both state and non-state actors. It specifically notes that civilians constitute the majority of casualties as well as that they are being directly targeted by the different armed actors in armed conflicts. This resolution was followed by Security Council resolution 1296 in 2000, and they constitute the foundation for the Security Council’s work on the protection of civilians in armed conflict. These resolutions determined what “the areas of concern” were to be and were also identifying the actions to be taken by the UN, UN agencies and its member states as pertaining to the protection of civilians. There is currently much attention given to the thematic issue of “protection of civilians” at the UN including at the Security Council, and it is going to be interesting to see what impact this increased attention will have on the protection of children in armed conflict: This information is taken from United Nations, Security Council, Resolution 1265, S/RES/1265 (1999), 17 September 1999, Security Council, Resolution S/RES/1296 (2000), 19 April 2000, and United Nations, Security Council, Report of the Secretary-General on the protection of civilians in armed conflict, 28 November 2005, S/2005/740, para. 2, p. 1 and A. para. 33-34, p. 10.

12.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Voice at the US State Department in 2009: “Why should we delay security in Afghanistan for the rights of women?”, and another voice in 2009: “I cannot understand how rape and sexual violence of women in armed conflict can be an issue of international peace and security?”

12.1.

Introduction

Sexual violence is notoriously widespread in conflict areas and women and girls are especially exposed to this, and the above-mentioned quotes reflect that the concepts of “security” and “peace” have been very narrowly defined over the years, where a very limited perspective has been applied by a small group of people, mainly men, on what these concepts mean for other people. Security has been defined more in military terms and peace as a cessation of hostilities. It is necessary that an understanding develops regarding the fact that exclusion based on gender, and as will be seen, gender-based violence will have consequences for how security, peace and ultimately reconciliation will be constructed and not only by whom but for whom. Sexual violence is or has been of a serious concern in for instance Burundi, Iraq, Haiti, Darfur/Sudan, El Salvador, Guatemala, the Central African Republic, Liberia, Sierra Leone, Kosovo, Bosnia-Hercegovina, Rwanda, Chechnya, Kashmir, Timor-Leste, Colombia, Occupied Palestinian Territories, Kenya and recently there have been increased gender-based and sexual violence in Nepal, Côte d’Ivoire, Somalia and Afghanistan.1 These countries 1

Some sources but this is not an exclusive list: United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009; IRIN, Syria: Fears over gender-based violence in Iraqi community, 6 April 2009; IRIN, OPT: ‘Femicide’ on the rise in conflict zone, 7 March 2007; The Guatemala Human Rights Commission/USA: Guatemala’s Femicide Law: Progress Against Impunity?, 2009; Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007; Women’s Centre for Legal Aid and Counseling, WCLAC, Heading Towards Achieving Hope, 2005 An-

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demonstrate that all regions of the world are affected by sexual violence and that not much protection of women and girls in particular exists. The question “Why should we delay security for Afghanistan for the rights of women?” shows that it is not possible any longer to continue to disregard the security and rights of women under the pretext of establishing an ill-defined security for all. It is necessary to fundamentally rethink the concepts of security and stability, and that it simply does not work to only have a few people defi ning security for others and on top of that being able to back it up with military might without any consultation with the people who will be the most affected by those actions and then not providing protection to the civilians. In the context of the scale and magnitude of gender-based violence committed in today’s armed conflicts, where rape and sexual violence against especially women and girls have reached unprecedented levels, as the sexual violence perpetrated is often an organized, targeted and highly systematic approach, together with the continuous political, civil, economic, social and cultural discrimination of women and girls, it is necessary to question: Why, in spite of the wide-ranging knowledge that we have about the crimes being committed in armed conflicts and the continuous discrimination of women and girls, has rape and sexual violence have been allowed to escalate to the extent that it has? Some of the violence committed in today’s conflicts is so damaging that the consequence is that the woman can no longer have children, or that young girls’ reproductive organs have been so damaged that they will not be able to bear children as adult women, and this violence is in many cases committed with the intent to destroy the girl’s or the woman’s ability to have children. It is a deliberate strategy to destroy a woman’s ability to give life, and it is an attack on life itself. With regards to rape and sexual violence in armed conflict we need to ask ourselves what this violence really represents, as well as what the lack of response at the national, regional and international level represents. 12.2.

The Development of Women’s Rights in Armed Conflict and Rape and Sexual Violence Committed Against Women in Armed Conflict

Violence against women and children in armed conflicts is directly linked to the role and position of women and children in our societies.2 Regarding the scale and magnitude of the rape and sexual violence that is being committed against women and girls in all of today’s conflicts, it has become crucial to discuss vio-

2

nual Report, Executive Summary; Human Rights Watch, Women’s Human Rights, Women in conflict and refugees, the World Report 2001, www.hrw.org/legacy/ wr2k1/women/women3.html Nilsson, A-C, Violence against women and children in confl ict and in peace, Lecture at Women’s Summer School, Subotica, Vojvodina, August 4, 2001, Unpublished paper

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

lence against women in armed conflicts not alone but also in the context of the role of women in our societies, which is also demonstrated by evidence from extensive research that reveals “that women’s access to resources, including education, paid work, credit, land, technology and other productive assets, have a far stronger impact on child survival, welfare and education than similar resources in men’s hands”.3 Many conflict countries before war erupts are enduring poor governance, weak state institutions, corruption, impunity, a culture of violence and different forms of discrimination and exclusion (gender, ethnic, religious). Women in some contexts experience dual discrimination in that they experience discrimination as a group because they are women and in addition they are being discriminated against and targeted because they belong to for instance a certain ethnic group or clan.4 In some countries neither rape nor domestic violence have been identified as crimes and traditionally rape and sexual violence have been considered to be within the private sphere, and in this context it is relevant to underline how violence against women, including domestic violence, is viewed by society. Abuses such as forced marriages or trafficking have not been treated as crimes in many countries, and by 2001 marital rape was prohibited in law in 27 countries alone.5 That changing attitudes can take a long time is shown in DRC where the new 2006 law on sexual violence is very comprehensive, but it does not make marital rape an offense.6 In many countries there is little knowledge about human rights in general, and neither women, men nor children are aware of their rights. Also, domestic violence is so common in some countries that some women do not think that their husband or boyfriend loves them if he does not hit them. They have internalized the violence to such an extent that they view domestic violence to be a sign of love and care. Several countries persist in having legislation, customs and practices that are discriminatory against women, for instance with regards to “access to land,

3

4

5

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Smith and others, 2003, Quisumbing, 2003 in United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women, 2009 World Survey on the Role of Women in Development, Women’s Control over Economic Resources and Access to Financial Resources, including Microfinance, p. 7 See for instance Nilsson, A-C, Violence against women and children in confl ict and in peace, Lecture at Women’s Summer School, Subotica, Vojvodina, August 4, 2001, Unpublished paper On laws against marital rape making reference to a report by the NGO Change, Amnesty International, Broken bodies, shattered minds – torture of women worldwide, March 6, 2001 (ACT 40/003/2001), p. 26 Peterman, A., Palermo, T., Bredencamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vol. 101, No. 6, p. 1066

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housing, property and other productive resources”.7 Many women have not much influence over decisions regarding their households, including decisions on not only their children’s health and well-being but their own.8 As the authors of the 2009 World Survey on the Role of Women in Development argue any “[l]egislative change has to be accompanied by advocacy and training for all key stakeholders”, and that “[r]ecognizing and protecting existing communal rights, and building on progressive customary law is also important in order to ensure access by poor women to productive resources”.9 Very few women or men who are poor and come from rural areas or urban slums have access to financial services, and such access for women is even more constrained due to “legal, regulatory, institutional and socio-cultural barriers”.10 While microfinance organizations have been successful in reaching poorer women, they still have only been able to reach a limited number of women who need financial services, as the extremely poor are most often ignored.11 Women remain “underrepresented” in not only political decision-making but also in economic decision-making in public life at national levels.12 With regards to the situation for women and children in armed conflict this economic underrepresentation, which is also true at the international level, has consequences for the lack of funding for women and children and especially for the security of women and girls. A research report by the World Bank in 2001, “Endangering Development – Through Gender Equality in Rights, Resources, and Voice,” found that in terms of societies’ ability to develop their countries and to reduce poverty, societies pay a high price by discriminating people by gender.13 The report showed the 7

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12 13

United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 2, 6, 84 United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 6 United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 84 United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 84 United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 57, 60: The extremely poor are “the bottom 10-50 per cent of the population below the poverty line, p. 60. United Nations, Department of Economic and Social Affairs, Division for the Advancement of Women 2009 World Survey on the Role of Women in Development, p. 23 The World Bank, Engendering Development – Through Gender Equality in Rights, Resources, and Voice, A Policy Research Report by the World Bank, January 2001, Summary, p. 1, www.worldbank.org

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

importance of states beginning to treat gender equality as “a core development issue” and “a development objective in its own right”, because gender equality has come to be recognized as improving the growth capacity of nations, reducing poverty and making governance more efficient.14 The report showed that while “women and children bear the largest and most direct costs” of the widespread inequalities in terms of having and controlling resources, economic opportunities, access to power and having a political voice, the costs of these inequalities are being born by the societies at large, thus in the end affecting and “harming” everybody.15 These findings ought to get states to realize the necessity to treat gender equality as an integral part of development, and not as an isolated issue. Gender-based violence became increasingly acknowledged as both a human rights issue and a public health issue.16 At the “Symposium 2001, Gender Violence, Health, and Rights in the Americas” where these issues were addressed, as was importantly noted in the final document of the Symposium: “Addressing GV [gender-based violence] as a public health problem enables the development of interventions from a collective multidimensional approach – not just as an individual problem – focusing on the root causes, risk factors and the consequences for health and development.”17As an example a study from 1994 in Chile showed that there was a five times higher risk for women while pregnant to have complications if they lived in those parts of the country that experienced political and social violence.18 Violence against women in the family was recognized at the 1985 UN Women’s Conference in Nairobi to be an obstacle to peace, which was the first 14

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17

18

The World Bank, Engendering Development – Through Gender Equality in Rights, Resources, and Voice, A Policy Research Report by the World Bank, January 2001, Summary, p. 1, www.worldbank.org The World Bank, Engendering Development – Through Gender Equality in Rights, Resources, and Voice, A Policy Research Report by the World Bank, January 2001, Summary, p. 1, www.worldbank.org The Inter-American Commission of Women, “Symposium 2001, Gender Violence, Health, and Rights in the Americas, 4-7 June, 2001, Cancun, Mexico”, p. 1 of 3. This symposium was part of the inter-agency campaign “A life free of violence: It is our right”, and had the purpose of “positioning gender-based violence on the public agenda as a human rights and public health issue”, www.oas.org/cim/English/ Symposium2001.htm.; see also UNDP Inter-Agency Campaign “A life free of violence: It’s our right”, Documents, Health: The Risks of Gender-Based Violence, 2001, http://freeofviolence.org/genderbased.htm UNFPA, UNIFEM, UNDP, UNICEF, Pan-American Health Organization, Latin American and Caribbean Women’s Network, ISIS International, CIM, Center for Research in Women’s Health, Symposium 2001: Gender Violence, Health and Rights in the Americas, Final Report, An Interagency Initiative for the Region, June 4-7, 2001, Cancun, Quintana Roo-Mexico, p. 14 UNDP Against Violence: Documents, Health: The Risks of Gender-Based Violence, 2001, http://freeofviolence.org/genderbased.htm

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time.19 In the Conference’s declaration the governments were requested to make “public awareness on violence against women as a social phenomenon” a priority.20 Domestic violence against women is being committed globally in all countries of the world with what Amnesty International has termed “striking” similarities.21 It was not until 1993 at the Vienna World Conference on Human Rights that women’s rights were finally acknowledged as human rights, and violence against women and girls was recognized to be a violation of their rights.22 Later in 1993 the UN General Assembly adopted the Declaration on the Elimination of Violence against Women where reference was made to the Nairobi conference that violence against women is an obstacle to peace, and that among other groups female children and women in situations of armed conflict “are especially vulnerable to violence”.23 The adoption of the Declaration was significant as Askin has noted violence against women was here acknowledged as being “socially constructed and intricately related to power, and that violence against women has been and continues to be an immediate impediment to obtaining fundamental 19

20

21 22

23

UNDP, “Gender-Based Violence is an Obstacle to Development”, International Day against Violence Against Women, 2001, p. 2 of 5, UNDP, http://freeofviolence.org/ genderbased.htm Binstock (1997), in “Gender-Based Violence is an Obstacle to Development”, International Day against Violence Against Women, 2001, p. 2 of 5, UNDP, http://freeofviolence.org/genderbased.htm Amnesty International, “Broken bodies, shattered minds – the torture of women worldwide”, March 8, 2001, (ACT 40/001/2001), p. 8, www.Amnesty.org UNDP Against Violence: History, Timeline: Progress against gender violence, 2001, http://freeofviolence.org/genderbased.htm; and The Vienna Declaration and Programme of Action, A/CONF.157/23, 25 June 1993, para. 18: “The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. Gender-based violence and all forms of sexual harassment and exploitation, including those resulting from cultural prejudice and international trafficking, are incompatible with the dignity and worth of the human person, and must be eliminated. This can be achieved by legal measures and through national action and international cooperation in such fields as economic and social development, education, safe maternity and health care, and social support. […]” General Assembly resolution adopting the Declaration on the Elimination of Violence Against Women, A/RES/48/104, 20 December 1993: The resolution stated that the General Assembly was “Concerned that violence against women is an obstacle to the achievement of equality, development and peace, as recognized in the Nairobi Forward-looking Strategies for the Advancement of Women”, From the Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace, Nairobi, 15-26 July 1985

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

rights and freedoms, domestically and internationally, regardless of the presence of war”.24 Of interest is that marital rape was not made part of the resolution as a number of delegates maintained that marital rape did not constitute a crime in several member states.25 Further, in 1994 the UN Commission on Human Rights appointed a Special Rapporteur on violence against women.26 In the Beijing Declaration and Platform of Action of 1995 at the Fourth World Conference on Women it was again confirmed that “[v]iolence against women is an obstacle to the achievement of the objectives of equality, development and peace”.27 Furthermore in December 1995 the UN General Assembly adopted its first resolution on “The girl child”, in which reference was made to the Beijing Platform for Action of 1995 regarding “that discrimination against the girl child and the violation of the rights of the girl child was identified as a critical area of concern …, and that the advancement and empowerment of women throughout their life-cycle must begin with the girl child”.28 Further in this 50/154 resolution on the girl child the General Assembly urged “all States to eliminate all forms of discrimination against the girl child and to eliminate the violation of the human rights of all children, paying particular attention to the obstacles faced by the girl child”, and further urged “all States to eliminate all forms of violence against

24

25

26

27

28

Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 237-238: As it was stated in the Preamble of the Declaration: Recognizing that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position”; General Assembly resolution adopting the Declaration on the Elimination of Violence Against Women, A/RES/48/104, 20 December 1993 Footnote 784 in Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 236: making reference to Chicago Tribune, May 8, 1995, Marital Rape Kept Out of UN Resolution. United Nations Commission on Human Rights, Resolution 1994/45, 4 March, 1994, Ms. Radhika Coomaraswamy now the SRSG-CAAC was the first Rapporteur between 1994-2003, then Dr. Yakin Ertürk from 2003-2009, and at the time of writing it is Ms. Rashida Manjoo, from 2009 and onwards, Office of the High Commissioner for Human Rights, Special Rapporteur on violence against women, its causes and consequences, http://www.ochcr.org/EN/Issues/Vomen /SRWomen/Pages/SRWomenIndex.aspx, accessed 2011-10-13 See D. Violence against women, para. 112: the Beijing Declaration and Platform for Action was adopted by the Fourth World Conference on Women at the 16th meeting, on September 15, 1995 in Beijing, UN Doc. A/CONF.177/20(1995). General Assembly, A/RES/50/154, 50/154. The girl child, 21 December 1995, Preamble; and Binstock (1997), in “Gender-Based Violence is an Obstacle to Development”, International Day against Violence Against Women, 2001, p. 2 of 5, UNDP, http:// freeofviolence.org/genderbased.htm

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children, in particular the girl child”.29 At the same session the General Assembly also adopted resolution 50/167 on “Traffic in women and girls”, in which reference was made to the Vienna Declaration and Programme of Action of 1993 which “affirmed the human rights of women and the girl child as an alienable, integral and indivisible part of universal human rights”, and in which the General Assembly also concurred with the Platform for Action of Beijing of 1995 “that the effective suppression of trafficking in women and girls for the sex trade is a matter of pressing international concern”.30 Here the General Assembly “appealed” to the governments that they would “take appropriate measures to address the root factors, including external factors, that encourage trafficking in women and girls for prostitution and other forms of commercialized sex, forced marriages and forced labour, so as to eliminate trafficking in women, including strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing perpetrators, through both criminal and civil measures”.31 The Special Rapporteur on violence against women especially briefed the Security Council on the situation of girls in armed conflict in March 2002, and the Security Council discussed in its open debate on women and peace and security in October 2002 the situation for war-affected girls once more.32 In the 2005 United Nations World Summit Outcome Document, the UN member states stressed that women have an important role to play in preventing conflicts, in peace resolution and peace-building, and reaffirmed their commitment to the implementation of SC resolution 1325 (2000). The member states also “strongly condemn all violations of the human rights of women and girls in situations of armed conflict and the use of sexual exploitation, violence and abuse, and we commit ourselves to elaborating and implementing strategies to report on, prevent and punish gender-based violence”.33

29 30 31 32 33

General Assembly, A/RES/50/154, 50/154. The girl child, 21 December 1995, para. 1 and 5 General Assembly, A/RES/50/167, 50/167. Traffic in women and girls, 22 December 1995, Preamble General Assembly, A/RES/50/167, 50/167. Traffic in women and girls, 22 December 1995, para. 2 Report of the Secretary-General on children and armed confl ict, S/2002/1299, 26 November 2002, para. 7 General Assembly, A/RES/60/1, Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, 24 October 2005, para. 116

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

12.3.

Gender Equality and Empowerment at the United Nations It would be naive to expect an organization which has historically been generally apathetic to women’s issues to ardently pursue gender reforms, even when discrimination is thoroughly incompatible with fundamental human rights norms.34

The year 2009 was the year of the 30th anniversary of the Convention on the Elimination of All Forms of Discrimination against Women and 2010 the tenth anniversary of United Nations Security Council resolution 1325. The Women’s Convention was ground-breaking as it acknowledged that women because of the discrimination that women have long endured because they are women needed a convention that would specifically identify and protect the human rights that are of particular concern to women. The Women’s Convention was adopted on 18 December 1979 and entered into force 3 September 1981. The United Nations Security Council resolution 1325 (2000) was also ground-breaking as women’s specific situation in armed conflict was being recognized at the highest level of the UN at the Security Council and that it was acknowledged that women have a role to play in the prevention of armed conflicts, in the resolution of conflicts as well as in peace building in the post confl ict period, a role that had been disregarded up until then. The UN General Assembly in its resolution 64/289 of July 2010 took the decision to restructure the UN’s organization on gender equality and empowerment of women by establishing the new body “UN Women”, which is the United Nations Entity for Gender Equality and the Empowerment of Women.35 Ms. Michelle Bachelet, former President of Chile, is the first Executive Director of UN Women, and she is also Under-Secretary-General of the United Nations.36 The UN Women brings together four former UN entities:37 – Division for the Advancement of Women (DAW); – International Research and Training Institute for the Advancement of Women (INSTRAW); – Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI); – United Nations Development Fund for Women (UNIFEM).

34 35 36 37

Referring to the United Nations, Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 236 General Assembly, Resolution adopted by the General Assembly, 64/289. Systemwide coherence, A/RES/64/289, 2 July 2010, para. 49 UN Women, Directorate, http://www.unwomen.org/about-us/directorate, 2011 UN Women, About UN Women, http://www.unwomen.org/about-us/about-unwomen; UNIFEM and INSTRAW were dissolved by the General Assembly resolution A/RES/64/289, 2 July 2010, para. 86 and 87.

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Some of the major challenges with regard to the UN’s previous work on gender equality and empowerment have been lack of funding and that the UN has not had one coherent entity that has taken the lead to promote these issues.38 Therefore the UN Women is to bring about “the elimination of discrimination against women and girls; empowerment of women; and the achievement of equality between women and men as partners and beneficiaries of development, human rights, humanitarian action and peace and security”.39 The UN Women has as its most important roles:40 – –

–

To support inter-governmental bodies, such as the Commission on the Status of Women, in their formulation of policies, global standards and norms; To help Member States to implement these standards, standing ready to provide suitable technical and financial support to those countries that request it, and to forge effective partnerships with civil society; To hold the UN system accountable for its own commitments on gender equality, including regular monitoring of system-wide progress.

The Convention on the Elimination of All Forms of Discrimination Against Women is brought up here as it is necessary to discuss these issues in the context of the widespread sexual violence that is being committed against the age group 15 and 24 years old girls/young women. As this age group is many times an invisible group, while they at the same time often are among the most vulnerable to be exposed to sexual violence, the intersection between being a girl and adult woman needs to be acknowledged in this context. When the girls turn 18 years they are to be treated as adults, and among other documents CEDAW should then be applied, but it seldom is, and they should have a voice. The invisibility and exposure to violence of this age group also needs to be seen in the context that in the post-conflict phase sexual violence many times continue and this age group remains among the most exposed.

38 39 40

UN Women, About UN Women, http://www.unwomen.org/about-us/about-unwomen/, 2011 UN Women, About UN Women, http://www.unwomen.org/about-us/about-unwomen/, 2011 UN Women, About UN Women, http://www.unwomen.org/about-us/about-unwomen/, 2011

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

12.3.1.

The Convention on the Elimination of All Forms of Discrimination Against Women Gender discrimination is so firmly imbedded in the history of humanity that it is often not perceived as discrimination. – Katarina Tomaševski 41 You can achieve more, can get more, but because of your little minds, you cannot get what you are expecting to get. – President Moi of Kenya, at the Conference of East African Women Parliamentarians, Nairobi, 6 March 2001.42

The states parties to the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 (entered into force in 1981) have agreed to a definition of the term “discrimination against women” which is explicitly provided for in Article 1 of the Convention and reads as follows:43 For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

This definition is widely accepted across continents and cultures as 187 of all the member states of the United Nations are states parties to it.44 Of importance are the terms “the effect or purpose” of Article 1, which make clear that there needs to be no intent behind an act of discrimination for discrimination to occur.45 It is enough that if discrimination becomes the consequence of the commitment of a certain act, that act constitutes a violation of the Convention. States parties to the Convention which have been in armed conflict or which are currently expe41

42

43

44 45

Katarina Tomaševski, Women and Human Rights 44 (1993), in Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 204 Nasong’o, S. W., and Ayot, T. O., Women in Kenya’s Politics of Transition and Democratisation”, Chapter 6, p. 164-196, in Godwin, R. Murunga, Shadrack, W. Nasong’o, Eds, Kenya, The Struggle for Democracy, 2007, p. 182 Convention on the Elimination of All Forms of Discrimination against Women (the Women’s Convention), adopted Dec. 18, 1979, entered into force September 3, 1981, GA Res 34/180, 34 UN GAOR Sup. (No. 46) 193, UN Doc A/RES/34/180 (1980). United Nations, As of October 27, 2011, http://treaties.un.org Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 232

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riencing armed conflicts or are in a post-conflict environment where rape and sexual violence committed against women have been or are widespread include Afghanistan (2003), Burundi (1992), Colombia (1982), DRC-Congo (1986), Iraq (1986), Kenya (1984), Liberia (1984), Rwanda (1981), Uganda (1985), El Salvador (1981), Guatemala (1982) and Sierra Leone (1988).46 The US signed the Convention in 1980 but has not yet ratified it, nor has Somalia. As the governments are legally bound by the Women’s Convention, they are to take help of the Convention both in the writing process of new gender sensitive laws as well as in the interpretation of laws which require a gender perspective. During transition periods, that is periods when a country is going from an armed conflict situation to peace, or from an authoritarian regime to democratic governance, these are key periods of opportunity to strengthen and introduce new gender-based legislation as well as establishing new state institutions with a gender sensitive perspective. Kenya has recently gone through such a transition period with the adoption of a new constitution, where the draft for a new constitution was presented to the public for input in November 2009, as well as with the establishment of its Truth and Reconciliation Commission on 23 October 2008 by an Act of Parliament.47 The draft on the new Kenyan Constitution proposed that one-third of all the seats in the Kenyan Parliament and Senate be allotted to women.48 In the new Constitution, which President Kibaki promulgated to be in effect from 27 August 2010, it is stipulated that the National Assembly shall be constituted of 290 members of which 47 are to be women (Article 97 (a) and (b)), and that the Senate is to be constituted of 47 members of which 16 are to be women (Article 98 (a) and (b)).49 In Kenya political violence, gender biases and stereotyping have been identified as the main barriers to women becoming politically active.50 In 2002 the League of Kenya Women Voters reported that for women the major reasons that hindered women from running for political office were insecurity and lack of financial ability.51 The use of sexist and derogative language of women with the intention to have their public image and social standing undermined have been very common in Kenya, where there are several examples of 46 47 48 49 50

51

The year the specific country has ratified the Women’s Convention has been noted. International Center for Transitional Justice, Kenya, Background, www.ictj.org/en/ where/region1/648.html?, accessed January 27, 2010 Sunday Nation, Constitution, ‘Draft law gives women big boost,’ and ‘Draft a boon for women,’ Nairobi, November 22, 2009 The Constitution of Kenya, 2010, National Council for Law Reporting with the Authority of the Attorney General, www.kenyalaw.org, accessed October 17, 2011 Shadrack Wanjala Nasong’o and Theodora O. Ayot, Women in Kenya’s Politics of Transition and Democratisation”, Chapter 6, p. 164-196, in Godwin, R. Murunga and Shadrack, W. Nasong’o, Eds., Kenya, The Struggle for Democracy, 2007 Shadrack Wanjala Nasong’o and Theodora O. Ayot, Women in Kenya’s Politics of Transition and Democratisation”, Chapter 6, p. 164-196, in Godwin, R. Murunga and Shadrack, W. Nasong’o, Eds., Kenya, The Struggle for Democracy, 2007

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

women political candidates who have been harassed as an attempt to psychologically traumatize women in general so that they will not run for political office.52 In the process of establishing a new constitution, which often also leads to the establishment of new state institutions, it is crucial for the government to apply its legal obligations according to the Women’s Convention. A country as a state party to the Women’s Convention needs to include during such a transitional period the participation of women into the process of establishing the new constitution in order to be able to achieve its obligations under the Women’s Convention as it is stated in Article 2 of the Convention: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

Furthermore, during such transitional periods it is also of crucial importance that states parties to the Convention, as they are legally obliged to do, also apply Article 2(c) of the Women’s Convention, which states that the states parties are to undertake: (c)

To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

In order to remedy the underlying causes of rape and gender-based violence in a specific country, such as the status and the inferior view of women in a society and the lack of participation of women and the existing gender-based discrimination, the state party during a transitional period is also obliged to fulfil its obligations according to Article 5(a) of the Women’s Convention, which states that:53

52

53

Edna Sang a woman parliamentary candidate has been one such example, and the late Nobel laureate Wangari Maathai’s humanity and personhood were attacked by Moi in 1989, in Nasong’o, S. W., and Ayot, T. O., Women in Kenya’s Politics of Transition and Democratisation”, Chapter 6, p. 164-196, in Godwin, R. Murunga and Shadrack, W. Nasong’o, Eds., Kenya, The Struggle for Democracy, 2007 Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women reads in its entirety as follows: States Parties shall take all appropriate measures: (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other

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States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

In terms of women’s standing in political and public life, states parties to the Women’s Convention are also under the obligation in Article 7 to the Convention to ensure the rights to vote and to hold political office at all levels of government for women as Article 7 states that: States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.

Representatives of the international community participating in peace negotiations or in transitional periods in the constitutional process need to be aware of not only governments but also non-state actors that have no concept of women’s rights but which just to the contrary act to limit the space for women to the family sphere and enforce this with the use of force. This shows the limitation of the current traditional approach applied by the international community in peace negotiations, that is to only include the combatant actors who have been the perpetrators of rape and sexual violence, governmental and non-state actors, and whose members have no concept of gender equality, of which some as the extremist fundamentalists instead work to discriminate women in the name of religion, resulting in no remedy for women and girls and very limited political, civil or social progress not only for women but for the societies as a whole. To exclude women from being participants in the formal peace negotiations reinforces the role of women as victims and being powerless and contributes to the on-going impunity and lack of respect and security for women. This approach also reflects

(b)

practices which are based on the idea of the inferiority or the superiority of either o f the sexes or on stereotyped roles for men and women. To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

the general lack of awareness of gender discrimination as well as the acceptance of it at national and international levels, which in turn also contributes to the exposure and utter lack of security for women and girls in armed conflict situations. 12.3.1.1.

The Definition of “Violence Against Women” and the Convention on the Elimination of All Forms of Discrimination Against Women

The states parties have according to the Convention on the Elimination of All Forms of Discrimination against Women also the responsibility for acts that private individuals and/or private organizations carry out discriminatorily and not only for such acts carried out by its state agents or state authorities, which encompass rape in armed conflict as well as marital rape and domestic violence.54 The states parties to the Women’s Convention not only did not provide a definition on “violence”, in fact they did not include the term “violence” in the Convention at all.55 It was not until 1992 that the UN Committee on the Elimination of Discrimination against Women (CEDAW) in its General Recommendation 19 specifically dealt with “violence against women” and how the Convention should be interpreted in relation to violence against women.56 CEDAW stipulated in General Recommendation 19 that first of all:57 Paragraph 1: Gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.

Then CEDAW continues with describing what gender-based violence consists of in both peacetime and in war: Paragraph 6: The Convention in article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based vio-

54 55 56 57

Amnesty International “Claiming women’s rights: the Optional Protocol to the UN Women’s Convention, March 1, 2001, IOR 51/001/2001, p. 4 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 233 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 233 General Recommendation No. 19 (11th session, 1992), made by the Committee on the Elimination of Discrimination Against Women, www.un.org/womenwatch/daw/ cedaw/recommendations/recomm.htm, accessed December 2009, and Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 233

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lence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.

In paragraph 7 of Recommendation 19, CEDAW makes specific reference to the protection of women’s rights in situations of international and internal conflicts: Paragraph 7: Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention. These rights and freedoms include: ... (c) The right to equal protection according to humanitarian norms in time of international or internal armed conflict.

In paragraph 16 of the Recommendation 19, CEDAW points out that protective measures should be applied and that punitive measures should be imposed for the violence committed against women during armed conflicts: Paragraph 16: Wars, armed confl icts and the occupation of territories often lead to increased prostitution, trafficking in women and sexual assault of women, which require specific protective and punitive measures.

CEDAW provides that governments have a legal obligation to establish and enforce laws protecting and respecting women against rape and sexual violence including in the family sphere, and that judicial and law enforcement personnel need to be given appropriate gender-sensitive training so as to properly enforce these laws: Paragraph 24 (b): States Parties should ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Appropriate protective and support services should be provided for victims. Gender-sensitive training of judicial and law enforcement officers and other public officials are essential for the effective implementation of the [Women’s] Convention.

While CEDAW’s interpretation of the Women’s Convention with regards to violence against women was a total prohibition of all forms of violence against women, it is important to note that CEDAW’s recommendations are not legally binding upon the states parties, as they are only to be guiding the states parties

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

in their implementation of the Women’s Convention.58 However, the Women’s Convention as a treaty is a legally binding instrument on the states parties, but it is also true that the Women’s Convention “has more reservations to it than most international human rights instruments”.59 The African Charter on Human and People’s Rights (ACHPR) only provides very limited protection of the rights of women and children, which it has been criticized for, and merely addresses the rights of women and children in one provision in its Article 18.60 Article 18(3) of the ACHPR stipulates that the obligation of the states is: That the State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the women and the child as stipulated in international declarations and conventions.

As Chirwa argues the problem with this article is that it is to be found within the article of the Charter that addresses the issue of protection of the family, and in this context there are concerns that within the family some children and women in Africa are exposed to grave violations of human rights and that the family unit can be of an oppressive character.61 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) of 2003 applies as previously noted also to girls under the age of 18 years, as the Protocol defines “Women” as “persons of female gender, including girls” (Article 1(k)). Further the Maputo Protocol defines “violence against women” in its Article 1(j) as: all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflicts or war.

58 59 60 61

Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 233-234 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. 234-235 Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 96 Chirwa, D., M., Combating child poverty: the role of economic, social and cultural rights, in Sloth-Nielsen, J., Ed., Children’s rights in Africa, a legal perspective, 2008, p. 96

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Here women and girls are protected from violence in all areas where they can be exposed to violence including in the family, community as well as by the state.62 Article 3 of the Maputo Protocol gives additional strength to this provision as it gives women a right to dignity, and provides protection from “all forms of violence, particularly sexual and verbal violence”.63 As Banda explains the bar “is set very high” for the responsibility of states, as for instance in Article 4 of the Maputo Protocol the states have the obligation to punish the perpetrators for such violence including private actors.64 As is stipulated in Article 4 of the Maputo Protocol:65 ...

2.

States Parties shall take appropriate and effective measures to: a)

... e)

enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public; punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims;

In the context that women and children are the main victims of armed conflicts, Article 10 of the Maputo Protocol provides for the right to peace, and stipulates that “[w]omen have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace” (Article 10(1)), a provision into which the UN resolution 1325 has been implemented, and provides for that women have the right to participate in conflict prevention, post-conflict reconstruction and rehabilitation at local, national, regional, continental and international levels (Article 10(2)(b) and (e)).66 Given that women play a very strong role in grass-root organizations, many times providing the necessary help and support to communities experiencing war, Article 10 further acknowledges that refugee women

62 63

64 65 66

Banda, F., Blazing a trail: The African Protocol on Women’s Rights comes into force, Journal of African Law, 50, 1 (2006), 72-84, p. 79 Banda, F., Blazing a trail: The African Protocol on Women’s Rights comes into force, Journal of African Law, 50, 1 (2006), 72-84, p. 79; Protocol to the African Charter on human and peoples’ rights on the rights of women in Africa, Article 3 (4) Banda, F., Blazing a trail: The African Protocol on Women’s Rights comes into force, Journal of African Law, 50, 1 (2006), 72-84, p. 79 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003, Article 4 Banda, F., Blazing a trail: The African Protocol on Women’s Rights comes into force, Journal of African Law, 50, 1 (2006), 72-84, p. 81

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

have special needs, which is the first time that an international instrument does this.67 In Article 11 of the Maputo Protocol, the protection of women, including girls, is specifically provided for in situations of armed conflict, where the obligation of states to bring perpetrators for rape and sexual violence to justice is unequivocally included (Article 11(3)): Protection of Women in Armed Conflicts 1. States Parties undertake to respect and ensure respect for the rules of international humanitarian law applicable in armed conflict situations, which affect the population, particularly women. 2. States Parties shall, in accordance with the obligations incumbent upon them under international humanitarian law, protect civilians including women, irrespective of the population to which they belong, in the event of armed conflict. 3. States Parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction. 4. States Parties shall take all necessary measures to ensure that no child, especially girls under 18 years of age, take a direct part in hostilities and that no child is recruited as a soldier.

States parties thus also have the obligation to take “necessary measures” (not defined) that guarantee that children, particularly girls, are not recruited or used as child soldiers (Article 11(4)). The first regional convention on violence against women was the InterAmerican Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem Do Para”), which was adopted in 1994.68 The Belem do Para Convention, which is legally binding upon the states parties, defines violence against women in its Article 2: Violence against women shall be understood to include physical, sexual, and psychological violence:

67 68

Banda, F., Blazing a trail: The African Protocol on Women’s Rights comes into force, Journal of African Law, 50, 1 (2006), 72-84, p. 81 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Convention of Belem Do Para”) adopted 9 June, 1994, entered into force 5 March 1995 in Accordance with Article 21 of the Convention, on the Thirtieth Day from the Date of Deposit of the Second Instrument of Ratification, www.oas.org/juridico/english/sigs/a-61.html

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a.

b.

c.

that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, battery and sexual abuse; that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and that is perpetrated or condoned by the state or its agents regardless of where it occurs.

It was the Inter-American Commission of Women (CIM) that initiated violence against women as an issue and that wrote this Convention.69 The Convention defines violence against women as a violation of human rights, and it “defines violence in the public and private sphere”, as Article 3 of the Convention states that “[e]very woman has the right to be free from violence in both the public and private spheres”.70 Further, Article 6 states: The right of every woman to be free from violence, includes, among others: a. The right of women to be free from all forms of discrimination; and b. The right of women to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority or subordination.

CIM was established in 1928, and among other tasks has a reporting function within the OAS as it is “[t]o report to the General Assembly of the OAS on the work of CIM, as well as on all aspects of the status of women in the Hemisphere, on progress made in terms of women’s rights and gender equality, on specific issues of concern, and to provide concrete recommendations” thereto.71 The InterAmerican Commission on Human Rights established the Office of the Rapporteur on the Rights of Women in 1994 with the appointment of a Commissioner leading the Office, which according to her mandate “raises awareness about the need to take new steps to ensure that women are able to exercise their basic rights; makes specific recommendations that encourage States to meet their priority obligations for equality and non-discrimination; promotes mechanisms that the 69

70 71

Meeting with Ms. Martha Beltrán-Martinez, the Inter-American Commission of Women (CIM), July 22, 1999, Washington D.C., see also in Nilsson, A-C, Violence against women and children in conflict and in peace, Lecture at Women’s Summer School, Subotica, Vojvodina, August 4, 2001, Unpublished paper Inter-American Commission of Women, “The History of CIM”, page 1 of 2, http:// www.oas.org/cim/English/History8.htm Inter-American Commission of Women, CIM Mission and Mandate, Functions of the CIM, http://www.oas.org/en/CIM/about.asp

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Inter-American human rights system provides to protect women’s rights, such as the lodging of individual complaints on violations; prepares specialized studies and reports in this area; and assists the Commission in responding to petitions and other reports of violations of these rights in the region”.72 In 1999 the Optional Protocol to the UN Women’s Convention was adopted by the UN General Assembly, and this Protocol made it possible to bring communications by or on behalf of an individual woman or a group of women before the UN Committee on the Elimination of Discrimination against Women, CEDAW, claiming a violation of the Convention by a state party.73 The individual woman or group of women who have been victimized do not themselves need to fi le a complaint, it is enough if they give their consent to have a communication submitted on their behalf. As it is stated in Article 2 of the Optional Protocol which establishes: a communications procedure which allows either individuals or groups of individuals to submit individual complaints to the Committee. Communications may also be submitted on behalf of individuals or groups of individuals, with their consent, unless it can be shown why that consent was not received.

An inquiry procedure was also established which makes it possible for CEDAW to initiate investigations into situations where grave or systematic violations by a state party have allegedly been committed, which includes country visits.74 The Protocol has an opt-out clause which allows for a state party to not agree to allow CEDAW to conduct the inquiry procedure, however a state party may at any given time revoke the opt-out clause and allow for the inquiry process to take place.75 12.4.

The United Nations Security Council Resolutions 1325, 1820, 1888, 1889 and 1960 on Women and Armed Conflict

The United Nations has made some attempts to raise awareness about the situation for women and girls in armed conflict among its member states and the 72

73

74 75

Inter-American Commission on Human Rights, Office of the Rapporteur on the Rights of Women, The Rights of Women and Mandate; the Rapporteur on the Rights of Women is at the time of writing since 2008, Commissioner Luz Patricia Mejía, www.oas.org/en/iachr/women/default.asp and www.oas.org/en/iachr/women/mandate/mandate.asp, accessed November 30, 2011 The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women was adopted on 6 October 1999 and it entered force on 22 December 2000. Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women Article 10 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women

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different parties to an armed conflict as well as within the organization, and with this awareness has attempted to include women in peace processes and to improve the situation for women in armed conflict. After many decades the situation for women and girls in armed conflict has reached the level of the Security Council, which its resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009) and 1960 (2010) on women and girls and armed conflict specifically reflect. 12.4.1.

Security Council Resolution 1325 (2000)

In 2000, the UN Security Council in resolution 1325 called on all actors, including non-state actors, involved in peace negotiations as well as in the implementation of peace agreements to adopt a gender-based perspective.76 That includes “to support local women’s peace initiatives and indigenous processes for conflict resolution; to involve women in all the implementation mechanisms of peace agreements; and to provide measures that ensure the protection of and respect for human rights of women and girls, particularly as they relate to the constitution, the electoral system, the police and the judiciary” of a given country.77 The resolution furthermore calls on all parties to an armed conflict to fully respect the international law that applies to the rights and protection of women and girls, and lists hereto the Geneva Conventions of 1949 and its two the Additional Protocols of 1977, the Refugee Convention of 1951 and its Protocol of 1967, the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and its Optional Protocol of 1999 and the UNCRC of 1989 and its two Optional Protocols of 25 May 2000, as well as referring to the Rome Statute of the International Criminal Court (para. 9). It also specifically calls on all the parties to an armed conflict “to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict” (para. 10). It furthermore points out the responsibility of all states to end impunity and to prosecute those responsible for genocide, crimes against humanity and war crimes which include rape and sexual violence committed against women and girls, and that these crimes are to be excluded from amnesty provisions (para. 11). Missions sent out by the Security Council are also according to resolution 1325 (para. 15) to factor in gender issues and women’s rights, including consulting with local and international women’s groups.78 The UN Secretary-General followed-up the resolution as he was asked to do so by establishing a task force on women, peace 76 77 78

UN Security Council Resolution 1325 (2000), 31 October, 2000, S/RES/1325 (2000), Adopted by the Security Council at its 4213th meeting, on 31 October 2000, para. 8 UN Security Council Resolution 1325 (2000), S/RES/1325 (2000), para. 8 (a)-(c) The Security Council reaffi rmed in the Preamble to Resolution 1325 “the important role of women in the prevention and resolution of conflicts and in peace-building, and stressing the importance of their equal representation and full involvement in all efforts for the maintenance and promotion of peace and security, and the need to

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

and security in 2001 which provided a study on the impact of armed confl ict on women and girls, as well as the role of women in peace-building, the gender dimension of peace processes and conflict resolution.79 12.4.2.

Security Council Resolution 1820 (2008)

The Security Council raised the bar on rape and sexual violence by establishing resolution 1820 on 19 June 2008.80 Resolution 1820 is a landmark resolution as it acknowledges that rape and sexual violence committed in the context of an armed conflict is a peace and security concern. The Security Council stresses in paragraph 1 of resolution 1820: that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed confl ict and may impede the restoration of international peace and security, affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security, and expresses its readiness, when considering situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence.

While resolution 1820 in terms of protection of civilians in armed conflict takes note that civilians, women and children all are exposed to rape and sexual violence, the resolution still mainly focuses on women and girls and not on boys.81 In the preamble of the resolution, the Security Council making reference to the 2005 World Summit Outcome Document reaffirms the resolve to eliminate all forms of sexual violence perpetrated against women and girls, and furthermore that in the context of protection of civilians, it is particularly women and girls who need protection from rape and sexual violence. The resolution notes in paragraph 3 that women and girls are particularly targeted by the use of sexual violence, and the resolution “demands” that civilians, including women and girls be protected by all parties to a conflict from all forms of sexual violence, and that women and children be evacuated if there is an imminent threat of sexual violence to be perpetrated against them. However, the resolution does not say by whom women

79 80 81

increase their role in decision-making with regard to confl ict prevention and resolution.” Report of the UN Secretary-General, Prevention of armed conflict, June 7, 2001, A/55/985-S/2001/574 Security Council, Resolution 1820 (2008), adopted by the Security Council at its 5916th meeting, on 19 June 2008, S/RES/1820 (2008) Meeting at Office of SRSG-CAAC, May 20, 2009

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and children would be evacuated more than addressing all parties nor explaining how such an evacuation is to be carried out, and it excludes men. The resolution underlines that there should be no amnesty given to perpetrators of rape and sexual violence in “conflict resolution processes”, such as in peace negotiations, as “rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide” (para. 4). The resolution also calls upon member states to prosecute those individuals who have committed such crimes and to ensure that equal protection under the law and equal access to justice are to be given to all victims of sexual violence, however particularly to women and girls (para. 4). The Security Council affirms that it would consider adopting sanctions, targeted and graduated measures, against those parties in an armed conflict that have committed rape and sexual violence against women and girls, but does not mention boys (para. 5). Sanctions that have included rape and sexual violence have only been issued against four individuals in the DRC who have been responsible for serious violations of international law.82 Furthermore, for those countries that are contributing troops and police for UN peacekeeping missions, the Security Council encourages them in paragraph 8 to increase their awareness about rape and sexual violence and to develop the capacity to respond when such crimes are being committed in order to protect the civilians, “including women and children”, as well as finding ways on how to prevent that sexual violence is committed against women and girls. The UN Secretary-General is requested by the Security Council in paragraph 9 to develop guidelines and strategies so that UN peacekeeping missions will be able to better protect civilians, “including women and girls, from all forms of sexual violence”. However, the Secretary-General is here requested “to systematically include in his reports to the Security Council on conflict situations his observations” and recommendations on only the protection of women and girls, and not on boys (boys are not mentioned). The UN Secretary-General is also requested in paragraph 10 to consult with women and women-led organizations on how to develop mechanisms that would protect women and girls from all violence but in particular sexual violence in and around UN managed refugee and IDP camps, in all DDR processes and in work on justice and security sector reform that the UN is involved in. The Security Council urges in paragraph 14 regional and sub-regional bodies to develop and implement policies, activities and advocacy that are beneficial for women and girls who have been exposed to conflict-affected sexual violence. Finally in paragraph 15 of resolution 1820, the Secretary-General was requested to submit a report one year after the resolution by 30 June 2009 to the Security Council on how resolution 1820 had been implemented in the context of situations on the agenda of the Security Council only. The report was to include 82

S/RES/1807 (31 March 2008), in Security Council Report, Update Report, Women, Peace and Security, 21 October, 2008, No. 2, p. 6

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

strategy proposals for how to minimize the risk of the susceptibility of women and girls to sexual violence. The Secretary-General was also to report on the actions parties to armed conflicts had employed with regards to their responsibilities according to resolution 1820, which included having “immediately and completely ceasing all acts of sexual violence and in taking appropriate measures to protect women and girls from all forms of sexual violence”. As a response to the work at the UN with regards to sexual violence in armed conflict which encompasses resolution 1820, UNIFEM, UN Action Stop Rape Now and the UN Department of Peacekeeping Operations issued the report “Addressing Conflict-Related Sexual Violence, An Analytical Inventory of Peacekeeping Practice” in June 2010, which is the first UN report to give “a knowledge base to help military peacekeepers and planners operationalize their obligations to prevent sexual violence and improve women’s security, as part of broader efforts to safeguard civilians from the effects of hostilities”.83 12.4.3.

Security Council Resolution 1888 (2009)

With Security Council resolution 1888, which was unanimously adopted on 30 September 2009, the Security Council continued its work on developing the protection of women with regards to rape and sexual violence in armed conflict, more specifically the Security Council:84 –

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83

84

Calls for the appointment of a Special Representative to lead, coordinate and advocate efforts to end conflict-related sexual violence against women and children; [para. 4] Requests the Secretary General identify a team of experts to assist governments to prevent conflict-related sexual violence and address impunity, including through strengthening civilian and military justice systems and enhancing national capacity, responsiveness to victims and judicial capacity; [para. 8] Requests that UN peacekeeping missions provide information about the prevalence of sexual violence when reporting to the Security Council; [para. 11]

UNIFEM, UN Action Stop Rape Now and the UN Department of Peacekeeping Operations, “Addressing Conflict-Related Sexual Violence, An Analytical Inventory of Peacekeeping Practice”, June 2010 This list is taken from Office of the Spokesman for the Secretary of State, United Nations Security Council to Adopt Resolution to Protect Women in Confl ict Situations, Washington D.C., September 30, 2009, PRN: 2009/T12-35, the United States drafted the resolution, and the United Nations Security Council Resolution 1888 (2009), S/RES/1888 (2009), Adopted by the Security Council at its 6195th meeting, on 30 September 2009

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–

– –

Requests that the UN Security Council Sanctions Committees consider patterns of “rape and other forms of sexual violence” when adopting or renewing targeted sanctions; [para. 10] Requests that the Secretary General identify women’s protection advisors (WPA’s) in peacekeeping operations in countries where appropriate; [para. 12] Calls for the Secretary General to submit annual reports on the implementation of resolutions 1820 and 1888, as well as for more systematic reporting on conflict-related sexual violence; [paras. 24 and 27]

Representatives of 55 countries were present at the Security Council because they had requested to be invited to participate in the Security Council consideration of the draft resolution to which they were party but without the right to vote.85 This was possible in accordance with the UN Charter and Rule 37 of the Provisional Rules of Procedure of the Security Council. In resolution 1888 the Security Council reaffi rmed: that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed confl ict and may impede the restoration of international peace and security; affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security; and expresses its readiness, when considering situations on the agenda of the Council, to take, where necessary, appropriate steps to address widespread or systematic sexual violence in situations of armed conflict [para. 1].

Here the Council limited its actions to situations on the agenda of the Council, which is noteworthy. Furthermore, concerning systematic reporting the Secretary-General was asked to include in all his reports when appropriate to the Council trends, emerging patterns of attack, and early warning indicators regarding sexual violence in armed conflict (para. 24). Resolution 1888 was the first step towards establishing a similar mechanism for women in armed conflict that already exists for children in armed conflict through the 1612 resolution on the Monitoring and Reporting Mechanism (MRM) in terms of systematic reporting. While the use of child soldiering has been the only violation to automatically trigger a country task force in a given country, the list of triggers was expanded in August 2009 by Security Council resolution 1882 to also include killing and maiming and rape and sexual violence

85

U.S. Department of State, Hillary Rodham Clinton, Secretary of State, Remarks on the Adoption of a United Nations Security Council Resolution to Combat Sexual Violence in Armed Conflict, United Nations Headquarters, New York City, September 30, 2009, http://www.state.gov/secretary/rm/2009a/09/130041.htm

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

of children.86 Thus the committing of rape and sexual violence of children up to 18 years of age in an armed conflict is also to automatically trigger a country task force according to Security Council resolution 1612 in situations on the agenda of the Council; in situations not on the agenda of the Council the state party in question needs to give its consent. There is much demand for an equivalent MRM mechanism to be established also for women in armed conflict, since there does not exist a mechanism for reporting and monitoring on these kinds of violations for women. It has been acknowledged in a report by the UN Secretary-General that while the Security Council provides a high-level forum to discuss conflict-related sexual violence and address the protection issues of women within the security sector and justice reform, still the absence of a formal monitoring mechanism limits the flow of information to the Security Council on areas of implementation that require special attention.87 However there has been much resistance at the Security Council among the member states with regard to establishing such a mechanism, as issues such as impunity and sexual violence have been considered to be controversial.88 12.4.3.1.

The Office of the United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict

In January 2010, the UN Secretary General appointed Margot Wallström, a Swedish former minister and former EU Commissioner, as the Special Representative of the Secretary-General on Sexual Violence in Conflict in accordance with Security Council resolution 1888, and she took office in April 2010. The mandate of the Special Representative of the Secretary-General on sexual violence in conflict (SRSG-SXVC) is based on SC resolutions 1820 and 1888, and includes advocacy and reporting. The way the SRSG-SXVC interprets her mandate is to take a broad approach towards rape and sexual violence and to within this approach include sexual violence against all individuals, women, men, girls and boys.89 However, since the majority of the victims has been and is women and girls, the attention of her office needs to prioritize women and girls. At the same time, the Special Representative underlines, this approach does not exclude men or boys.90 The rationale behind this broad approach is to mobilize a

86 87 88 89 90

Security Council Resolution 1882 (2009), S/RES/1882 (2009), 4 August 2009 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, p. 13 Security Council Report Update Report, Women, Peace and Security, 21 October 2008, No. 2, p. 5 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010

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deeper understanding of the issue and the phenomenon as such and to acknowledge that women, girls, men and boys all can be victims of this crime.91 Wallström presented a five point agenda to the Security Council on 27 April 2010 listing the priority areas for her office.92 The five point agenda consists of ending impunity, empowering women, mobilizing political leadership, increasing recognition of rape as a tactic and consequence of war, and ensuring a more coherent response from the UN system to this issue.93 These five priority areas are all interrelated and the rationale behind them is first that as impunity is a major issue and is and has been rampant in many conflict situations it is necessary to begin to prioritize and focus on this issue in a comprehensive way.94 Furthermore, by empowering women, women can no longer be seen as merely victims of war but need to be seen as partners for peace. Empowerment of women needs also to be seen in the context of SC resolution 1325 where it is clearly stated that women should play a role in peace negotiations. Much of the mandate of the SRSG-SXVC is on advocacy, and to mobilize political leadership aims at mobilizing political responsibility for the issue of sexual violence in armed conflict.95 Wallström underlines that as sexual violence in armed conflict has been recognized by the Security Council as a peace and security concern, political accountability for the issue needs to be developed. Also, she means that rape and sexual violence do not take place by happenstance and are not inevitable outcomes of war, but rather a deliberate tactic of war, and as such a consequence of war, which needs to be firmly established. Since sexual violence is a deliberate tactic of war, accountability is necessary, and to end impunity for such crimes, Ms. Wallström states, must become a priority for countries in war. Finally the UN system needs to develop a much more coherent response to the widespread sexual violence that has and is taking place, which the UN system has not so far been able to do. Reporting on sexual violence is a major part of the Special Representative’s mandate, and one objective is to establish a system where the UN missions in the field will gather information and send it through the UN system to the Office of the Special Representative on SXVC, information that will be part of the Secretary-General’s reports on women and sexual violence in armed con-

91 92 93

94 95

Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 Margot Wallström, Special Representative of the Secretary-General on sexual violence in conflict, Interview, New York, August 5, 2010, and S/PV.6302, Security Council, 27, April 2010 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 All in this paragraph is from Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

flict to the Security Council.96 In these reports the Secretary-General can recommend that the Security Council adopts sanctions in cases where rape and sexual violence have occurred in the context of an armed conflict.97 The Special Representative also goes on field visits, and it is the SRSG-SXVC that decides where to go with the consent of a given country, and she chooses which countries that the Office intends to develop a deeper cooperation with.98 Rape and sexual violence in armed conflict is a global phenomenon, and because of its widespread reach, in order to be able to gain results, the Special Representative has begun by focusing on a limited number of countries, including DRC and Liberia, which she visited in April in 2010.99 The office of the Special Representative was at the time of writing in the process of determining which countries that would be priority countries, aside from DRC and Liberia, and the Special Representative has emphasized that as a result of the widespread character of the phenomenon it is important to choose other countries than African as well. The Special Representative is also focusing on post-conflict countries, since sexual violence does not only occur while a country is in a conflict situation. She means that there is very little understanding for the different aspects of the phenomenon and for its implications on a society, or for the high costs that sexual violence in armed conflict has on a society. Sexual violence is like a “footprint on a society” which will take generations to repair, and it is a cheap weapon surrounded by much silence where it is the victims that bear the burden of the crime (and the silence).100 Since Margot Wallström took office she has officially visited DRC three times, Switzerland at least three times, Belgium at least three times, Ethiopia twice, Liberia once, Angola once, India once, Bosnia Herzegovina once, UK once, Austria once, Ireland once, the Netherlands once, Italy once, Latvia once, Finland once, Norway once and Germany once.101

96

Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 97 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 98 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 99 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 100 Margot Wallström, Special Representative of the Secretary-General on sexual violence in confl ict, Interview, New York, August 5, 2010 101 Information from the Office of Margot Wallström, Special Representative of the Secretary-General on sexual violence in conflict, By email, October 6, 2011

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12.4.4.

Security Council Resolution 1889 (2009)

Security Council resolution 1889 of 2009 makes reference to resolution 1325, and while acknowledging the limited role of women in the prevention of armed conflict as well as in peace negotiations, the resolution in particular addresses the need for the participation of women in the post-conflict phase and active involvement in peace-building, as well as women’s and girl’s particular needs in the postconflict phase such as physical security (paras. 1 and 6).102 The Security Council recognizes in the preamble that the obstacles to the participation of women in prevention, conflict resolution and in the post-conflict phase are “violence and intimidation, lack of security and lack of rule of law, cultural discrimination and stigmatization, including the rise of extremist and fanatical views on women, and socio-economic factors including the lack of access to education”, which all contribute to exclude women from any meaningful contribution to peace building. The resolution addresses in paragraph 10 in general terms “Member States in post-conflict situations” which are “encouraged” together with women’s organizations and civil society to in detail identify the needs and priorities of women and girls, and to have “concrete strategies” developed to meet these. The strategies would include the issues of physical security, socio-economic conditions, education, income generation activities, access to basic services including health services (sexual and reproductive health and reproductive rights, mental health), gender-responsive law enforcement, access to justice and how to engage women at all levels of public decision-making (para. 10). The Security Council requested that the Secretary-General with regards to the involvement of the UN in peace-building would consider strengthening the work on political and economic decision-making of women by including these from the very beginning in peace-building processes (para. 15), would ensure transparency, cooperation and coordination between the Special Representative of the Secretary General on Children and Armed Conflict and the new Special Representative of the Secretary General on Sexual Violence in Conflict (para. 16), to present within six months a set of indicators to track globally the implementation of resolution 1325 (para. 17), and provide “an assessment of the processes by which the Security Council receives, analyses and takes action on information” with regards to resolution 1325 (para. 18). The Security Council requested in resolution 1889 that the Secretary-General would within 12 months present a report to it that was to address the participation and inclusion of women in peace-building and the planning in the aftermath of an armed conflict and in it would specifically focus on (para. 19): a.

Analysis on the particular needs of women and girls in post-conflict situations;

102 United Nations Security Council Resolution 1889 (2009), S/RES/1889 (2009), Adopted by the Security Council at its 6196th meeting, on 5 October 2009

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

b.

c. d.

Challenges to women’s participation in confl ict resolution and peacebuilding and gender mainstreaming in all early post-confl ict planning, financing and recovery processes; Measures to support national capacity in planning for and fi nancing responses to the needs of women and girls in post-conflict situations; Recommendations for improving international and national responses to the needs of women and girls in post-conflict situations, including the development of effective financial and institutional arrangements to guarantee women’s full and equal participation in the peacebuilding process.

The Secretary General submitted his report A/65/354-S/2010/466, as requested by the Security Council in resolution 1889 on the participation of women in peacebuilding, in which an action plan on how new practices can be developed to this regard by national and international actors and how to advance the situation for women were presented.103 To implement this action plan seven commitments were to be fulfi lled: (a) women are fully engaged in, and timely gender expertise is provided to, all peace talks; (b) in post-conflict planning processes, including donor conferences, women should play substantive roles and methods should be used that ensure that comprehensive attention is paid to gender equality; (c) adequate fi nancing – both targeted and mainstreamed – is provided to address women’s specific needs, advance gender equality and promote women’s empowerment; (d) deployed civilians possess the necessary specialized skills, including expertise in rebuilding State institutions to make them more accessible to women; (e) women can participate fully in postconflict governance, as civic actors, elected representatives or decision makers in public institutions, including through temporary special measures such as quotas; (f) rule-of-law initiatives encourage women’s participation in the process of seeking redress for injustices committed against them and in improving the capacity of security actors to prevent and respond to violations of women’s rights; and (g) economic recovery prioritizes women’s involvement in employment-creation schemes, community-development programmes and the delivery of front-line services.104

Furthermore, the UN Secretary-General submitted his report on the implementation of the SC resolutions 1820 (2008) and 1888 (2009) in November 2010, in which only situations on the agenda of the Security Council were taken up.105 Many actors provided information to the report, such as UN member states, 103 Report of the Secretary-General, Women’s Participation in Peacebuilding, A/65/354S/2010/466, 7 September 2010, para. 1 and 6 104 Report of the Secretary-General, Women’s Participation in Peacebuilding A/65/354S/2010/466, 7 September 2010, para. 6 105 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 3

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NGOs, senior UN mission focal points from UN peacekeeping and political missions, and at the UN headquarters level, the network United Nations Action against Sexual Violence in Conflict (UN Action) had worked together with the UN Special Representative of the Secretary-General on Sexual Violence in Conflict.106 The UN Action is a network that consists of 13 UN agencies, DPA, DPKO, OCHA, OHCHR, PBSO, UNAIDS, UNDP, UNFPA, UNHCR, UNICEF, UNIFEM, WFP and WHO, and works to end sexual violence in armed conflict.107 As was noted in the resolution the report focuses on “the dynamics and consequences of conflict-related sexual violence as a threat to security and an impediment to peacebuilding in situations on the agenda of the Security Council”.108 The UN uses the term “conflict-related sexual violence” as “a direct or indirect causal link with the conflict itself” in an on-going conflict or a post-conflict situation, and that this causal link can be established through: “the perpetrator’s status as a belligerent party; the proliferation and use of small arms and light weapons; the breakdown of law and order; the militarization of sites of daily activity such as fuel and water collection; cross-border consequences as displacement, trafficking or economic disruption; the (sometimes deliberate) spread of HIV; and the targeting of ethnic, sectarian or other minorities of populations in contested territory of affording an economic, military or political advantage, including in violation of a ceasefire agreement”.109 To improve activities within the UN, the SecretaryGeneral reported that as of September 2010 reports on sexual violence are part of the segment on “Highlights” in the “daily situations reports” of the Department of Peacekeeping Operations (DPKO) (para. 8). The DPKO has also made sexual violence part of its 2010 gender guidelines for mine action programmes (para. 38). Furthermore, data and information gathered for the SG’s report from the country-levels had crystallized into “three common themes”, which consisted of: “there is a need to change social attitudes in tandem with legal and policy reforms to reduce stigmatization; reporting should be standardized, employing an ethical and methodologically sound system that can be used by all stakeholders; and the United Nations system and donor countries should provide coherent and sustained support to national authorities”, including in the post-conflict phase.110 These common themes are very basic and confirm what is already recognized.

106 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 2 107 Stop Rape Now, UN Action Against Sexual Violence in Confl ict, www.stoprapenow. org 108 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 5 109 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 5 110 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 21

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

That a Team of Experts on the Rule of Law should be set up to be rapidly deployed in conflict-affected countries that are dealing with sexual violence to improve the rule of law at the invitation of the host government was called for in the SC resolution 1888 (2009), and on behalf of the UN Action a framework for the Team’s work has been established by the Department of Peacekeeping Operations, the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme (UNDP), and the SRSG on Sexual Violence in Conflict appointed a team leader who will manage a team of two to seven rule-of-law experts.111 In terms of the UN cluster approach, the UNHCR is the global lead for the protection cluster, and UNFPA and UNICEF are co-leads with regards to gender-based violence (para. 42). With regards to peace processes and ceasefires, the report mentions the possibility that a ceasefire violation should be broadened to also encompass sexual violence, and that ceasefires be supervised by mixed civilian military teams.112 For instance UNIFEM and the Department of Political Affairs have developed a “Joint Strategy on Gender and Mediation” for a period of three years where guidance for mediators in how to address sexual violence is to be developed.113 A pooled fund, the Stabilization and Reconstruction Plan for Areas Emerging from Armed Conflict, is assisting the Comprehensive Strategy on Combating Sexual Violence in DRC, which consists of four pillars: “combating impunity; prevention and protection; security sector reform; and multisectoral assistance for survivors”, and it is MONUSCO’s Sexual Violence Unit that does the implementation coordination of this Strategy.114 The Secretary-General in his report recommended that the Security Council would adopt sanctions and other targeted measures against individuals and entities responsible for sexual violence in armed confl ict, that the Security Council would mandate listing of parties who are perpetrators of sexual violence in his annual reports, and that the Security Council would call on parties to a conflict to “make specific and time-bound commitments to ceasing all acts of sexual violence”.115 These commitments were to encompass: “(i) the issuance of clear orders through chains of command prohibiting sexual violence; (ii) the inclusion of the prohibition on sexual violence in codes of conduct on their equivalent; 111 112 113 114 115

Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 26 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 36 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 36 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 36 Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 46 (a)-(d)

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(iii) the timely investigation of alleged abuses and the punishment of perpetrators; and (iv) the designation of a high-level interlocutor in the hierarchy of the group responsible for overseeing the prevention and the punishment of sexual violence”.116 The Secretary-General also urged the Security Council to assist in having “monitoring and reporting arrangements” established regarding conflictrelated sexual violence, and the Security Council was also urged to invite the SRSG on Sexual Violence in Conflict to present briefings, and that “the practice of requesting briefings following relevant visits of my Special Representative to countries on the Council’s agenda” would continue.117 12.4.5.

Security Council Resolution 1960 (2010)

By adopting resolution 1960 in December 2010 the United Nations Security Council finally made progress on holding perpetrators of rape and sexual violence accountable, both state and non-state armed actors. In the resolution the Security Council: 1.

Reaffirms that sexual violence, when used or commissioned as a tactic of war or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate and prolong situations of armed conflict and may impede the restoration of international peace and security; affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security; and expresses its readiness, when considering situations on the agenda of the Council to take where necessary, appropriate steps to address widespread or systematic sexual violence in situations of armed conflict;

Here the Security Council verbatim reaffirmed paragraph 1 of its resolutions 1820 (2008) and 1888 (2009), and while the Security Council did not specify what these “appropriate steps” consist of, it is important to note that it is only in situations on the agenda of the Security Council that the Council is to take such steps. Furthermore the Security Council importantly: 3.

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117

Encourages the Secretary-General to include in his annual reports submitted pursuant to resolutions 1820 (2008) and 1888 (2009) detailed information on parties to armed conflict that are credibly suspected of committing or being responsible for acts of rape or other forms of sexual violence, and to list in an

Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 46 (d) Report of the Secretary-General on the implementation of Security Council resolutions 1820 (2008) and 1888 (2009), A/65/592-S/2010/604, 24 November 2010, para. 46 (e) and (h)

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

annex to these annual reports the parties that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict on the Security Council agenda; expresses its intention to use this list as a basis for more focused United Nations engagement with those parties, including, as appropriate, measures in accordance with the procedures of the relevant sanctions committees;

It is a significant development that parties are to be listed and the parties to be listed are both state and non-state armed actors, however only those parties to a situation on the agenda of the Security Council are to be listed, which for instance excludes the armed actors that have committed rape and sexual violence for decades in Colombia. As confirmed by the Office of the Special-Representative of the SG on sexual violence in armed conflict, resolution 1960 gives the mandate to list parties only in situations on the country specific agenda of the Security Council, and as such parties in Colombia may not be listed in the annex.118 Further, it is the SRSG on Sexual Violence in Conflict, Margot Wallström, on behalf of the Secretary-General, who takes responsibility for proposing parties for listing, and the first report with such an annex is expected in January 2012.119 Similar to the actions plans with regards to for instance the recruitment and use of child soldiers that exist for the 1612 MRM process, the parties to an armed conflict are called upon in the resolution to enter into time-bound commitments to combat sexual violence and also enter into commitments to investigate violations so that perpetrators can be held accountable: 5.

Calls upon parties to armed conflict to make and implement specific and timebound commitments to combat sexual violence, which should include, inter alia, issuance of clear orders through chains of command prohibiting sexual violence and the prohibition of sexual violence in Codes of Conduct, military field manuals, or equivalent; and further calls upon those parties to make and implement specific commitments on timely investigation of alleged abuses in order to hold perpetrators accountable;

The Secretary-General is requested by the Security Council to follow-up on the commitments made only by the different parties to conflicts that are on the agenda of the Security Council, again omitting situations such as in Colombia, as the Security Council: 6.

118 119

Requests the Secretary-General to track and monitor implementation of these commitments by parties to armed confl ict on the Security Council’s agenda

Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, By email October 28, 2011 Office of the Special Representative of the Secretary-General on Sexual Violence in Conflict, By email October 10 and 28, 2011

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that engage in patterns of rape and other sexual violence, and regularly update the Council in relevant reports and briefings;

Importantly the Security Council repeats that it intends to include rape and sexual violence in its designation criteria when either adopting or renewing targeted sanctions, and to this regard the Council is calling on especially the Working Group on Children and Armed Conflict, the Special Representative of the Secretary General for Children and Armed Conflict, and the Special Representative of the Secretary General on Sexual Violence in Conflict to give the relevant information on sexual violence that they have to the Council’s sanctions committees’ monitoring groups and groups of experts: 7.

Reiterates its intention, when adopting or renewing targeted sanctions in situations of armed conflict, to consider including, where appropriate, designation criteria pertaining to acts of rape and other forms of sexual violence; and calls upon all peacekeeping and other relevant United Nations missions and United entities, in particular the Working Group on Children and Armed Conflict, the Special Representative of the Secretary General for Children and Armed Conflict, and the Special Representative of the Secretary General on Sexual Violence in Conflict, to share with relevant United Nations Security Council Sanctions Committees’ monitoring groups and groups of experts, all pertinent information about sexual violence.

The Security Council asks in the resolution that arrangements for monitoring, analysis and reporting be made by the Secretary-General, but not asking for country task forces, and makes a clear distinction between the work of these arrangements as pertaining to women, and the work of the MRM mechanism instituted by the Security Council resolutions 1612 and 1882 concerning children up to 18 years of age: 8.

Requests the Secretary General to establish monitoring, analysis and reporting arrangements on confl ict-related sexual violence, including rape in situations of armed conflict and post-conflict and other situations relevant to the implementation of resolution 1888 (2009), as appropriate, and taking into account the specificity of each country, that ensure a coherent and coordinated approach at field-level, and encourages the Secretary-General to engage with United Nations actors, national institutions, civil society organizations, health-care service providers, and women’s groups to enhance data collection and analysis of incidents, trends, and patterns of rape and other forms of sexual violence to assist the Council’s consideration of appropriate actions, including targeted and graduated measures, while respecting fully the integrity and specificity of the monitoring and reporting mechanism implemented under Security Council resolutions 1612 (2005) and 1882 (2009) on children and armed conflict.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

However all through the resolution the Security Council underlines the importance of coordination of work within the UN structures, and that the Security Council Working Group on Children and Armed Conflict and the Special Representative of the Secretary General for Children and Armed Conflict share information with the Council and relevant sanctions committees and that cooperation by the Special Representative of the Secretary General on Sexual Violence in Conflict is ensured and that the work be coordinated, as the Council: 9.

Requests the Secretary-General to continue to ensure full transparency, cooperation and coordination of efforts between the Special Representative of the Secretary General for Children and Armed Conflict and the Special Representative of the Secretary General on Sexual Violence in Conflict.

The Security Council also acknowledged the work of gender advisers, and “looks forward” to having additional women’s protection advisers appointed in UN peacekeeping missions, as envisaged in Security Council resolution 1888 (2009), similar to the child protection advisors (CPAs) that exist for children in UN peacekeeping missions (para. 10). Finally, importantly the Secretary-General was requested in paragraph 18 of resolution 1960 to in his report on SC resolutions 1820 (2008) and 1888 (2009) by December 2011 provide a list of parties that allegedly have committed or been responsible for patterns of rape and sexual violence, however only for the parties on the agenda of the Security Council: (c)

detailed information on parties to armed conflict that are credibly suspected of committing or being responsible for acts of rape or other forms of sexual violence, and an annex with a list of parties that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual violence in situations of armed conflict on the Security Council agenda;

While this accountability process is similar to the 1612 MRM process – in that actors are to enter into commitments (action plans in 1612 MRM), that these commitments are to be followed-up, that a sort of a monitoring arrangement is to be established on the ground (1612 MRM country task forces for children), and importantly the Secretary-General is to list those parties responsible for these kinds of violations in an annex – there is no Security Council working group on sexual violence in armed conflict to be established and the parties to an armed conflict to be listed are only those parties to an armed conflict on the agenda of the Security Council, which excludes for instance armed actors in Colombia.120 120 During the editing process of this book, the report of the UN Secretary-General on conflict-related sexual violence, A/66/657-S/2012/33 came out on January 13, 2012, and it includes in an annex the first list of parties “that are credibly suspected of committing or being responsible for patterns of rape and other forms of sexual vio-

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While of course the Secretary General with regards to children and armed conflict is mandated to list armed groups in situations both on and not on the agenda of the Security Council, specifically with regards to the recruitment and use of child soldiers, the killing and maiming of children, and rape and sexual violence committed against children, these situations are only for children up to 18 years of age. For instance for young women over 18 years in situations not on the agenda of the Security Council the focus is gone from them even if they might be in an age group that is the most vulnerable to sexual violence including in the post-conflict phase. 12.5.

The Challenges to the Roles of Women in the Ending of Conflicts, Peace Negotiations and Peace-Building

UNIFEM reviewed 21 major peace processes from 1992 until 2009 and found that merely 2.4 per cent of all of the signatories to these peace agreements had been women.121 Furthermore, the review found that for 11 cases where data was on hand about 7.6 per cent of the negotiating delegations included women, and that there was no woman ever appointed in peace talks sponsored by the United

121

lence in situations of armed conflict on the Security Council agenda”. The parties listed were: Parties in the Central African Republic: the Lord’s Resistance Army (LRA); Parties in Côte d’Ivoire: 1. Armed militia groups in Côte d’Ivoire, including: (a) Alliance patriotique de l’ethnie Wé (APWE), (b) Front pour la libération du Grand Ouest (FLGO); (c) Mouvement ivoirien de libération de l’Ouest de la Côte d’Ivoire (MILOCI); (d) Union patriotique de résistance du Grand Ouest (UPRGO), 2. Former Forces armées des forces nouvelles (FAFN); 3. Former Forces de défense et de sécurité (FDS); 4. Forces républicaines de Côte d’Ivoire (FRCI); Parties in the Democratic Republic of the Congo: 1. Alliance des patriotes pour un Congo libre et souverain (APCLS), 2. Armed Forces of the Democratic Republic of the Congo (FARDC), ‘including’ integrated elements from various armed groups, ‘including’ Congrès national pour la défense du peuple (CNDP), 3. Forces démocratiques de libération du Rwanda (FDLR), 4. Forces de résistance patriotique en Ituri/Front populaire pour la Justice au Congo (FRPI/FPJC), 5. Lord’s Resistance Army (LRA), 6 Mai-Mai groups in North and South Kivu, ‘including’: (a) Mai-Mai Cheka and (b) Patriotes résistants congolais (PARECO); and Parties in South Sudan: Lord’s Resistance Army (LRA). Some of these parties were also listed in the UNSG’s 2011 annual report on children and armed conflict to have committed rape and other forms of sexual violence against children, A/65/820-S/2011/250, except for all the parties in Côte d’Ivoire and two parties in the DRC, (the APCLS and the Mai-Mai Cheka). Colombia was mentioned in the report on conflict-related sexual violence in the section that provides “Information on parties to armed confl ict credibly suspected of committing or being responsible for acts of rape or other forms of sexual violence”, III, A/66/657-S/2012/33, p. 5-7. Footnote 3, Unpublished research by UNIFEM in 2009 in United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 21

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Nations as chief or lead peace mediators.122 Of note is that the African Union appointed Graça Machel as one of its three mediators with regards to the crisis in Kenya in 2007–2008. Also, the NGO Women’s Initiatives for Gender Justice, in its work on conflict-affected women, revealed how Congolese activists for the rights of women were excluded from participating in peace talks in DRC even as they tried to be part of these.123 During the Arusha peace negotiations for Burundi, which formally began in 1998 with the Arusha Peace Agreement signed in 2001, women and the civil society played a very important role.124 While the women’s organizations did not get a seat at the negotiation table, these organizations got observer status at the talks. 1 November 2001 was the start of a three-year transitional period for Burundi when a transitional government comprised of 16 parties out of the 17 which had been part of the peace negotiations was established. However, at the time there was no ceasefire since two rebel groups had still not joined the peace negotiations, so the peace negotiations ended with the signing of a peace agreement without a ceasefire and with a transitional government to be installed without a ceasefire. In the transitional government, four out of 26 ministers in the new Cabinet were women, 36 per cent of the members of Parliament were women, which constituted 20 per cent of all members of Parliament, and 11 out of 53 senators were women, which constituted 20 per cent of all senators. The reform of the electoral system and the electoral code to make it more fair were two of the main issues in 2002 for Burundi, and the Electoral Code that was subsequently established stipulates that it is an obligation to consider gender balance when setting up electoral lists and that women need to represent one in four candidates.125 One of the most difficult questions initially was how to organize future elections to reflect that no ethnic group could have more than two-thirds of the votes in a context where 86 per cent of the population is Hutu and 14 per cent Tutsi.126 The new Constitution for Burundi that was also subsequently established created a

122 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 21 123 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 21 124 Burundi President Buyoya, Presentation at United Institute for Peace, Washington D.C., February 8, 2002 125 Burundi President Buyoya, Presentation at United Institute for Peace, Washington D.C., February 8, 2002; and UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 126 Burundi President Buyoya, Presentation at United Institute for Peace, Washington D.C., February 8, 2002

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quota system stipulating that 30 per cent of all members of Parliament are to be women.127 During the transition phase when the new political structure is being developed in a country this is the key time to include political, legal and social changes for women so that women are able to participate at all levels of the society. The Constitution for Rwanda has instituted a quota system where 30 per cent of all posts in state decision-making bodies and in the Rwandan Senate are allocated for women.128 In the Rwandan National Assembly, 30 per cent of all seats are to be allocated for women, which means that at least 24 seats out of 80 need to be allocated for women, and furthermore 20 per cent of all the seats for district counsellors are allocated for women.129 If these rules and quotas are not followed there are legal sanctions. The Constitution of Uganda stipulates that every district of Uganda is to be represented by at least one woman in the Parliament.130 There are 214 women constituency representatives, as well as 61 women representatives of which 56 come from every district and the others represent quotas for groups like defence forces representatives, persons with disabilities, workers and youth.131 Of the seats for the local government councils, one-third is allocated for women.

12.5.1.

The Post-Conflict Transitional Period and the Issues of Justice and Reconciliation The threat of post-conflict violence remains one of the most persistent obstacles to women’s full and equal participation in post-conflict peace building and reconciliation. The gender-based violence that women experience in early recovery situations is exacerbated by the fact that women’s security is rarely a priority in efforts to reform, rebuild or rehabilitate security and justice systems.132

The report by the UN Secretary-General on Women, Peace and Security of 16 September 2009 highlighted several on-going challenges to the implementation of Security Council resolution 1325 for women affected by armed conflict in con127 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 128 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 129 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 130 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 131 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, Box 2D, Quotas for Women, p. 24 132 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 62

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

flict prevention, conflict resolution and peace building and the report shows that the continuous challenges for women in the post-conflict period are multiple.133 The challenges that have been specifically identified are: – The lack of funding to reform, rebuild or rehabilitate security and justice systems as these relate to women in the post-conflict period, where a study from seven post-conflict situations by UNIFEM on “post-conflict planning and fund allocation” revealed that “emergency and post-conflict investments seldom analyse women’s needs or earmark spending for addressing women’s security needs and preventing gender-based violence”.134 – Weak judiciary and security institutions which would guarantee “accountability, prevent violence, and combat impunity”.135 This needs to be seen in the context that after conflict threats of violence usually continue for a long period of time, and that the formal justice system seldom gives any recourse to women and is often not accessible to them. For example there are many practical issues that become obstacles to finding a legal remedy for crimes of sexual violence committed during an armed conflict as the case of Côte d’Ivoire shows. It was found in Côte d’Ivoire that when trying to find a legal remedy for crimes of sexual violence committed during the armed conflict (before 2011) many women could not attain legal evidence because they could not afford to pay the fee for the medical certification of their wounds/injuries that they would have needed for the legal process.136 – Persistent cultural challenges: traditional views on women’s roles in society, issues of stigmatization and continuous discrimination impede positive change, as well as hinder women from becoming politically active.137 – Socio-economic factors: poverty, illiteracy, being occupied with arranging for a home for the family in the post-conflict environment – these situations lead to that women cannot become part of any decision-making processes.138

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United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009 134 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 62 135 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 63 136 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 64 137 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 65 138 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 66

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139 140 141 142 143 144 145

There is very limited information on the gender dimensions of the activities of UN peacekeeping, and as a result “consistent and holistic reporting on women, peace and security” is needed.139 The UN itself with regards to its role in implementing Security Council resolution 1325 “sets a poor example” by having few women in senior positions at the UN and in peacekeeping missions.140 For instance during the 60 years that the UN has been involved in peacekeeping, that is between 1948 and 2008, seven women alone had been appointed as a Special Representative of the Secretary-General.141 Another challenge was reported to be: “A fundamental obstacle to strengthening women’s participation in conflict prevention, conflict resolution and peace building is the novelty of the approach of resolution 1325 (2000) and its departure from the ‘traditional approach’ to brokering peace which only provides opportunities to direct parties to the dispute [only engage the belligerents]. To request that apparent non-participants be engaged in preventing and resolving the conflict may seem foreign to both those who broker peace and those for whom the peace is intended.”142 That there is no 1612 MRM mechanism established for women in armed conflict and as a result there is no systematic feedback on how 1325 has been implemented and on issues such as best practices.143 That peace negotiations and preparations and plans for disarmament, demobilisation and reintegration (DDR) do not take into account SC resolution 1325.144 The consequence of these challenges is that women generally are not included in peace processes regarding situations seized by the Security Council.145 This continues while women and children still are the main victims of violence in the armed conflicts on the agenda of the Security Council. “Lack of cooperation on the part of the parties to armed conflict” with regards to engaging women in conflict prevention, conflict resolution and United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 67 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 70 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 70 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 71 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 72 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 73 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 74

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

peace building severely impedes the implementation of SC resolution 1325.146 These parties often do not stop committing rape and sexual violence, and through “their violence and intimidation” also hinder women from participating in peace processes.147 SC resolution 1325 (2000) specifically asks all parties to conflicts to engage women in peace processes, which neither they nor the international negotiators choose to do. Joanne Sandler of former UNIFEM has meant that the UN and the international community fail to stand up for women and that the UN member states need to look more specifically at how Security Council resolution 1325 (2000) is being implemented in post-conflict situations.148 As she has pointed out “there is factual impunity for rape in peace negotiations as there are no women at the peace negotiations”.149 Furthermore, Sandler has meant that the implementation of the UN Security Council resolution 1820 has been a collective failure, as rape and sexual violence have continued to be perpetrated in conflicts and that there has been very limited UN action against sexual violence perpetuated in armed conflict.150 She continues that one needs to keep in mind that women have suffered for decades and that no action has been taken, in the context that the Security Council has kept silent on the violence that has been committed against women. The UNIFEM focuses on the UN Security Council because it has teeth. The UNIFEM has also pointed out the need for financial resources for specific issues that women are faced with and advocates for the establishment of a multi donor fund for women human rights defenders, which is to be an urgent action fund for women human rights defenders since many women around the world receive death threats in their work for women’s rights and as witnesses of sexual violence committed in armed conflict. In this context only USD 500 could mean life for a woman. For UNIFEM there are several challenges regarding how to end gender-based violence in armed conflict, and one challenge is how the UN is responding in the light of Security Council resolutions 1325 (2000) and 1820 (2008) in the context that gender-based

146 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 75 147 United Nations Security Council, Women, Peace and Security, Report of the Secretary-General, S/2009/465, 16 September 2009, para. 75 148 Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group, United Nations, New York, May 1, 2009 149 Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group United Nations, New York, May 1, 2009 150 Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group United Nations, New York, May 1, 2009

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violence in armed conflict is considered to be a peace and security concern at the highest level of the UN, which is at the level of the Security Council.151 In the context that sexual violence has been committed in so many of today’s conflicts, such as in Sudan, Liberia, Burundi, Rwanda, Colombia, Afghanistan, Iraq, Bosnia-Hercegovina and Chechnya, only four peace agreements have mentioned sexual violence and these concern the DRC, Burundi, Darfur and Uganda.152 As Sandler has stated with regards to peace talks it all comes down to that “it is about men negotiating with men, for the violence men have done to women”.153 This also importantly means that there is no expertise on women’s rights in the negotiation teams. As of 2008 about 2.2 per cent of all the military personnel in UN peace-keeping missions were women, 28.6 per cent of the higher level civilian positions in the Department of Peacekeeping Operations at the UN headquarters were women, and there was one female Special Representative of the Secretary-General appointed and that was for Liberia.154 12.6.

Rape and Sexual Violence Committed in Armed Conflict Blaming the women was easier than blaming the military, abandoning the women was a gesture of contempt and a sign of superiority of men, to not admit their own shame. – How Mayan men in Guatemala during the war reacted to the rape of the women in their families and communities.155

As was noted in armed conflicts all over the world, including Bosnia-Hercegovina, Colombia, Chechnya, Rwanda, Darfur, Haiti, Sierra Leone, the Democratic Republic of Congo, Afghanistan and Iraq, sexual violence has been widespread and well-documented. In a context of no protection and impunity, women and girls are specifically being targeted and their whole families are being affected by these crimes. Rape and sexual violence against women and girls were widely committed during the genocide in Rwanda in 1994.156 In Sierra Leone, sexual vio151 152 153 154 155

156

Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group, United Nations, New York, May 1, 2009 Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group, United Nations, New York, May 1, 2009 Sandler, Joanne, Deputy Executive Director for Programmes, UNIFEM, Conference by the Women’s Foreign Policy Group, United Nations, New York, May 1, 2009 Security Council Report Update Report, Women, Peace and Security, 21 October 2008, No. 2, p. 4 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf, p. 4 See for instance, Human Rights Watch, Shattered Lives, Sexual Violence During the Rwandan Genocide and its Aftermath, September 1996

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

lence during the armed conflict by the different rebel groups was carried out systematically and on a large scale, and was more common than mutilations.157 But amputations (those committed on purpose in particular) were still given more attention. In the context of the gross violations of human rights and international humanitarian law that were committed in Chechnya by all actors, some women’s groups in Russia tried to make their soldier sons and husbands aware of the fact that rape and sexual abuse were crimes before they went to war in Chechnya.158 They wanted to make clear that it is one thing to be a soldier in war, to kill combatants during a war situation is what a soldier might have to do, but it is another thing to become a criminal. That there are certain actions that are not legitimate war acts, but crimes, and by committing these crimes these men would become criminals. These women also tried to make their sons and husbands aware of the psychological toll they themselves would experience as a consequence if they chose to become perpetrators and not stay merely soldiers. However, sexual abuse does not always end with the end of the conflict, as in the post-conflict environment in Rwanda after the genocide, there were estimates that of the girls heading households, 80 per cent were fending off sexual advances or experienced abuse.159 It was still reported that in the first three months of 2007 there were more cases of rape registered than any other crime in Rwanda.160 In late 2009 the author received information that sexual violence against female students at universities in Rwanda was rampant. After the conflict in Kosovo in 1999, many Kosovar women experienced grave gender discrimination and a “steep rise in domestic violence, rape, trafficking and abductions”.161 A notable rise in domestic violence also occurred in Bosnia-Hercegovina after the war.162 Further, because of lack of protection, impunity, lack of governmental action, lack of health services and the stigma associated with sexual violence, sexual violence is also under-reported. The attitudes of international organizations have also been impediments to progress such as that with regards to refugee women and girls they were for a long time given second hand priority by organizations such as 157

Amnesty International, Broken bodies, shattered minds – the torture of women worldwide, March 8, 2001, ACT 40/001/2001, p. 24, and Sierra Leone, the United Nations special conference on Sierra Leone: the protection of human rights must be a priority for the international community, July 24, 1998, AFR 51/014/1998 158 The Union of the Committees of Soldiers’ Mothers of Russia (UCSMR), Women Waging Peace Conference, Harvard School of Governance, November 2000 159 The Women’s Commission for Refugee Women and Children, Rwanda’s women and children: the long road to reconciliation, December 1997, p. 26 160 UNGASS Country Progress Report, Republic of Rwanda, Draft, January 2006-December 2007, p. 15 161 Human Rights Watch, Women’s Human Rights, Women in confl ict and refugees, the World Report 2001, www.hrw.org/legacy/wr2k1/women/women3.html 162 UNHCR, The state of the world’s refugees 1997: A humanitarian agenda, Box.4.3, Women in warn-torn societies, www.unhcr.org/3eb78b3e4.html

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the UNHCR.163 It became known within the organization that the UNHCR was overlooking the needs of women because “our information came from the leaders of refugee committees that were exclusively male. Many aspects of daily life escaped us, such as a woman’s need for wood as fuel, or for cooking.”164 Thus the particular needs of women were never understood even as they had more needs than men. Also, changing attitudes within the organization has been a major challenge even as progress has now been made, as it was for instance found that “many staff members still feel that rape and sexual violence may be regrettable, but remain essentially inevitable incidents of refugee life”.165 Sexual abuse of children is a very widespread problem in Uganda, for instance between 2003 and 2009 over 69,248 cases of sexual offences against children were officially registered in Uganda.166 These abuses have had severe consequences for children as more children have been infected with HIV/AIDS, as well as other sexual transmitted diseases, and there has been an increase in child pregnancies, early marriages and high school dropout rates.167 However, not many perpetrators have been brought to court, as in 2009 there were 7,360 defi lement cases reported to the police, of which 4,433 cases (60 per cent) became court cases, of which 467 (10 per cent) led to convictions. That meant that 2,927 (40 per cent) of the cases were dropped or there was no follow-up of them, and that of the cases that were brought to the courts, 90 per cent (3,966 cases) were still lingering in the courts.168 In this context it is important to keep in mind that the Ugandan Penal Code Act from 2007 criminalizes defi lement where even the death penalty in certain cases can be applied:169 163 164 165 166

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169

Berthiaume, C., Refugee Magazine, Issue 100 (Refugee women) – Do we really care?, 1 June 1995, UNHCR, p. 1 of 3 Berthiaume, C., Refugee Magazine, Issue 100 (Refugee women) – Do we really care?, 1 June 1995, UNHCR, p. 1 of 3 A UNHCR study from 1993 in Berthiaume, C., Refugee Magazine, Issue 100 (Refugee women) – Do we really care?, 1 June 1995, UNHCR, p. 2 of 3 ANPPCAN, Universal Children’s Day 2010: ANPPCAN calls upon Presidential Candidates to Guarantee Fundamental Child Rights, 69000 children defi led in seven years, Kampala, 19th November 2010, www.anppacanug.org ANPPCAN, Universal Children’s Day 2010: ANPPCAN calls upon Presidential Candidates to Guarantee Fundamental Child Rights, 69000 children defi led in seven years, Kampala, 19th November 2010, www.anppacanug.org ANPPCAN, Universal Children’s Day 2010: ANPPCAN calls upon Presidential Candidates to Guarantee Fundamental Child Rights, 69000 children defi led in seven years, Kampala, 19th November 2010, www.anppacanug.org United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 8

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Section 129 of the Penal Code Act: 1) Any person, who performs a sexual act with another person who is below the age of eighteen years, commit a felony known as defi lement and is on conviction liable to life imprisonment. … 3) Any person who performs a sexual act with another person who is below the age of eighteen years in any of the circumstances specified in subsection (4) commits a felony called aggravated defi lement and is, on conviction by the High Court liable to suffer death. 4) The circumstances referred to in subsection (3) are as follows – (a) Where the person against whom the offence is committed is below the age of fourteen years; (b) Where the offender is infected with the Human Immunodeficiency Virus (HIV); (c) Where the offender is a parent or guardian of or a person in authority over, the person whom the offence is committed; (d) Where the victim of the offence is a person with disability; or (e) Where the offender is a serial offender.

Furthermore defi lement victims have the right to compensation in certain cases according to the Ugandan Penal Code Act, which stipulates in its Section 129B:170 (1)

(2)

Where a person is convicted of defi lement or aggravated defi lement under section 129, the court may, in addition to any sentence imposed on the offender, order that the victim of the offence be paid compensation by the offender for any physical, sexual and psychological harm caused to the victim by the offence. The amount of compensation shall be determined by the court and the court shall take into account the extent of harm suffered by the victim of the offence, the degree of force used by the offender and the medical and other expenses incurred by the victim as a result of the offence.

It is important to take into account that the practice of FGM is connected to early marriage which in turn is related to sexual violence and defi lement and that in

170 United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 8

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the Ugandan context these two provisions could under certain conditions be applied here.171 Sexual violence has been escalating in many conflict areas that have already seen a very widespread and high level of sexual violence being committed during the conflicts. In North and South Kivu in the Democratic Republic of Congo sexual violence has exploded since the summer of 2007, and it is even worse than before. There are more rapes being committed in North Kivu than in South Kivu.172 In the city of Goma in North Kivu there are several organizations that work with women and girls who have been raped during the conflict. As one example, the CRN-Cepac (the Christian Relief Network) has a project assisting women who have been raped in North Kivu, and in 2009 there were about 5,000 women who needed assistance.173 The magnitude of the problem with rape and sexual violence is enormously widespread, and the following list provided by the CRN-Cepac of the women’s home villages in some parts of North Kivu where CRN-Cepac is present shows this. The women who have been raped around the city of Masisi in North Kivu come from about 23 villages, the socalled “Axes Masisi”: Mushaki, Bihambwe, Rubaya, Kibabi, Bukombiri, Katoyi, Mema, Kabaya, Katale, Lushebere, Masisi, Nyabiondo, Mutombo, Mahanga, Ngenge, Kibua, Kirotche, Shasha, Buheremana, Minova, Kalungu, Nyamasasa and Nyabibwe.174 Furthermore, women who have been raped around the city of Kitchanga in North Kivu come from about 44 villages, the so-called “Axes Kitchanga”: Sake, Kirorirwe, Ngandjo, Nyamitaba, Kalage, Kibungu, Kahira, Kasura, Tambi, Chungo, Burungu, Kitchanga, Bishusha, Bukombo, Birambizo, Katsiro, Mweso, Shoshny, Murimbi, Busumba, Kirumbo, Rwana, Kitshiro, Nyanzale, Kikoku, Hutanda, Kitajola, Rushagi, Kihondo, Marangara, Kithero, Kiyeye, Kalembe, Kashoga, Bindja, Ihula, Nalero, Peti, Pinga-Walikale, PingaMasisi, Misoke, Rutshuru, Kiwadja and Nyamilima.175 The perpetrators are the

171

172 173 174 175

United Nations Division for the Advancement of Women, United Nations Economic Commission for Africa, Expert Group Meeting on good practices in legislation to address harmful practices against women, United Nations Conference Centre, Addis Ababa, Ethiopia, 25 to 28 May 2009, Hon. Dora C. Kanabahita Byamukama, Member East African Legislative Assembly, Director, Law and Advocacy for Women in Uganda, EGM/GPLHP/2009/EP.10, 11 May 2009, p. 6 and 8 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 30, 2009 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 27, 2009 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 27, 2009 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 27, 2009

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

militaries, the rebels but also civilians.176 Some of the perpetrators pour liquid plastic into the vaginas of the women, other methods include putting wooden sticks into the vaginas of the women as well as using the end of their weapons.177 The perpetrators victimize women and girl children indiscriminately. The victims include everybody from babies to elderly women. At one hospital in the city of Goma in North Kivu, they were treating a six month old baby who had been raped by four men.178 While accurate statistics over how many women, men and children that have been raped in DRC are not attainable, in 2008 UNFPA reported that there were about 15,996 newly registered cases of sexual violence in the whole country, and that 65 per cent of these victims were children of which the majority was adolescent girls.179 Human Rights Watch noted that for the same time period the SRSG-CAAC had reported that about 48 per cent of the victims were children. The former Senior Advisor and Coordinator on Sexual Violence at MONUC, Nicola Dahrendorf, stated that children younger than ten years constituted about 10 per cent of all victims of sexual violence.180 In terms of public health one study from 2008 on women between 15–49 years of age was carried out in the Kasongo health zone in DRC together with data from 2007 on an assessment of health facilities in this area.181 The women were asked questions on whether they had been exposed to sexual violence by an individual outside of the family during the civil war,1996–2003, and after the civil war 2004–2008, and what kind of health services they had been able to get help from if any.182 It was found that during the conflict in this area (the war has 176 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 30, 2009 177 Information from CRN-Cepac, Sifa Munubo, (Christian Relief Network) through email, Goma, DRC, January 30, 2009 178 The six months-old baby was treated at the hospital in Goma as of January 30, 2009, Information from Sifa Munubo, CRN-Cepac (Christian Relief Network), Goma, DRC, January 30, 2009 179 Human Rights Watch, Soldiers who rape, commanders who condone, Sexual violence and military reform in the Democratic Republic of Congo, July 16, 2009, p. 14, www.hrw.org 180 Nicola Dahrendorf in Human Rights Watch, Soldiers who rape, commanders who condone, Sexual violence and military reform in the Democratic Republic of Congo, July 16, 2009, Footnote 9, p. 14, www.hrw.org 181 Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054 182 Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054

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continued in other areas such as in North and South Kivu), 17.8 per cent had on minimum one exposure to sexual violence, while 4.8 per cent of the respondents had at least one such experience after the war. The results also showed that during and after the conflict about 7.3 per cent of the women (one in 20 women) had been exposed to sexual assault, which Casey et al. defined as “being forced or coerced by threats to give or receive oral sex or have vaginal or anal sex”.183 About 58.6 per cent of the women had gone to a health facility to get treatment, of which only about 46.1 per cent had been seeking help in time to get the treatment required to prevent the transmission of HIV, (the post-exposure prophylaxis (PEP) treatment), which needs to be administered no longer than within 72 hours from the time that the act of rape or other forms of sexual violence which can transfer the HIV virus took place.184 Further in order to prevent unwanted pregnancy, the emergency contraception (EC) treatment needs to begin within 120 hours from the time of the rape, which 47.4 per cent of the respondents had been seeking help for. However, PEP or EC treatment had only been offered to three of the women eligible for these treatments, and when the assessment of the health facilities had taken place not any of these facilities had PEP or EC available, while one of the facilities said that they had within the three months period before the assessment given EC once or more.185 The findings showed both a lack of access to quality health care, and that once a person sought health care, the treatment provided was poor as neither PEP nor EC were available at all. As Casey et al. argued, PEP and EC treatments according to the UN guidelines “Clinical Management of Rape Survivors: Developing Protocols for Use with Refugees and Internally Displaced” from 2004 should be considered as the “minimum standard of clinical care” which all persons surviving sexual assault should have access to and every health facility should provide.186 They point at the necessity that in particularly environments of crisis primary health care has to include clinical care for individuals having experienced sexual assault. 183

Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054 184 Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054 185 Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054 186 Casey, S. E., Gallahager, M. C., Makanda, B. R., Meyers, J. L., Vinas, M. C. and Austin, J., Care-seeking behavior by survivors of sexual assault in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vo. 101, No. 6, p. 1054-155

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

A study in DRC by Peterman et al. from 2007 of women between 15 to 49 years confirmed that to estimate the true number of women, men and children who have been raped in DRC is very difficult to do, and that there is a great underestimation of the number of individuals who have been exposed to sexual violence, which is true for all conflict situations.187 This study showed that the number of victims of rape and sexual violence in DRC is many times higher than has otherwise been reported. The study estimated that about 1,150 women per day are raped, that 48 women per hour are raped, and that four women are raped every five minutes, and since this study only included females between 15 and 49 years of age and neither girl children nor boys or men this further showed that these numbers were still low.188 Peterman et al. found that an estimated 3.58 million women have experienced intimate partner sexual violence (IPSV), and that 1.92 million have experienced rape in DRC. A further finding of the study was that IPSV is especially common in DRC where reported IPSV was 1.8 times more frequent than rape.189 Peterman et al. compared the IPSV rates in DRC, which was 35 per cent of women reporting IPSV, to Rwanda with 12 per cent, Zimbabwe with 12 per cent, Malawi 13 per cent and Kenya 15 per cent, according to findings. The findings also showed that Équateur, Orientale, Nord-Kivu, Sud-Kivu and Maniema provinces of DRC had the highest ratings of rape, but that Équateur, Bandundu and Kasai-Oriental had the highest ratings of IPSV, and that more women in North Kivu reported every kind of sexual violence surveyed (history of rape, rape in the preceding 12 months, history of IPSV) than any other province.190 Another finding was that neither education level, wealth nor residence area, urban or rural, protected the women from either IPSV or rape exposure, and Peterman et al. importantly showed that any intervention with regards to sexual violence should not only be directed towards specific groups of women such as marginalized and poor women, or only for rural areas or even conflict areas, but that “geographically diverse interventions” should be contemplated and that violence in families needs to be part of any such interventions.191 187 Peterman, A., Palermo, T., and Bredenkamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vol. 101, No. 6 188 Peterman, A., Palermo, T., and Bredenkamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vol. 101, No. 6, p. 1064-1065 189 Peterman, A., Palermo, T., and Bredenkamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vol. 101, No. 6, p. 1065 190 Peterman, A., Palermo, T., and Bredenkamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American Journal of Public Health, June 2011, Vol. 101, No. 6, p. 1063 and 1065 191 Peterman, A., Palermo, T., and Bredenkamp, C., Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo, American

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12.6.1.

New Law on Rape and Sexual Violence in the Democratic Republic of Congo

In DRC a new Law No. 06/018 of 20 July 2006 was adopted on rape and sexual violence committed against women, men and children, and it provides strong protection to all categories of victims, children, women and men, from rape and sexual violence, and represents the many different types of sexual violence that have been committed in DRC during the long period of armed conflict.192 The law criminalizes indecent assault (l’attentat a la pudeur) and if the victim is a child under the age of 18 years the penalty is imprisonment from six months to five years if no violence was used and imprisonment from five to 15 years if violence was used. The provision on rape is very broad and includes rape by using an object, for which the penalty is five to 25 years in prison, and if the rape caused the death of a person the penalty is life imprisonment. The penalty is doubled if the person committing the rape was helped by one or more people, if the guardians of a victim who was held captive committed the rape, if the rape was committed in public, if the rape caused a considerable change to the physical and/or psychological health of the victim, if the victim was disabled and if the rape was committed by the use or threatening of a weapon (Article 171 bis). The law also covers forced prostitution (three months to five years imprisonment), sexual harassment (one to 12 years in prison as well as a fine of CDF 50,000 to CDF 100,000), sexual slavery (five to 20 years imprisonment), forced marriages (one to 12 years imprisonment, and if the victim is a child under the age of 18 years the penalty is to be doubled), sexual mutilation (two to five years imprisonment, and if the sexual mutilation led to death the penalty is life imprisonment), trafficking of children for sexual purposes (ten to 20 years of imprisonment), forced pregnancies (ten to 20 years imprisonment), forced sterilization (five to 15 years imprisonment) and prostitution of children under the age of 18 years (five to 20 years imprisonment and a fine of CDF 200,000). 12.6.1.1.

Rape Cases Before Courts in the Democratic Republic of Congo

In DRC for the perpetrators of rape the first court instance at the national/local level is “la Tribunale de 1ère instance”, the second instance is the Appeals Court “la Tribunale de 2nd instance”, le Court d’Appelle, whose decisions can be ap-

Journal of Public Health, June 2011, Vol. 101, No. 6, p. 1066 192 All the information in this paragraph comes from Journal Officiel de la République Démocratique du Congo, Cabinet du Président de la République, Loi no 06/018 du 20 juillet 2006 modifiant et complémentant le Décret du 30 janvier 1940 portant Code pénal congolais, Kinshasa 1er août 2006. Th is law text is translated by the author.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

pealed.193 At the local level there is also “la Tribunale du Paix”, which handles disputes between neighbours, and is much closer to the population but this court cannot take on the cases of rape. The problem with the Tribunale de 1ère instance is the long distance between the tribunals and where people live; these courts are far away from the population and victims, and therefore access to this court instance is limited. The processes before these tribunals are long, which means that they are costly for the victims. The victims need to pay transportation costs maybe several times to get to the tribunal, and/or stay overnight in the town where the tribunal is located which is not always financially possible for a victim to do. There is a court’s fee that the victim has to pay for a sentence of conviction to be legalized. The Tribunale first makes a decision on whether a person is guilty of the crime he/she has been standing trial for, and if the person is found guilty the court sentences this person to prison. At this stage it is the victim that brought the case that needs to pay a court’s fee for the sentence to be legalized and once the victim has paid this fee the convicted perpetrator can go to prison but not before the payment of this fee. Centre Olame documented a case in South Kivu of a woman who had been gang raped in February 2009 and who started the judicial process, however the woman was sent to prison in July 2009 because the perpetrators said that she was lying. Subsequently, she was released as it was proved that she had not been lying and one of the perpetrators was found guilty and sentenced to prison. However before the court put him into jail the woman had to pay the court’s fee to the court for the sentence to be legalized. If a person standing trial is found not guilty there is no fee to be paid for that court decision to be legalized. In addition, one reason why convicted perpetrators are released is because there is no food in the prisons and the conditions are so poor. 12.6.2.

Colombia and Sexual Violence

The Special Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights conducted a visit to Colombia in 2005 and found that the different actors in the Colombian internal armed conflict commit sexual, physical or psychological crimes against women and girls.194 These crimes include: 195 193

The information in these two paragraphs comes from Mathilde Muhindi, Directrice for Centre Olame, Bukavu, DRC, Meeting in Washington D.C., August 6, 2010, translated by the author. 194 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 1, it was the former Rapporteur Ms. Susana Villarán (2003-2006) who conducted the trip; and www.cidh. org/countryrep/ColombiaMujeres06eng/I-II.htm 195 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Co-

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(1) (2)

(3)

attacks, massacres and murders committed against communities and their residents in the struggle to control resources and territories; murders, acts of torture and threats against women who have some affective relationship with supporters or combatants or because they or their relatives are involved in political activities; detentions, home searches and kidnappings intended to obtain information, terrorize, punish, intimidate or coerce.

The illegal armed actors commit these crimes for different reasons, such as to punish, to wound the enemy, to generate terror in the communities and among women who are accused by these groups to collaborate with the enemy, to force displacement and are part of forced recruitment.196 As the Rapporteur learned, rape and sexual mutilation many times are committed before massacres and homicides are carried out, but in the official statistics conducted by the state these crimes are not documented as sexual crimes, because they list these crimes as crimes of torture or homicide instead.197 This is also one reason as to why the crimes of sexual violence are underreported, and this is in a context where many communities, families and intimate partners are rejecting and stigmatizing the women and girls who have been sexually violated.198 Sexual violence is underreported in Colombia for several reasons, but one reason is that governmental authorities do not go to the areas that the different armed groups are occupying because of lack of access.199 What is particular for Colombia is the pattern exhibited by the different illegal armed groups that force upon women and girls strict rules of conduct

196

197

198

199

lombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 55, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 48-50, 56, and www.cidh. org/countryrep/ColombiaMujeres06eng/I-II.htm Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 56, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 60, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 67, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

and different kinds of social control in the areas they control.200 The women and adolescents girls living within these areas are consistently being monitored by these illegal armed groups regarding how they dress, conduct themselves and even who they can talk to.201 If the members of an armed group think that a woman or an adolescent girl does not dress appropriately or conduct herself in what is considered to be a proper way, these armed groups inflict punishment on them. As the Rapporteur found these groups often “use sexual violence” to punish these women and girls, and to warn the rest of the women and the girls in the communities what will happen if they do not obey the imposed rules.202 Within this context the stigmatization of women or adolescent girls who are victims of sexual crimes is especially cruel, because they are often blamed by their families and communities for not behaving well enough and for exposing themselves to abuse.203 Their families and communities complicate the situation by putting the responsibility for the violations committed onto the women and girls themselves. Further the Rapporteur learned that “[t]he illegal armed groups dictate standards of conduct, intervene in family and community conflicts, set schedules and apply punishments that can include murder, torture and other forms of cruel and degrading treatment, when inhabitants do not comply with the codes of conduct imposed by force”.204 Meertens points at the severe consequences of the imposition of social control by the armed actors, stipulating that “[t]he imposition of ‘peace and order’ by armed actors may re-establish tranquility in the public realm, but foster violence

200 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 96, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm 201 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 100, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm 202 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 96, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm 203 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 60 and para. 101, and www. cidh.org/countryrep/ColombiaMujeres06eng/I-II.htm 204 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 97, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm

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against women in the private sphere”.205 This in a context with already existing high rates of domestic violence in Colombia. The control of women’s bodies are further evident in Colombia in that women and girls who are members of the different armed groups are many times coerced into having abortions and using contraceptives.206 Both FARC-EP and ELN have been shown to force girls as young as 12 years to have abortions and to use contraceptives.207 These groups do not only force women and girls to have sexual relations, but they deprive the women and the girls of all control of their bodies. Meertens explains that the disproportionate consequences of the armed conflict on the Colombian women consist of: “forced displacement in conditions of marital abandonment or widowhood (leading to an increasing number of women-headed households in displaced populations in the cities); gender-based violence and especially sexual violence by armed actors as a weapon of war; the imposition of patriarchal models of social control by local power holders; and the historical lack of recognition of women’s rights that has facilitated their dispossession and violent seizure of their land”.208 In Colombia between July 2007 and July 2008 about 1,470 individuals were registered to have lost their lives because of the socio-political violence in the country.209 Of all the victims, 105 were women and 61 were children, and in the 913 cases where one could establish the perpetrator, 50.38 per cent (460 victims) were committed by the paramilitaries and 17.20 per cent (157 victims) were committed by the guerrillas.210 Extrajudicial killings have been a persistent problem and within the same time period it was established that of 274 victims, 19 were women 205 Meertens, D., Forced Displacement and women’s security in Colombia, Disasters, 2010, Volume 34, Issue (S2): Cp. S147-S164, www3.interscience.wiley.com/cgi-bin/, S150 206 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October 2006, para. 91, and www.cidh.org/ countryrep/ColombiaMujeres06eng/I-II.htm 207 Amnesty International, Colombia, Scarred Bodies, Hidden Crimes: Sexual Violence against women in armed confl ict, AMR 23/040/2004, p. 18-19; see also Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, p. 189, in Ministerio de la Protección Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006 208 Meertens, D., Forced Displacement and women’s security in Colombia, Disasters, 2010, Volume 34, Issue (S2): Cp. S147-S164, www3.interscience.wiley.com/cgi-bin/, S154 209 Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 6, Translated by author. 210 Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 6-7, Translated by author.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

and 13 children. Also between July 2007 and July 2008 it was registered that 152 individuals had been tortured of which 15 were women and 15 were children, and that most cases of torture, 95.28 per cent, are attributed to the state by either state agents as perpetrators (54.72 per cent of the cases) or by the state accepting the violations committed by the paramilitaries (40.57 per cent of the cases) by not taking any action.211 Many of the torture victims have been tortured by fuerza publica while in detention, and between July 2007 and July 2008 it was registered that 466 individuals had been arbitrarily detained by fuerza publica, of which 46 were women and 36 children. Children have also been exposed to kidnapping and between July 2007 and July 2008 it was found that of all kidnapping victims, 25.82 per cent (197 victims) were women and 16.64 per cent (127 victims) were children under the age of 18 years.212 With regards to the widespread sexual violence the Instituto Nacional de Medicina Legal y Ciencias Forenses (INML) went through 21,202 cases of sexual violence in 2008 and concluded that 84 per cent of the victims of sexual violence were women, and of these 85.7 per cent were under the age of 18 years.213 The Institute estimated that there are “about 1,572 probable victims of sexual violence per month, 52 per day, and two acts of sexual violence per hour”.214 A small research study by the Colombian organization la Corporación Sisma Mujer which was presented to the Inter-American Commission on Human Rights in September 2009 concerning sexual violence against women showed that of 52 testimonies collected from different women, 57 per cent had been sexually violated by paramilitaries, 32.5 per cent by guerrilla groups of which 66.6 per cent by FARC and 33.3 per cent by unidentified guerrillas, and 11 per cent by the Fuerza Publica.215 The authors of the study underlined that this study was by no 211

Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 8, Translated by author. 212 Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 10, Translated by author. 213 Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 8, Translated by author. 214 Mesa de Trabajo, Mujer y Conflicto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 8, Translated by author. 215 Rocío, Chaparro, Moreno, L., Corporación Sisma Mujer, et al., La ausencia de políticas de Estado para enfrentar la violencia sexual contra las mujeres en Colombia, in Mesa de Trabajo, Mujer y Confl icto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 62-63: The study presented to the Inter-American Commission on Human Rights in September 2009 was called “Documento de aporte al seguimiento del cumplimiento de las recomendaciones del informe Las

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means exhaustive and showed only a very small part of the actual numbers of victims of sexual violence, but that it still revealed important patterns which could serve to identify issues that needs to be taken into consideration when working to guarantee the rights of women.216 Importantly the study showed that 33 per cent of all these cases occurred after the establishment of Law 975 of 2005 and the subsequent demobilization of the paramilitary groups (between 2002–2006), which shows the continuance of the paramilitary structures, and that the grave violations of women’s rights still take place. Furthermore, this research study showed that 70 per cent had become internally displaced because of sexual violence, which indicates that there is a link between forcible displacement and the acts of sexual violence. Also, it was shown that 73 per cent of the women had been sexually violated by more than one perpetrator. In 19 per cent of these cases, the sexual violence had been committed at the same time as massacres and killings had taken place, that is in the context of massive systematic human rights violations. Commanders of paramilitary groups and guerrilla groups were found to be the perpetrators in 24 per cent of the cases, which Sisma Mujer means indicates that sexual violence against women is a strategy of war, together with that in 35 per cent of the cases, the women were accused of collaborating with and assisting the opposing armed actor, which also according to Sisma Mujer shows that sexual violence is being perpetrated as an intentional and planned strategy of war.217 The Colombian National Institute of Legal Medicine has reported that it was documented (figures are “incomplete and fragmented”) in 2000 that there were 12,732 cases of sexual violence while there were 21,202 in 2008.218 These constitute cases both within and outside the internal armed conflict, of which about 86 per cent involved girls under the age of 18 years of which 31.5 per cent were aged from 10 to 14 years. An “alarming amount of information on cases of sexual violence against women and girls” was obtained by the UN Office of the High Commissioner for Human Rights, UNOHCHR, in Colombia in 2009, of which the perpetrators were either FARC-EP members or members of the new illegal mujeres frente a la violencia y la discriminación derivadas del conflicto armado en Colombia.” Translated by author. 216 Rocío, Chaparro, Moreno, L., Corporación Sisma Mujer, et al., La ausencia de políticas de Estado para enfrentar la violencia sexual contra las mujeres en Colombia, in Mesa de Trabajo, Mujer y Confl icto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 63, Translated by author. 217 Rocío, Chaparro, Moreno, L., Corporación Sisma Mujer, et al., La ausencia de políticas de Estado para enfrentar la violencia sexual contra las mujeres en Colombia, in Mesa de Trabajo, Mujer y Confl icto Armado, IX Informe sobre violencia sociopolítica contra mujeres, jóvenes y niñas en Colombia, Noveno Informe 2009/ Violencia Sexual, Diciembre de 2009, p. 64, Translated by author. 218 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 43

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

armed groups following the formal demobilization of the paramilitary groups (2002–2006).219 It was reported that the new paramilitary illegal armed groups were perpetrators of sexual violence and that they also were establishing networks of prostitution, human trafficking and sexual slavery. The national police at times knew and accepted this and certain of its members worked together with these groups (Medellín was especially noted). The UN Office also got information that in Antioquia the FARC-EP had recruited women and girls and that they were coerced into using contraception. Also in Antioquia, and in Arauca, Bogotá, Bolivar, Cesar, Chocó and Guaviare, some members of the Colombian security forces were suspected of having committed acts of sexual violence where girls under 18 years of age constituted most of the victims.220 The military and legal authorities have in a certain number of these cases publically acknowledged wrong-doing and have investigated these crimes, however at the same time several security forces members either “contributed to the stigmatization of the victims or pressured them to withdraw their accusations through coercion, threats or payoffs”.221 As the OHCHR reports, with regards to sexual violence impunity remains the rule, even if the Attorney General is providing training to his staff and special investigative units are being established. In 2009 the Constitutional Court issued Order 036 in which it stated that the Office of the Attorney General was not effective with regards to the 183 cases of sexual violence concerning IDP women which it had been ordered to investigate.222 With regards to the “prevention programmes against sexual violence” that the Court in addition had ordered to be developed, it noted that very little had been done by the end of 2009. Torture is still of significant concern in Colombia, and it is very difficult to establish the actual numbers of victims, however the Attorney General’s Office had investigated 10,545 such cases at the end of June 2009.223 The majority of torture cases, of either physical or psychological nature, have taken place at the 219 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 44 220 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 45 221 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 45 222 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 47 223 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 49-50

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same time that crimes like for instance enforced disappearance, kidnapping or sexual violence have been committed against the victim, and the groups that the UNOHCHR reports as being the most at risk of torture include women, children and youth.224 The Inter-American Commission on Human Rights has followed up on its 2006 report “Violence and Discrimination against Women in the Armed Conflict in Colombia” in which it reviewed the findings from a country visit by its Rapporteur on the Rights of Women, and among other things conducted a public hearing in July 2007 on children’s and teenagers involvement in the armed conflict, and a hearing in October 2008 called “Discrimination and violence against women as a result of the armed conflict in Colombia” where women’s groups, civil society organizations as well as representatives of the Colombian government participated.225 Further, the Inter-American Commission on Human Rights submitted a follow-up report in 2009, “Violence and discrimination against women in the armed conflict in Colombia”, as a response to the recommendations given by the Commission in the 2006 report.226 In the follow-up report the Commission noted that “significant challenges remain” with regards to implementing its recommendations, and “that one of the main challenges is to adopt a State policy that offers comprehensive and differentiated assistance to women victims of the armed conflict, in order to ensure that their rights are protected and restored”.227 12.6.3.

Children, Sexual Violence and the Lord’s Resistance Army in Northern Uganda

More than 60,000 children and youth from northern Uganda have been abducted by the Lord’s Resistance Army, LRA, during the 20 years long war, of which one in six female adolescents were abducted, a survey showed.228 Within LRA 224 United Nations, General Assembly, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/ HRC/13/72, 4 March 2010, para. 50-51 225 Inter-American Commission on Human Rights, Annual Report 2009, Chapter V, Follow-Up Report – Violence and Discrimination Against Women in the Armed Conflict in Colombia, para. 1 and 2 226 Inter-American Commission on Human Rights, Annual Report 2009, Chapter V, Follow-Up Report – Violence and Discrimination Against Women in the Armed Conflict in Colombia, para. 1, 9 and 10 227 Inter-American Commission on Human Rights, Annual Report 2009, Chapter V, Follow-Up Report – Violence and Discrimination Against Women in the Armed Conflict in Colombia, para. 11 228 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 236

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

widespread sexual and gender-based violence has been committed against the captured girls and the adolescent females, where the “sexual crimes are committed almost exclusively within the context of forced marriage”.229 Furthermore, it has been confirmed by former captives giving evidence that the sexual and gender-based violence has been a systematic practice which the LRA leaders ordered, but as of 2010 no individual had been brought before a court regarding the gender-based crimes committed including “abduction, forced marriage, rape, sexual slavery, forced pregnancy, torture or forced labor”.230 The LRA and the Ugandan government have signed the Agreement on Accountability and Reconciliation, which includes the provision of some measures of accountability and reconciliation institutions and procedures to be established including traditional justice mechanisms which the Agreement puts emphasis on.231 While there is much agreement among the traditional leadership, the local government, the civilian population and civil society organizations in Northern Uganda to use traditional justice mechanisms, it is unclear what role such mechanisms are to play and what types of crimes committed by the LRA these mechanisms would be able to take up.232 With regards to sexual and genderbased crimes, many girls and women that the group has been holding in captivity are sceptical to having traditional mechanisms handling these types of crimes.233 229 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 236-237, 240 230 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 237 231 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 237-238 232 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 238 233 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 238

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It is thought that about one quarter of all the girls and women who have been abducted by LRA have been sexually abused or raped, or witnessed a rape or other sexual abuse of another female, and with regards to the crime of forced marriage which the LRA has widely committed it has been said that “the most at risk of being forced into marriage are over the age of fifteen who are held in LRA captivity for two weeks or longer”.234 The girls and women that have been abducted by LRA have come from different parts of northern Uganda including Acholiland, Lango, Teso, West Nile, and from CAR, DRC and Southern Sudan. The control of the abducted women and girls is very rigid as the LRA leaders control the females’ sexuality through the group’s rigid hierarchical structure and strictly enforced regulations, using intimidation, discrimination and violence. Strict rules govern how abductees may interact with each other and behave. The captor “husbands” exercise exclusive sexual access to the abductees. LRA leadership also exercises sexual control through enforcing pregnancy and child bearing (for example, exacting severe punishment for attempted abortions). Rules dictating interpersonal conduct are enforced by LRA leadership through beatings and killings.235

Interviews with former LRA forced wives have further revealed that “abducted females are sometimes forced to beat or kill other abducted females”.236 The level of cruelty is staggering, and to put an end to impunity and find a way to enforce accountability of these crimes needs to be a priority for the Ugandan government in order to uphold its responsibilities towards its female population to protect their rights. Indian forces and paramilitary militias have conducted rape during all the years of conflict in Kashmir. There have been some prosecutions by the Indian government and some security personnel have been punished, but the major-

234 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 243-244 235 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 244 236 Carlson, K. and Mazurana, D., Accountability for sexual and gender-based crimes by the Lord’s Resistance Army, Chapter 7, Accountability and reconciliation in Northern Uganda, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 244

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

ity of the perpetrators go free.237 While rape has continuously been committed, during certain periods the cases increase such as in the Doda region and other border areas in 1997. The Indian army assaults the villagers on grounds “that they have supported the militants”, or will support them. The Indian army, such as the Eight Rashtriya Rifles, comes to people’s houses and harasses the family members, and sometimes takes all the family members with them to their bases where the families are separated, and rape the women. For instance, in 1998, during 15 days some 20 villages were cut off by the Indian army and a number of women were taken to the army camp:238 They are looking for the militants. But they are unable to find any. So they harass the local population … Our womenfolk are taken into the army camp, all separately. They round up the women, then take two or three in the evening. They come back after two or three days. They are very shy then, and don’t want to talk about what has happened to them. The army has pressured them not to speak about what happened.

12.6.4.

Gender-Based Violence and Feminicide

Iraqi women’s organizations have claimed that the violence committed against women in Iraq since 2003 has amounted to the crime of “ feminicide”.239 How many women that have been violated by Islamist militias is not known, but it is well established that many more women have been violated (including harassment, assault, abductions, rape, killings) than is revealed by statistics, also in the context that stigma, fear of retaliation or lack of confidence in the police prevent women from reporting the abuse.240 The under-reported cases of gender-based violence in national statistics and the lack of gathering of information about these violations are some of the reasons behind this. Madre has argued that all conditions for feminicide have been present in Iraq and explains that feminicide is “characterized by impunity for perpetrators and a lack of justice processes for victims. Feminicide occurs in conditions of social upheaval, armed conflict, violence between powerful rival criminal gangs and militias, rapid economic transformation, and the demise of traditional forms of state power.”241 The local or state authorities’ involvement in the violence against women is also part 237 HRW, India: Behind the Kashmir Confl ict, Abuses By Indian Security Forces and Militant Groups Continue, July 1999, Vol. 11, No. 4(C), p. 11-12 238 HRW, India: Behind the Kashmir Confl ict, Abuses By Indian Security Forces and Militant Groups Continue, July 1999, Vol. 11, No. 4(C), p. 12 239 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13 240 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13 241 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13

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of feminicide, as for instance Iraqi women’s organizations have established “links between the Islamist militias who control and work in the police force and criminal gangs involved in forced prostitution and trafficking of women”.242 There are distinctions between the two concepts of “ femicide” and “ feminicide”. While Madre’s definition of feminicide was given above, the definition of “femicide” is “the murder of a woman because of her gender”.243 “Feminicide” is a political term, and in addition to Madre’s definition it is important to understand that “feminicide” “holds responsible not only the male perpetrators but also the state and judicial structures that normalize misogyny, tolerate the perpetrators’ acts of violence, or deny state responsibility to ensure the safety of its female citizens”.244 Both femicide and feminicide exist in Guatemala, and the violence committed against women in Guatemala is directly related to the sexual violence that was being committed against women during the armed conflict in Guatemala.245 As has been reported there is much evidence for this position “as the rise of violence against women in the last decade, including rape, dismemberment, and techniques of torture and mutilation, is reminiscent of tactics used during the war”.246 It was a wartime practice to stigmatize and blame the victim, and this practice still continues in Guatemalan police and judicial processes as “many victims are dismissed as prostitutes, gang members, or criminals, unworthy of investigation”.247 The end result is that impunity still reigns and rape and sexual violence can continue unabated. Femicide is also an issue in for instance the occupied Palestinian territories.248

242 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13-14 243 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf 244 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf 245 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf 246 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf 247 The Guatemala Human Rights Commission/USA, Guatemala’s Femicide Law: Progress Against Impunity?, 2009, www.ghrc_usa.org/publications/ femicide_ Law_Progressagainstimpunity.pdf, p. 4 248 Women’s Centre for Legal Aid and Counseling, WCLAC, Heading towards achieving hope, 2005 Annual Report, Executive Summary, Ramallah, www.wclac.org/english

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

12.6.4.1.

Gender-Based Violence in Iraq

A distinct pattern of violence against women developed in Iraq after the US invasion in 2003. Already in the summer of 2003, Iraqi women said that the rise of the Islamists was the primary source of violence as Islamist so-called “misery gangs” had begun to patrol the streets and insert control over and harass women.249 The women were beaten and harassed by these gangs if they according to the standards of these gangs did not dress or behave properly. One woman musician warned that “[i]f the Islamists see me walking on the street with my flute, they could kill me”.250 The Islamists warned male doctors not to treat women whereas women doctors were told not to treat men. Women across Iraq were warned through leaflets and graffiti not to go out unveiled, drive, wear make-up, or shake hands and socialize with men. In addition, both the Badr Brigade and the Mahdi Army set up “punishment committees” whose members were out on the streets harassing those people that they meant did not follow Islamic law.251 The Mahdi Army in Basra basically locked women up in their homes, as well as pronounced that it was an offense punishable by death to wear pants or to go out in public with no headscarf. Already during the first four months after the occupation of the US began, about 400 Iraqi women had been abducted and raped.252 In March 2004, the largest problem for women according to themselves was the breakdown in security and public order. Women feared leaving their homes because there had been a huge increase in abductions, rape and sexual slavery. As a result, the families did not want their girls to go to school so they were kept at home, and the women needed a male escort to go out in public. The Islamists’ first targets of violence were women, Christians, and lesbian, gay, bisexual, transgender, transsexual and intersex (LGBTTI) Iraqis.253 Both Iraqi Sunni and Shiite groups have been involved in the violence against women. The Sunni group, the Mujahadin Shura Group, initiated a campaign in Mosul directed against Christian women who were kidnapped, raped, confined to sexual enslavement and killed.254 The Shiite spiritual leader of SCIRI, Grand Ayatollah 249 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 7 250 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 7 251 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 7 252 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 7 253 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 8 254 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 8

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Sayyid Ali Sistani, gave orders that all Iraqi women should wear headscarves, and militants connected to him were enforcing these orders by carrying out beheadings and acid attacks.255 The purpose of the Islamist groups has been first hand political with the intent to create an Islamist state while using religion as a means to establish control first of all over women who would be detrimental to their vision of a state theocracy. All women in Iraq have been exposed to this violence but only some specific groups of women have been especially sought out and they are: political leaders, professionals, academics, students and women who defend the human rights of women in public.256 Yanar Mohammed, Director of the Organization of Women’s Freedom in Iraq (OWFI), has stated that “[w]hen I think of the women who have been beheaded, kidnapped, and gunned down, they have a lot in common: they are successful, educated and public people who represent a cosmopolitan lifestyle”.257 All of these atrocities have been able to be carried out in the context of the US occupation where the human rights of the women or children were not protected. Instead the US contributed to the rise of the Islamist groups and gave support to some of these groups, such as the Shiite groups to combat the Sunni-led insurgency, but with devastating results for women and their families.258 In the name of establishing security and stability, more insecurity and instability became the result. Madre has reported that the “Shiite militias’ systematic torture of women was an established fact of life in Iraq” by June 2005.259 Many Iraqi artists, musicians, academics and teachers, men and women, were targeted, harassed and killed by the Islamists, but the women have in addition been targeted because they are women. Yanar Mohammed has stated that her organization has studied “these killings since they began”, and that “[i]t is not that the Islamists also kill women journalists, performers or intellectuals – women are especially hunted. That’s because they commit a double offense – by advocating a secular society and by being accomplished, working women.”260 To collect data on the number of women killed has been very difficult for several

255 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 8 256 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 9 257 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 9 258 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 11 259 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 11 260 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

reasons, one is that the Iraqi Health Ministry was ordered by the US authorities many times not to publish any statistics on who or how many Iraqis were killed.261 Iraqi women’s organizations have claimed that the violence committed against women in Iraq since 2003 amount to the crime of “feminicide”.262 The actual number of the women who have been violated are much higher than the actual existing statistics reveal, also in the context that stigma, fear of retaliation or lack of confidence in the police prevents women from reporting their abuse. The under-reported cases of gender-based violence in national statistics have led them to this conclusion. Madre has argued that all conditions for feminicide have been present in Iraq and explains that feminicide is “characterized by impunity for perpetrators and a lack of justice processes for victims. Feminicide occurs in conditions of social upheaval, armed conflict, violence between powerful rival criminal gangs and militias, rapid economic transformation, and the demise of traditional forms of state power”, and “the complicity of local or state authorities in violence against women” is also part of feminicide.263 Furthermore, some women’s organizations in Iraq have established “links between the Islamist militias who control and work in the police force and criminal gangs” engaged in trafficking and forced prostitution.264 Honour killings increased dramatically in Iraq after the US invasion in 2003, of which some were as a result of US policy.265 Many of the clerics of the Islamist political parties that came to power during the US occupation have encouraged the use of “honour killing” as a religious duty.266 As Madre explains “[w]omen who are attacked by men outside their family are considered to have shamed their families. For that reason, the overall rise in rape and kidnapping under the US occupation has elicited a rash of “honour killings.” In October 2004, Iraq’s Ministry of Women’s Affairs revealed that more than half of the 400 reported rapes since the US invasion resulted in the murder of rape survivors by their families.”267 Furthermore, since tribal leaders got increased power due to opposition to the rise of the Islamist groups, these have also contributed to the increase 261 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13 262 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13 263 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13 264 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 13-14 265 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 16 266 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 16 267 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 16

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of the number of honour killings in rural areas.268 As an example, the tribe of a murderer in the Maysan rural area paid USD 3,000 to the victim’s family and three women in marriage so that the accused murderer could be released from prison which he was. Women as bearers of group identity have also been used and targeted for revenge attacks by different Islamist groups which OWFI has been reporting on since 2003. For instance, OWFI gave an example of revenge attacks in September 2006: “Recently, a sectarian gang abducted a Shiite woman from the Alhussienya district of northern Baghdad, raped her and dumped her in a deserted area on the outskirts of the city. In retaliation, a Shiite gang kidnapped eight Sunni women from Rashidya district (adjacent to Alhussienya) and subjected these women to rape and torture.”269 Another case where women have been targeted as bearers of group identity is in Mosul and in other places where Christian women have been raped “as part of a broader attack on that community”.270 Another issue that has been underreported is that many Iraqi women have been detained by US and Iraqi forces. In US detention centres it has been documented that many women have been raped and tortured by US military personnel.271 A social researcher at the Center of Rehabilitation for Youth (part of the Iraqi Justice Ministry), Rafida Shalal al-Jbouri, has verified that women prisoners have been assaulted and raped at the Abu Ghraib and al-Tasfeerat prisons.272 An Iraqi attorney, Amal Kadham Swadi, has commented that “sexualised violence and abuse committed by US troops goes far beyond a few isolated cases”, and the American Civil Liberties Union (ACLU) has reported in 2005 that 13 rape cases and other forms of torture of female detainees have been documented.273 Most women have been detained without any charges and due process, and many have been held hostages in order to put pressure on their relatives to surrender to the US military.274 In addition, it is not known how many women or girls who have been detained and for how long. The director of the International Occupation 268 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 19 269 Organization of Women’s Freedom in Iraq, OWFI, in Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 19 270 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 19 271 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 21 272 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 21 273 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 21 274 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 22

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Watch Center, Iman Khamas, reported that about 625 women and girls prisoners were held in the Al-Rusafah prison in Uma Qasr and 750 in the Al-Kadhimiya prison alone since 2003, and that the ages extend from twelve year old girls to 60 year old women.275 Another issue has been the undisclosed number of women and girls held in the secret detention centres that the US military has operated. This needs to be understood in the context that the Islamist groups came to power during the time of US occupation, and that “honour killings” have been part of this context which has further exposed women to violence. It has been widely assumed in the communities that women who were detained have been raped and this in turn has been a reason for honour killings to take place.276 In the occupied Palestinian territories women and girls have been living in a context of on-going conflict, political instability, internal factional confl icts, the division between Fatah and Hamas, and the continuous occupation by Israel which has not only put restrictions on their lives but also restricted the development of their human rights. Persisting problems include discrimination, violence against women and femicide, where for instance in the West Bank during the first six months of 2005, 27 cases of femicide of women and girls were reported because of “family honour”.277 12.7.

The Importance of Documenting and Recording Gross Human Rights Violations Such as Rape and Sexual Violence Also When Impunity Is Rampant and the Court System Does Not Function

In the context of armed conflicts even as these situations are very difficult, it is still of crucial importance that individuals and different organizations and NGOs find a way to record and document gross human rights violations such as rape and sexual violence, because these kinds of crimes can constitute crimes against humanity and/or war crimes and in some cases be part of genocide. For instance crimes against humanity as an international crime does not have any statute of limitation which means that such a crime can be prosecuted at any time even several years after the crime has been committed. The cases of the end to the military dictatorships in Argentina and Chile show how everything can change after many years of forced silence and fear, and that what was thought to be impossible suddenly, when the conditions are right, can become very plausible. In Argentina, the Punto Final and Due Obedience laws were nullified in November 2001 by a Buenos Aires federal court, which made it possible for the first time since 1987 to bring to trial a military officer 275 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 22 276 Madre, Promising democracy, Imposing theocracy, gender-based violence and the US war on Iraq, New York, 2007, p. 16 277 Women’s Centre for Legal Aid and Counseling, WCLAC, Heading towards achieving hope, 2005 Annual Report, Executive Summary

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who was charged with torture and disappearances which had been carried out during the “dirty wars” during the military dictatorship in Argentina between 1976–1982.278 In 1983 the Argentinean President Raul Alfonsin established a truth commission called the National Commission on the Disappeared (CONADEP) which issued a very comprehensive report called “Nunca Más” in 1984. The Argentinean truth commission was the first major truth commission to be established, (at the time truth commissions had beforehand been established in Bolivia which did not come out with a report, and in Uganda by the dictator Idi Amin), and its report “Nunca Más,” which was a bestseller in Argentina, reported on not only the perpetrators but equally on the many victims who gave their accounts of events.279 Likewise everything changed in Chile, when the immunity from prosecution of General Augosto Pinochet, the former President of Chile during the military dictatorship, was taken away by the Santiago Appeals Court in May 2001, which paved the way to prosecute him, however due to ill health he was not tried.280 Pinochet while travelling to London, United Kingdom, was arrested by the British authorities as Baltasar Garzon, the Spanish magistrate, had issued an arrest warrant against him and charged him for crimes against humanity, including genocide, torture and terrorism, which Spanish citizens in Chile had been exposed to during his military dictatorship between 1973–1988, and he had asked the UK to extradite Pinochet to Spain.281 The British House of Lords decided that crimes against humanity did not protect the immunity of a former head of state, but still decided not to extradite Pinochet to Spain due to his ill health and sent him back to Chile. When Pinochet came back to Chile, his regime’s victims’ families and political parties, trade unions and different professional groups had registered over 60 “domestic criminal complaints” for crimes that were committed during his military dictatorship.282 While his immunity from prosecution was stripped and he was considered not to be able to stand trial 278 Godwin Phelps, Teresa, Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 120 279 Godwin Phelps, Teresa, Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 82 and 90; the truth commission in Uganda was called “the Commission of Inquiry into “Disappearances” of People in Uganda since the 25th January, 1971” and was established in 1974, and it issued a report in 1975; and the Bolivian truth commission was called “the National Commission of Inquiry into Disappearances,” and was established in 1982-1984 to investigate the period of 19671982, however it never published a report as it was disbanded beforehand: see also Priscilla B. Hayner, Unspeakable Truths, Facing the challenge of truth commissions, 2002, Appendix 1 280 Godwin Phelps, Teresa, Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121 281 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 120-121 282 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

due to his ill health, he remained in house arrest until his death 2006. However, two former military officers and one cadet of the Pinochet regime were in July 2001 sentenced to life imprisonment by a Chilean court for a murder having been committed in 1982 during the dictatorship of Pinochet.283 In Chile after the arrest of Pinochet, several torture victims, who had kept silent and were still living in fear, came forward of which some gave their testimonies to human rights groups and many turned to doctors and psychologists for assistance.284 The Chilean truth commission which was established in 1990 was mandated to examine “disappearances, executions, torture leading to death, political kidnappings and attempts on life by private citizens for political purposes”.285 Subsequently when it dealt with the crime of torture, which was very common during the dictatorship, it only dealt with cases of torture leading to death and the many thousands of victims of torture who had not died from their injuries inflicted by their torturers had not been able to come forward.286 There had been a great silence following the publication of the Chilean truth commission report in 1991 because of continuous fear and apprehension in a context where the perpetrators were still at large, and the “dark” climate that remained in Chile even after Pinochet had stepped down had resulted in that people still kept quiet about their experiences. However the arrest of Pinochet in London had a profound effect, and it was said that “Pinochet’s arrest was a great

283 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121 284 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121 285 Hayner, P., B., Unspeakable Truths, Facing the challenge of truth commissions, 2002, p. 72-73 286 In the Chilean Truth Commission’s mandate it was said that the commission should cover “disappearance after arrest, execution, and torture leading to death committed by government agents or people in their service, as well as kidnappings and attempts on the life of persons carried out by private citizens for political reasons”; and also, While ‘torture not resulting in death’ should not be investigated, the commission reported on the torture practices however they omitted the survivors from the lists of victims, see Priscilla B. Hayner, Unspeakable Truths, Facing the challenge of truth commissions, 2002, Chart 4, Appendix 1, p. 317 and 307: The Chilean truth commission, Comisión Nacional para la Verdad y Reconciliación, “The Rettig Commission”, was established by a Presidential Decree and began its work August 24, 1990 with 8 members, and was in force for 9 months until 1991 when its report became public in March 1991, and covered the period from when Augusto Pinochet and his military regime took power in 1973 until 1988 when Pinochet lost the election and Patricio Aylwin became president, that is September 11, 1973-March 11, 1990, Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 91-93

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catharsis that has begun to break the silence”.287 After Pinochet’s arrest, some of his former associates began to openly talk about the part Pinochet had played in concealing human rights violations, and in turn these “revelations had a snowball effect”.288 Furthermore, former junta members and military generals that had retired came forward in July 2003 and reported how in order to keep bodies and evidence hidden, mass exhumations had occurred during Pinochet’s dictatorship.289 This shows that what was once considered impossible can become more than achievable, and that for this reason documentation of especially crimes against humanity is a necessity. 12.7.1.

Centre Olame, Bukavu in South Kivu in the Democratic Republic of Congo

Centre Olame in Bukavu in South Kivu has a very important women’s programme where since the conflict in DRC erupted in 1996 much work is centred on the many victims of rape and sexual violence.290 Centre Olame has a programme for women and girls who have been raped within the jurisdiction of the Bukavu Archdiocese district. Some women and girls are taken to Centre Olame where they stay for a couple of months for treatment until the situation has calmed down in their home villages. When the situation has relatively calmed down in a village after an attack, Centre Olame has organized a form of a community psychology programme in the women’s own social environment. These programmes are always changing depending on the situation and needs, and therefore the approach taken can be changed. Centre Olame says that the biggest pressing problem is rape, where Interhamwe has been a persistent problem. Staff at Centre Olame says that it is many times difficult to identify the victims of rape and sexual violence since many women live in villages far away from the city of Bukavu. Further, as a result of the rapes there are many cases of unwanted pregnancies. Many times it is not by chance that a particular woman or girl gets raped, as the perpetrator deliberately go looking for some girls and know which girl he wants to return with. Many girls are abducted in the forests when they are 287 Clifford Krauss “Shadows of Torment/ A Special Report: Pinochet Case Reviving Voices of the Tortured ,” New York Times, January 3, 2000, A10, in Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, footnote 12, p. 121 288 Reed Brody, “Justice: The First Casualty of Truth?”, Nation, 272, no. 17, April 30, 2001, 28, in Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121 289 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 121 290 The information in this paragraph comes from visit to Centre Olame, Bukavu, South Kivu, May 2007, and subsequent meetings with Mathilde Muhindi, Directrice of Centre Olame

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

collecting firewood. Centre Olame works for a durable peace, and works together with other human rights NGOs, and has several other programmes such as peace and democratization programmes, a bakery and a conference centre. According to Centre Olame in South Kivu the main perpetrators of the rapes and sexual violence have been:291 Rwandan Interhamwe The Congolese army However, it can also be a boy in the neighborhood

The Centre means that the biggest obstacle is impunity because many of the perpetrators are to a certain degree known in the communities. Another obstacle is that most women and girls do not know their rights. Another important obstacle is the lack of will of the government to protect its population. If the will is not there, then there is no protection. Centre Olame says that when a village is attacked all women and girls are raped, and points at that it is important to recognize that the sexual violence and lootings are carried out in the context of extreme poverty. Centre Olame has diligently recorded in different reports the number of rapes committed in their district, how many children were born as a result of the rapes, how many husbands were killed at the time of the rapes of their wives, how many couples that were separated because of the rapes, and the instances of different illnesses and health problems caused by the rapes including HIV/AIDS. The two reports referred to here cover the time period from 2005 to 2007, and they are “Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. ‘Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005–2007.’ No 115/ 10073 A, Première année: 2005”, and the report “Archidiocèse de Bukavu, Rapport Narratif des Activités, Projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005–2007. No. 115/ 10073 A., Deuxième année 2006”.292 With regards to the first report, which shows the year of 2005, Centre Olame has listed some of the consequences of rape:293

291 The information in these paragraphs come from visit to Centre Olame, Bukavu, South Kivu, May 2007 292 These two reports were copied and later translated by the author at a visit to Centre Olame, Bukavu, South Kivu, May 2007 293 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005

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Number of women becoming pregnant as a result of the rape Children born as a result of rape Husbands killed on the day of the rape Couples separated as a result of the rape Number of cases infected by the HIV/Aids virus Number of cases referred to medical specialists

1st semester 43

2nd semester 7

3rd semester 50

77

34

111

87

64

151

79

67

146

13

2

15

35

10

45

Centre Olame reported that there were some constant features with regards to sexual violence that were particularly noticeable from the beginning to the end of 2005.294 As such, Centre Olame registered every month cases of pregnancies as a consequence of rapes, children that were born out of rape, women whose husbands or other members of the family were killed during the same day as the rape took place, and women who had survived in the forest where they had been used as sexual slaves, tortured and had been traumatised in multiple ways. Some of these women were sent to specialist hospitals, especially to the Panzi hospital.295 Women who had been infected by the HIV virus were also registered during the whole year. Many victims had also experienced physical torture as well as looting of their belongings. The intensification of the number of cases where women had been attacked and the abductions of groups of people by different bands of attackers in some villages such as Kaniola, Ninja and Kalonge (not exclusive list of villages) led to that Centre Olame felt a need to reorient their work to also include the whole communities and the families of the women that had been raped into Centre Olame’s programmes for victims.296 The extent of the violations had such wide-

294 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005 295 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005 296 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet tri-

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

spread consequences not only for the woman herself, but for her family and her whole community as well. Centre Olame keeps some statistics of different periods of when rape has been committed which shows how this crime just escalated since 2000 until 2005 in the number of cases:297

2000 2001 2002 2003 2004 2005

1st semester 1 1 14 98 460 289 863

2nd semester 0 1 2 24 128 233 388

Total 1 2 16 122 588 522 1.251

The age of the victims is very relevant as it shows that also very young children as well as elderly women were raped. It shows that no one escaped this crime:298

Age 0-10 years 11-20 21-30 31-40 41-50 51-60 61-70 71-over

1st semester 9 165 256 199 161 50 18

2nd semester 2 48 113 97 83 34 10

Total 11 213 369 296 244 84 28

5 863

1 388

6 1.251

ennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005 297 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005 298 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005

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Centre Olame has registered the perpetrators of the rape during this time period and it shows that all groups committed rape, but that the Rwandan Interhamwe was the worst perpetrators:299

Rwandan in the forest/ Interhamwe FARDC The Men of the group NKundabatware Mai-Mai Others (which also include civilians) Total

1st semester 1.819 = 86.5%

2nd semester 933 = 86.54%

178 = 8.59%

116 = 10.7%

50 = 2.41%

21 = 1.94%

Annual 2.752 = 87.3% 294 = 9.3% 71 = 2.2%

8 = 0.38% 16 = 0.77%

8 = 0.74%

8 = 0.2% 24 = 0.7%

2.071

1.078

3.149

Centre Olame shows how grave the situation is with the total number of 3,149 perpetrators raping about 1.51 victims by 2005, and Centre Olame points that this equation means that each victim on average was raped by 2.51 perpetrators.300 Centre Olame continued to report in 2006 on the same trend of rapes and violators, as well as the consequences of rape such as pregnancies and children being born.301 During 2006 the perpetrators of the rapes according to the victims were:302

299 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005: The women themselves refer to the perpetrators as “les Rwandans dans la fôret”, meaning the Rwandanese in the forest which is the local name for the Interhamwe. 300 Archidiocèse de Bukavu, Centre Olame, Service d’Écoute et d’Accompagnement des Femmes Traumatisées (SEAFET), Rapport narrative des activités. “Projet triennal d’accompagnement psycho-social-médical des femmes victimes de la guerre dans l’Archidiocèse de Bukavu 2005-2007.” No 115/ 10073 A, Première année: 2005 301 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 302 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Rwandans in the forest FARDC Nkunda Mai-mai “106” Others

January 135 2 2 1

February 93 9 5 -

March 181 4 21 3

April 164 24 4 4 4

140

107

209

200

May Rwandans in the forest 266 FARDC 13 Nkunda Mai-mai 1 “106” Others 7

June 198 5 13 2 -

July 69 7 2 1 -

August -

September 3 1

287

218

79

-

4

October Rwandans in the forest FARDC Nkunda Mai-mai “106” Others

November 3

December 4

Total 1.127

% 88.7

11 5

1 -

-

65 45 15

5.1 3.5 1.1

1

-

1 -

1 17

0.07 1.3

17

4

5

1.270

100

During the year of 2006, Centre Olame reported that the Rwandans in the Forest, as the women call them, were a constant problem during the whole year as the rapes continued to be committed.303 They are the worst perpetrators of rape and torture in the region. It is very difficult to register their real identity as they continue to remain in the bush most of the time and their chain of command has not been known.

303 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006.

1111

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Centre Olame registered the types of illnesses and infections that the women that they had accommodated and looked after during the whole year of 2006 had experienced. They included prolapsus, incontinence, HIV/AIDSs, genital candida, syphilis and vaginal trichomomas.304 The most recent victims of rape were the largest number of victims.305 The risk of getting infected by the HIV virus depends very much on ignorance about both the disease and how one gets infected as well as the difficulties with access to medical care. One case that Centre Olame talks about reveals the consequences of rape in a community. One woman was 22 years when she was raped in the province of Shabunde in May 2005, at the same time as four of her sisters-in-law.306 The young woman got pregnant as a result of the rape and she went through a very difficult pregnancy which reduced her physical movements and she could not work. She was sent back to her own original family at the order of her husband. She gave birth in the beginning of 2006, while her health continued to deteriorate. The baby was not born healthy and died seven months after birth. The young woman was treated by traditional means, but was taken to Bukavu where it was discovered that she had been infected by HIV as a result of the rape. Centre Olame meant that one needs to take into account that there were five perpetrators that raped five women between them and the end result most probably was that all the women got infected by the HIV/AIDSs virus, spreading it in the whole community. Centre Olame explains that about 35 per cent of the people in the communities know about the human rights of women.307 As a result Centre Olame teaches the women who have been victimized their human rights and duties in the communities. In addition, Centre Olame means it is equally important to teach the women about the dignity and identity of the woman, and to teach about what it means to be a healthy and harmonious couple. Centre Olame has through its work importantly found that 75 per cent of the women come out of their trauma, and the Centre organizes listening sessions where the women can become de-traumatized.308 Ninety per cent of the acts of 304 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 305 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 306 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 307 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 308 Archidiocèse de Bukavu, Rapport Narratif des Activités, projet triennial d’accompagnement psycho-socio-médical des femmes victimes de la guerre dans

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rape are denounced. Finally, Centre Olame underlines the importance that one continues to monitor and register the acts of violence that are being committed against the women and girls. 12.8.

Treating Survivors of Sexual Violence

12.8.1.

The HEAL Africa Hospital, Goma, North Kivu, the Democratic Republic of Congo

In South and North Kivu in the Democratic Republic of Congo several organizations have developed programmes for helping the women and girls who have been raped or in other ways sexually abused. The HEAL Africa hospital in Goma in North Kivu is one such organization, which has established safe houses for the women and girls where shelter, counselling, and literacy and vocational training are being provided.309 The hospital has trained 320 counsellors on how to be able to identify those who have been raped and sexually abused and on how to assist the survivors of sexual violence. In 2009 there has been an increase of sexual violence as in the three first months of the year alone 1,590 survivors of sexual violence were treated by the HEAL Africa hospital.310 The staff of HEAL Africa goes to all areas of North Kivu to offer medical care and give supplies. On one such mission the staff found 17 sex slaves whom they managed to free, and they were also able to offer medical and psychosocial care to other civilians who had been raped.311 Of these 1,590 victims of sexual violence, the staff of the HEAL Africa hospital were able to find 38 per cent of the survivors within 72 hours of the time of the rape, and were able to treat the victims with post-exposure prophylaxis (PEP) which is being used to prevent HIV transmission.312 Of these 1,590 victims, 30 per cent were under the age of 18, and 83 suffered a fistula. The perpetrators of these documented rapes were both civilians and armed groups, where people in the community as perpetrators accounted for 24 per cent and the armed groups for 76 per cent.313 In its work to prevent rape from occurring and to protect the survivors of sexual violence, the HEAL Africa hospital engages with community leaders, l’archidiocèse de Bukavu 2005-2007. No. 115/ 10073 A. Deuxième année 2006. 309 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims 310 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/ 311 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/ 312 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/ 313 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/

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churches and different organizations all over North Kivu.314 The extent of the work that the hospital is engaged in is reflected in the fact that HEAL Africa worked with about 1,400 community and faith leaders during three months alone in 2009, in addition to having organized 117 community meetings out in the different villages with the aim of providing the people with education about both the available medical treatment that exists for rape survivors as well as information about the judicial remedies that are available.315 HEAL Africa’s work in the community also includes working with the schools, and providing training on gender relations to primary and secondary school teachers.316 The training consists of teaching a curriculum that uses drama, music, games and readings to engage the children in gender related discussions. The rationale behind this training is according to HEAL Africa that children learn at a very young age about gender relations and equality, and that later on in school the children receive an education that influences the attitudes the children have about gender. Therefore it is very important to teach the children early on about gender equality in order to reduce further gender-based violence in the future. Joseph Ciza of HEAL Africa explains that HEAL Africa staff have visited different health centres in the villages in North Kivu over the years in order to train the people working in these centres in how to treat victims of sexual violence since they did not know how to do this.317 As a consequence from not knowing how to treat these patients, they instead neglected all the cases of sexual violence. In addition, there are rebel commanders who have invited Joseph Ciza to talk to their troops about the consequences of sexual violence and HIV/AIDS.318 Since many women are and have been stigmatized for having been exposed to rape and sexual violence when they return to their communities, HEAL Africa through its Nehemiah Committees works on how to develop a more understanding and caring response by the community.319 In the respective communities the 314 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/ 315 HEAL Africa, Increase in sexual violence, accessed August 1, 2009, http://healafrica.org/cms/news/increase-in-sexual-violence-victims/ 316 McConnell, H., Responding to Rape in Congo: the Way Forward, March 3, 2009, Humanitarian Relief, www.humanitarianrelief.change.org/blog/view/responding_ to_rape_in_congo_the _way_for... 317 HEAL Africa fi lm on Youtube accessed through HEAL Africa’s website August 12, 2009, http://healafrica org; this fi lm was from before the Presidential elections in 2006. 318 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 319 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Committee members work to have an open dialogue about the attitudes about women and about the communities’ treatment of women, and they discuss what the community needs to change for not only the health of the woman but for the whole community.320 The women are referred to the Safe Houses by the Committee members and sometimes are also being taken care of in the homes and churches of the members. The rape counsellors live in the community and are themselves affected by the war in different ways such as through displacement. HEAL Africa’s selection process for being able to receive its training on how to work as a counsellor for survivors of sexual violence is conducted in such a way that the women are identified and selected by Nehemiah Committees.321 After the training, the rape counsellors can give medical referrals to rape survivors to the HEAL Africa hospital and help the survivors all through the process of healing. There are 70 Nehemiah Committees located in 70 different villages, and every Committee has ten people who come from different tribes and religious dominations, and the communities have in turn nominated these ten people.322 The Nehemiah Committees are to watch over the most vulnerable in the community, to strive for reconciliation through dialogue and community service and to give information to HEAL Africa. Most importantly as Joseph Ciza states “the Nehemiah Committees and counsellors prove it is possible for a Muslim and a Christian or for people from different tribes to work together for peace. They show their faith communities that we must care for those who are sick with HIV or who have been raped and not cast them out.”323 The HEAL Africa hospital is specialized in fistula repair operations and orthopaedic surgery, and about 120–150 women are always waiting to have a fistula repair operation.324 Many women need to have a fistula surgery performed as a consequence of having been raped, or from difficult labour complications when giving birth which are usually due to the lack of pre-natal care. In the context 320 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 321 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 322 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 323 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 324 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009

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of DRC, many women work in the field and with a fistula condition it becomes nearly impossible for them to work and gain an income.325 In order to address this issue of lack of income, HEAL Africa has established the Healing Arts programme at the hospital which gives classes in sewing, literacy, small business and financial training.326 As a result, while the women are at the hospital for care, they are at the same time given training and an opportunity to earn a living, and upon their return home the hospital gives the women a micro-grant so that they will be able to develop their newly adopted skills. The lack of health care for women in DRC did not start with the war; there are women who have had a fistula condition for 35–40 years.327 The lack of institutional health care, medical material and medicine as well as having to work under horrific conditions with grass mats as beds and with broken and blood soaked operating and delivery tables hinders the delivery of functional medical care.328 The lack of rural health care capacity and the non-existence of standardized health institutions make it very difficult to provide treatment to the survivors of sexual violence out in the villages.329 Very little is needed to be able to improve the delivery of workable health care in these rural areas though. As an example, it is possible to treat women immediately for a fistula condition just by investing in rural health care and to provide training in health care, and in this way women do not have to go through neither the physical difficulties, nor the years long stigmatization and rejection from community members, as a consequence from a fistula condition and/or having been raped.330 Importantly HEAL Africa means that the community members need also to be engaged in defining the priority issues regarding the provision of health care in their areas in order for these is-

325 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 326 McConnell, H., Deconstructing sexual violence in Congo, Humanitarian Relief, February 10, 2009, http://humanitarianrelief.change.org/blog/view/deconstructing_sexual_violence_in_congo, 8/1/2009 327 Kimona, C., Dr, McConnell, H., Responding to Rape in Congo : The Way Forward, March 3, 2009, http://humanitarianrelief.change.org/blog/view/rsponding_to_ rape_congo_the_way_for..., 8/1/2009 328 Kimona, C., Dr, McConnell, H., Responding to Rape in Congo : The Way Forward, March 3, 2009, http://humanitarianrelief.change.org/blog/view/rsponding_to_ rape_congo_the_way_for..., 8/1/2009 329 Kimona, C., Dr, McConnell, H., Responding to Rape in Congo : The Way Forward, March 3, 2009, http://humanitarianrelief.change.org/blog/view/rsponding_to_ rape_congo_the_way_for..., 8/1/2009 330 Kimona, C., Dr, McConnell, H., Responding to Rape in Congo : The Way Forward, March 3, 2009, http://humanitarianrelief.change.org/blog/view/rsponding_to_ rape_congo_the_way_for..., 8/1/2009

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

sues to be adequately addressed.331 With sexual violence being such a huge issue in the communities in the context of very poor health care, HEAL Africa argues that the whole societal structure collapses when the health issues of women are not addressed, and therefore the HEAL Africa hospital in its work with the communities does not want to focus merely on how to make the delivery of the health care of women better, but does also want to openly talk about how women are being treated and the reason to why sexual violence has become so prevalent. As explained by Dr. Rosette of the HEAL Africa hospital, the relentless sexual violence being committed in DRC is a reflection of a situation where everything that was forbidden before has exploded into some sort of acceptability.332 “It is like the whole world has lost its head”, she argues, and means that it is as a direct consequence of the prolonged war that the life of a woman does not count anymore.333 Dr. Rosette and her colleagues are providing care to the countless women and girls who have been raped and sexually abused, and say that even though many women come to this hospital after having been raped, it is still just the tip of the iceberg.334 She says that the majority of the women who are being raped are between 18 and 20 years of age, however also children as young as two years old and elderly women who can no longer walk are brought to the hospital after having been raped.335 Dr. Rosette has treated about 2,000 women and girls who exhibit much pain in their lower abdomen, different types of gynaecological infections due to the sexual violence, cases where the whole genital area has been totally destroyed, and many are suffering psychologically. Since many women become pregnant as a consequence of the rape, many would also like to have an abortion. However, in DRC abortion is not legal.336 Dr. Rosette says that the communities and the husbands often reject the women and that they are stigmatized. She means that the husbands feel humiliated by their women having been raped and by the fact that they might be infected with HIV. Dr. Rosette notes that two or three women out of ten have become infected by HIV, and that more than half of the women have become infected with other sexually transmitted diseases

331

Kimona, C., Dr, McConnell, H., Responding to Rape in Congo : The Way Forward, March 3, 2009, http://humanitarianrelief.change.org/blog/view/rsponding_to_ rape_congo_the_way_for..., 8/1/2009 332 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009, French text translated by the author. 333 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 334 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 335 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 336 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009

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as well as with syphilis.337 She continues saying that all the combatants without exception commit rape and sexual violence of the women and the little girls. She has also noted that there is a new growing trend where young boys have been sexually violated, and says that of all the rape victims that her hospital treats, about 10 per cent are boys between 10 and 20 years of age. The perpetrators use knives, weapons and many other different objects when they commit the rapes, and one of their patients was a 10 year old girl who had gotten corn cobs inserted into her vagina. She explains that “the act of rape is no longer a weapon of war, it has become a banal act”.338 She also means that the violence against the women has today infi ltrated the civil society to the extent that the women do not count anymore, saying that the women and the different acts of sexual violence as well as the domestic violence are only at the periphery of the different war battles. 12.8.2.

The Consequences of Sexual Violence in the Democratic Republic of Congo

As Dr. Denis Mukwege of the Panzi Hospital in Bukavu, South Kivu in the Democratic Republic of Congo says it is necessary to find another vocabulary for sexual violence, because the term “sexual violence” does not adequately explain what is happening.339 He has come to the conclusion that sexual violence is a method in order to terrorize the victims and that it is not focused on sex and power and/or sex and desire. He also points out that there is a need to discuss the types of rape that already existed in DRC before the war since the use of rape as a form of punishment existed in the villages. He means that the rape that is being perpetrated in front of the families and villages are rapes of torture including psychological torture. He argues that the woman is injured in an area that she cannot expose and that this is a reflection of what then can be seen when the woman comes to the Panzi hospital with her genital area destroyed by weapons and knives. He means that girls as young as 13 and 14 years of age come to the hospital and while they are too young to have children their dreams as women are totally destroyed as their femininity is destroyed. In addition to the physical injuries, the illnesses and infections that are being transmitted through the rape and sexual violence can destroy the genitals, however in some cases since the genitals have already been physically destroyed because of the rape it is too late. Dr. Mukewge means that as a result of the destruction of the genitals the woman

337 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 338 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 339 Dr. Denis Mukwege, Panzi Hospital, Bukavu, DRC, presentation at the seminar Gender-Based Violence in DRC, Woodrow Wilson International Center for Scholars, Washington D.C., April 2, 2008, Translated from French by author.

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

is incapable of taking care of her femininity, she is not able to show her femininity and she cannot have children. On the psychological level the public rapes are deeply humiliating and women develop psychological problems that in many cases lead to suicide.340 Dr. Mukwege explains that as if having endured the rapes was not enough the woman is often rejected by her husband and family and that this exclusion naturally aggravates the troubles for the woman. In many cases the woman finds a place with the displaced, which has consequences for the communities as the reproductive cycle of so many women is destroyed, together with the fact that HIV/AIDS is being spread and that there are no women left who are able to have children. As Dr. Mukwege has observed the rapes are not out of desire; they are out of a desire to destroy the woman. This is in a context where the perpetrators know that rape multiplies the risk for HIV/AIDS, and they know what they are doing. So many of the rapes are being systematically carried out without regard for the different ages of the women as the ages range from 3–100 years of age, which in Dr. Mukwege’s view constitutes the setting up of traps with the intent to spread contamination. He continues that the perpetrators are not interested in these women but that they want to destroy the women, children and the communities. The whole conception of what it means to be a parent has been destroyed, and the consequences for the families are that they live with a sense of guilt and fear. The men as husbands are many times completely destroyed as they have not been able to protect their wives, and they have a lot of guilt and in the relationship to the wife they many times develop impotence. This in turn leads to the wife believing that her husband is rejecting her. So in the end Dr. Mukwege argues, the rapes also result in the destruction of the men as well, as the men do not have any confidence in themselves neither as a husband nor as a man anymore. The Panzi hospital takes care of the worst traumatized women and does surgery and other smaller medical centres take care of the other cases (not all women have access to health care). In the last ten years the Panzi hospital has treated about 20,000 women, which is the tip of the iceberg, as there are so many other cases that have not reached the hospital.341 As a result of the many cases, the hospital workers can now tell which group has perpetrated the rape as each group has its own methods. The rapes are done consciously and on purpose and the Panzi hospital has found that the rapes are perpetrated in an organized and conscious way. There are also groups that rape men. Dr. Mukwege underlines that one must really look at the problems, some groups cut the lower parts of the body, other groups burn the genitals, one group rapes men in front of their families. 340 Dr. Denis Mukwege, Panzi Hospital, Bukavu, DRC, presentation at the seminar Gender-Based Violence in DRC, Woodrow Wilson International Center for Scholars, Washington D.C., April 2, 2008; Translated from French by author. 341 Dr. Denis Mukwege, Panzi Hospital, Bukavu, DRC, presentation at the seminar Gender-Based Violence in DRC, Woodrow Wilson International Center for Scholars, Washington D.C., April 2, 2008, Translated from French by author.

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The United Nations peacekeeping mission in DRC, MONUC (now MONUSCO), has the mandate to protect the population in North and South Kivu but fails totally to do so when it comes to the rape and sexual violence being committed. For the Panzi hospital it has taken two–three weeks to get MONUC’s (now MONUSCO) help to bring a woman from a village to the hospital in Bukavu because there has not been any coordination with MONUC (now MONUSCO).342 The Panzi hospital cannot access certain areas because it is too dangerous and as a hospital they do not carry weapons. They have needed MONUC/MONUSCO to provide transport of and security to some of its patients. For instance with regards to child soldiers the child protection officer at MONUC/MONUSCO works together with the many different NGOs that work with child soldiers, such as Save the Children. In some cases Save the Children’s child protection officer gets to know about child soldiers to pick up in a certain village, and if it is not possible for Save the Children to pick up the child due to security or that it is during night time then the Save the Children officer phones the child protection officer at MONUC/MONUSCO, who in turn alerts the individuals within the mission who are the closest to the child and who can pick up the child, which if possible is done directly.343 After the child has been picked up, the MONUC/MONUSCO child protection officer contacts the child protection officer of Save the Children who in turn picks up the child to drive the child to a child centre for former child soldiers. However, this procedure has been only for child soldiers and not for children who have been raped. 12.8.2.1.

Who Are the Perpetrators in the Democratic Republic of Congo?

A few perpetrators in DRC have been interviewed about their criminal behaviour, and there is some information beginning to surface as to why both boys and men have accepted to participate in raping women and girls in North Kivu. In one interview, a 29 year old man, Bienda, from Goma, said that he had been a member of a militia group during most of his teenage years and his 20s, a total of six years, and that he now recognized that what he had done was “evil”, but at the same time he did not show any remorse for the rapes he had committed.344 He explained that “we didn’t care about the age”, and that “some were children, others were older women. The oldest was 60 years old … I even raped a two-yearold girl.”345 He continued that “rape was a way we used to get payment from the 342 Dr. Denis Mukwege, Panzi Hospital, Bukavu, DRC, presentation at the seminar Gender-Based Violence in DRC, Woodrow Wilson International Center for Scholars, Washington D.C., April 2, 2008, Translated from French by author. 343 Case experienced by author on a visit to Goma, DRC, May 2007 344 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 345 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

work we were doing at the time. It was a way of rewarding ourselves …We didn’t think about the women.”346 Bienda says that he thinks that he raped about 40 women and children, and now he himself is a father of two, a son who is six and a girl who is two. He met his wife and the mother of the children when he was in the militia; her family was forced by him to let him take their daughter, and they have been married for a little more than a year. Now he admits that it was wrong to force her and her family to go with him and says “I have asked for the family’s forgiveness”, continuing “I even paid the bride price: 12 goats, a scarf and a suit for her father … Three days before I was married, I went to church to confess. My wife knows what I used to be.”347 He and members of his militia group took pictures of some of the rapes, and his wife found these pictures and burned them. He said “I was very angry. I would have preferred to keep them. It was part of my life. It was a souvenir.”348 While Bienda is not afraid of the police coming after him and he does not risk standing trial for all of his crimes in the context of the flagrant impunity, he is interestingly enough still worried about the reactions of the community as he says “[m]y problem is not about the police haunting me, but about the people I raped or their families coming after me”.349 Augustin Changwi from North Kivu was also interviewed about the rapes he had committed during the conflict, and he was recruited into a militia group when he was 13 years old and he stayed with the group for six months when he managed to escape from the group.350 Changwi is haunted by what he did and thinks that he committed more than 80 rapes during his time in the militia. He says now that “these women were involved in something they did not accept” and that “they will feel sad about it for the rest of their life … Too many of them were hurt.”351 These two men, Bienda and Changwi, today participate in a church programme where they give antirape sessions for men. Changwi is changing and says that in these sessions “I teach them about respecting the women’s dignity” and that this “is a way of discharging and taking the burden off me. I would like to ask forgiveness from these women … My way to ask forgiveness is to sensitize other people about it.” Bienda explained that it was the young girls that his militia group deliberately targeted because they were “fresh”. As he continues “it was all about fantasy. When you 346 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 347 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 348 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 349 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 350 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 351 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404

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see a little girl growing, you think that she is fresh. She must be nicer than an older woman…”352 He says that one reason as to why he took the decision to stop raping was that he had raped one of his cousins: “Once we raped a girl and, in the morning, we went around the village and I knew many people. The girl was my cousin. That is one of the reasons to I decided to stop.”353 This shows that among the many perpetrators there are at least some who fear repercussions, if not from the judicial system, at least from the community. This indicates that the fear that so many victims feel about speaking out and coming forward as a witness might be possible to lessen when some more stability has returned to the communities. Today the focus is on the perpetrators taking revenge on those who dare speak out, which is a fact that is occurring, however maybe there is a need to see it in another way as well, that is, the perpetrators being afraid of revenge taken out on them because of their criminal activities by the community. This apparently is the case in DRC given the abovementioned quotes, however whether this is true also for countries such as Colombia, Afghanistan and Darfur might be an open question. This in turn shows the need for a total overhaul of dysfunctional and corrupt judicial systems and that the focus should be on combating impunity by strengthening the institutions for the police and court. 12.9.

The Issues of Trauma, PTSD Symptoms, Sexual Violence and Reconciliation

It is important to acknowledge that violence against women, men and children committed in armed conflict does have several consequences for the individuals apart from physical consequences such as injuries. Studies conducted of former child combatants in Uganda and DRC, and of adults in Rwanda, have shown that there is a link between PTSD symptoms and reconciliation, and that in the Rwandan case this was especially true with regards to having been exposed to sexual violence. The study for Rwanda found a connection between high levels of PTSD symptoms and having been exposed to rape and sexual violence, which also a study in Liberia of former adult combatants, women and men, showed. 12.9.1.

Study of Former Child Soldiers From Uganda and the Democratic Republic of Congo With PTSD Symptoms and Their Attitudes Toward Reconciliation

A study was carried out in 2005 of former child soldiers aged 11–18 years from Uganda and DRC who had all been forcibly recruited between the ages of 5–18 352 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404 353 Brisbane Times, Rape as a way to get payment, a way of rewarding ourselves, June 27, 2009, www.brisbanetimes.com.au/action/printArticle?id=606404

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years of age.354 These children lived in rehabilitation centres at the time of the study, and had on average been active as child soldiers for about 38.3 months. Of the participants, 83.4 per cent were boys and 16.6 per cent girls, 23.7 per cent had received no education, 74 per cent had received primary level schooling and 2.4 per cent had received secondary schooling.355 The children had been exposed to and experienced very high levels of violence and the most frequent traumatic war events were: witnessed shooting (total 92.9 per cent); witnessed someone wounded or killed (total 89.9 per cent); having been seriously beaten (total 84 per cent); had to fight (total 73.4 per cent, girls 32.1 per cent); personal properties looted during attack (total 72.8 per cent); family member/friend killed during attack (total 71 per cent, boys 70.2 per cent, girls 75 per cent, in Uganda 58.6 per cent, in DRC 77.5 per cent); were threatened to be killed or seriously hurt (66 per cent of the boys, 92.9 per cent of the girls, 96.6 per cent in Uganda and 56.8 per cent in DRC); witnessed a child being wounded or killed (total 68.8 per cent, boys 66.7 per cent, girls 78.6 per cent, in Uganda 79.3 per cent, in DRC 63.1 per cent); had to loot properties (total 55.6 per cent, boys 59.6 per cent, girls 35.7 per cent, in Uganda 55.2 per cent, in DRC 55.9 per cent); killed someone personally (total 54.4 per cent, boys 61 per cent, girls 21.4 per cent, in Uganda 36.2 per cent, in DRC 64 per cent); had to punish other children (total 53.8 per cent, boys 56 per cent, girls 42.9 per cent, in Uganda 55.2 per cent, in DRC 53.2 per cent); were forced to engage in sexual contact (total 27.8 per cent, boys 22 per cent, girls 57.1 per cent, in Uganda 27.6 per cent, in DRC 27.9 per cent).356 Of all the children who participated in the study, over 34.9 per cent showed PTSD symptoms which is a lower number than a prior study showed.357 Interestingly it was not possible to establish a strong connection between traumatic experiences and PTSD symptoms, nor between the types of exposure and PTSD symptoms. But the study importantly established that the children who did show PTSD symptoms were not as open to reconciliation compared to the children who exhibited fewer PTSD symptoms and they also notably harboured 354 Bayer, C.P, Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5):555-559 355 Bayer, C.P, Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5):555-559, p. 557 and Table 1. Demographic and Social Variables 356 List not exhaustive, Table 2. Type and Reported Frequencies of Traumatic Experiences, Bayer, C.P, Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5):555-559, p. 558 357 Bayer, C. P., Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5): 555-559, p. 558

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stronger feelings of revenge.358 The authors of this study argued that the reason for these results might be that the ability of the children to handle and go through strong feelings such as hate and revenge could be impeded by the posttraumatic stress they suffered from.359 Furthermore, they also argued that in order to regain their personal integrity and come through the traumatic war events, these children with PTSD symptoms could deem retaliation to be the best response. Bayer et al. meant that this finding shows that in the context of post-conflict situations and in the work of long-term peace building it is necessary to also examine posttraumatic stress as it could be a factor in cycles of violence.360 Furthermore as was showed, posttraumatic stress may also be a factor in reconciliation. 12.9.2.

Study From Rwanda of People Shown To Have PTSD Symptoms and How This Affects Their Attitudes Toward Justice and Reconciliation

A study of 2,091 adults between18 and 94 years, of which women constituted 51.5 per cent, was conducted in Rwanda in February 2002 with the purpose of assessing the level of trauma exposure and the prevalence of posttraumatic stress disorder symptoms, PTSD, as a result of the genocide in 1994, and whether this had any consequences for people’s attitudes toward justice and openness to reconciliation.361 Of the participants, 89.2 per cent stated their ethnic identity, 26.7 per cent had received no schooling at all, 56.2 per cent had received some primary schooling, 15.4 per cent had received some secondary schooling, and less than 2 per cent had received some university education.362 The researchers evaluated symptoms of PTSD, attitudes toward reconciliation, attitudes toward justice, which included the Rwandan national trials, the Gacaca trials, and the International Criminal Tribunal for Rwanda (ICTR), demographic factors and exposure to seven traumatic events (property destroyed 358 Bayer, C. P., Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5): 555-559, p. 558 359 Bayer, C. P., Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5): 555-559, p. 558 360 Bayer, C. P., Klasen, F., Adam, H., Association of trauma and PTSD symptoms with openness to reconciliation and feelings of revenge among former Ugandan and Congolese child soldiers, JAMA, 2007, 298(5): 555-559, p. 558-559 361 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 602 and 605 362 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 605

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

or lost, being forced to flee, serious illness, a close family member killed, a close family member died from illness, sexual violence and physical injury), also attitudes on ethnicity regarding those situations whether a person felt comfortable with a member of another ethnic group, which was termed “ethnic distance”, and finally attitudes toward reconciliation.363 The researchers’ definition of reconciliation was “the processes whereby individuals, social groups, and institutions (1) develop a shared vision and sense of collective future (‘community’); (2) establish mutual ties and obligations across lines of social demarcation and ethnic groups (‘interdependence’); (3) come to accept and actively promote individual rights, rule of law, tolerance of social diversity, and equality of opportunity (‘social justice’); and (4) adopt non-violent alternatives to conflict management (‘non-violence’).”364 Of the 2,091 participants from the (then) four communes, Ngoma, Mabanza, Buyoga and Mutura, (10.7 per cent had not lived in Rwanda before 1994, and 72.8 per cent were displaced during 1994) 24.8 per cent exhibited PTSD symptoms.365 Of these 24.8 per cent with PTSD symptoms, 92.8 per cent had been in Rwanda during the genocide and 7.2 per cent had not been in the country as most had lived as refugees in the Democratic Republic of Congo and Burundi. The respondents, 23.9 per cent, from Ngoma were reporting the highest incidents of sexual violence of all four communes.366 Women showed higher levels of PTSD symptoms compared to men with 29.7 per cent to 19.6 per cent, of which 56.8 per cent overall had recurring thoughts and re-experiencing symptoms (one or more), 43.2 per cent had avoidance/numbing symptoms (three or more), and 25.7 per cent had hyperarousal symptoms (two or more).367

363 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 603-604 364 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 604 365 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 605-607: Author’s note, communes have now been reorganized into districts and municipalities, http://statoids.com/Yrw.html 366 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 606 367 Table 2. Adverse Events During the 1994 Genocide and Its Aftermath, PTSD Symptoms, and Attitudes Toward Judicial Responses and Reconciliation, Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 606-607

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The strongest predictors of symptoms of PTSD encompassed four groups: sociodemographic characteristics (age, sex); cumulative traumatic exposure (more than one event); proximity to conflict (being in Rwanda in 1994 and commune of residence); and ethnicity and ethnic distance.368 The study revealed that:369 – – – –

The more the individual was exposed to traumatic events, the greater the likelihood of reporting PTSD symptoms; Women were more likely to have symptoms of PTSD than men; Those who were in Rwanda before 1994 were more likely to have PTSD symptoms than those who were not; The Tutsi were more likely to meet symptom criteria for PTSD than those selfidentified as Hutu.

Of all the respondents, 90.8 per cent had positive attitudes towards the Gacaca trials, 67.8 per cent had positive attitudes towards the Rwandan national trials and 42.1 per cent supported the ICTR.370 Concerning openness to reconciliation, 64.7 per cent said they were able to be interdependent with the other ethnic group, 63.6 per cent were for achieving social justice, 48.2 per cent were for the idea of community, and 44.6 per cent were against the use of violence for conflict management.371 However the study revealed that the respondents who had PTSD were “less likely to have positive attitudes toward the Rwandan national trials”, “less likely to believe in community”, and “less likely to support interdependence” with other ethnic groups, which was in contrast to the individuals who did not show symptoms of PTSD.372 368 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 607 369 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 608 370 Table 2. Adverse Events During the 1994 Genocide and Its Aftermath, PTSD Symptoms, and Attitudes Toward Judicial Responses and Reconciliation, Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 607-608 371 Table 2. Adverse Events During the 1994 Genocide and Its Aftermath, PTSD Symptoms, and Attitudes Toward Judicial Responses and Reconciliation, Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 607-608 372 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004;

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

Furthermore, the study showed that the respondents with “cumulative trauma exposure” were more positive toward the ICTR, were less likely to support the Rwandan national trials or the Gacaca trials, and less supportive of non-violence, community and interdependence.373 Factors that were associated with attitudes toward the judicial processes and openness to reconciliation included: “educational level, ethnicity, perception of change in poverty level, access to security as compared with 1994, and ethnic distance”, and it was shown that:374 –

–

[A] higher level of education was associated with less support for all the 3 judicial responses: ICTR, the national Rwandan trials and the gacaca trials, and less openness to reconciliation (interdependence, community and social justice). Those with more education were less likely to have positive attitudes toward any of the 3 judicial responses and less likely to support community and interdependence; [T]hose who perceived that the economic situation had improved since 1994 were more likely to support the national trials and the gacaca trials than those who perceived their economic situation to have worsened.

The study showed that trauma exposure was an important predictor of PTSD symptoms which reflects earlier research revealing a link between PTSD and “the level and type of traumatic events”.375 In this study participants from the commune Buyoga had significantly less levels of PTSD symptoms, which are most likely explained by that just a small area of the Buyoga commune was directly affected by the genocide.376 Furthermore, the study showed that personal factors, such as sex, age and ethnicity, are all connected to symptoms of PTSD.377 The women in Rwanda were exceptionally victimized by sexual violence, the elderly 292(5):602-612, p. 608 373 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 608-610 374 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 609-610, Numbers omitted. 375 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 376 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 377 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610

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were more vulnerable and not as strong because of age, and the Tutsi group was the main target of the genocide, and this could explain why these groups exhibited higher levels of PTSD.378 Also ethnic distance showed a relation to PTDS symptoms, and Pham et al. meant that here “fear of ‘the other’” could be linked to the consequences of having experienced traumatic events. The respondents who did not exhibit PTSD symptoms expressed more support for the Gacaca trials than for the national trials or the ICTR, which the authors argued could be because people know more about these trials and are more engaged.379 Pham et al. had in their earlier research found that the ICTR’s contribution to reconciliation was impeded by the “lack of reliable information” about the Tribunal among the population in Rwanda.380 The respondents with no PTSD symptoms also had higher levels of support for interdependence and social justice, but not much support for community and non-violence.381 Interdependence was determined by questions such as: “Have you had a drink with a member of another ethnic group? Or attended a funeral?” This finding reflected that people might be ready to at an individual level form relationships, without them amounting to “a shared sense of community” which would take more time to recreate.382 The study found that ethnicity was connected to PTSD symptoms and subsequently to “attitudes toward the ICTR and social justice”, which reflected that ethnicity continued to be a significant issue in Rwanda and affected the views of people.383 The more a person had experienced traumatic events, the more “negative attitudes” toward the Gacaca trials that person had and the person’s desire to reconcile was reduced, which the finding of less support for interdependence confirmed.

378 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 379 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 380 Research from 2002, Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 381 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 382 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 610 383 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 611

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

In conclusion those individuals who had symptoms of PTSD “were less likely to support the Rwandan national trials, to believe in the community, and to demonstrate interdependence with other ethnic groups”.384 As Pham et al. pointed out it is not possible to assume that there exists a positive association between judicial trials and reconciliation, or that the concept of justice means the same thing to people, because people’s attitudes towards reconciliation are dependent upon many different both personal and environmental factors which will have implications for the process of peace-building in conflict affected societies such as Rwanda.385 This study showed that how people view justice and reconciliation is related to the level and type of traumatic exposure and symptoms of PTSD they exhibit, and that therefore the effects of trauma need to be taken into consideration when working towards reconciliation. 12.9.3.

A Psychosocial Case Study in Liberia

A psychosocial study in Liberia of 1,666 adults who were 18 years or older was carried out in May 2008 and among its findings the study revealed that sexual violence was a significant predictor of PTSD symptoms.386 Of the 1,666 respondents 33 per cent had served time with fighting forces, and of these former combatants 33.2 per cent were female. It was shown that the former combatants, male and female, had experienced higher rates of exposure to sexual violence than noncombatants, with 42.3 per cent of the females and 32.6 per cent of the males. For instance 16.5 per cent of the men surveyed had been forced to be sexual servants or slaves, while 35.3 per cent of the women had been a sexual servant or slave.387 With regards to the former combatants the perpetrator in 87.1 per cent of the cases of sexual violence concerning female former combatants had been a soldier or a rebel, and the perpetrator of sexual violence concerning male former combatants was in 85.6 per cent of the reported cases also a soldier or rebel. The study did not reveal whether some of the former combatants had been child soldiers, 384 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 611 385 Pham, P. N., Weinstein, H., M., Longman, T., Trauma and PTSD symptoms in Rwanda: Implications for attitudes toward justice and reconciliation, JAMA, 2004; 292(5):602-612, p. 611-612 386 Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconflict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6 387 Table 2. Weighted Prevalence by Sex for 549 Former Combatant Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 682

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but 36.7 per cent of the male respondents said that they had originally been abducted or kidnapped to join the armed group, while 39.7 per cent of the females had been abducted or kidnapped.388 There had been several reasons for enlisting in an armed group, such as needing employment, shelter, food or friends pressuring to join, but only 6.9 per cent of the male respondents reported that they had wanted to enlist, and 1.1 per cent of the females said that they had wanted to enlist.389 Of the female former combatants, about 50.1 per cent had experienced intimate partner violence which included sexual violence, and 21.4 per cent of the male former combatants had experienced intimate partner violence which included sexual violence.390 The definition of intimate partner violence in this study was “beatings by a spouse or partner”.391 It was shown that the rates of the symptoms of post-traumatic stress disorder (PTSD), major depressive disorder (MDD), and suicide ideation were higher among former combatants than non-combatants and was markedly higher among those respondents who had experienced sexual violence versus those who had not. It was further shown that the prevalence of PTSD symptoms among female former combatants who had experienced sexual violence was higher, 74 per cent, than among those female former combatants who had not experienced sexual violence with 44 per cent.392 The prevalence of PTSD symptoms among 388 Table 2. Weighted Prevalence by Sex for 549 Former Combatant Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconflict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 682 389 Table 2. Weighted Prevalence by Sex for 549 Former Combatant Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 682 390 Table 3. Weighted Reproductive Health and Sexual Violence Means and Rates by Combatant Status for 1666 Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 684 391 Table 3. Weighted Reproductive Health and Sexual Violence Means and Rates by Combatant Status for 1666 Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 684 392 Table 6. Weighted Mental Health and Social Functioning Prevalences for 1666 Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 687

Gender-Based Violence Against Children, Young Women, and Women in Armed Conflict

male former combatants who experienced sexual violence was higher, 81 per cent, than both the female former combatants who had been victims of sexual violence and the male former combatants who did not experience sexual violence, 46 per cent. Both female and male former combatants who had experienced sexual violence also reported high rates of symptoms of depression (MDD), 64 per cent for males and 63 per cent for the females, and suicidal ideation, 25 per cent for males and 24 per cent for females.393 About 15.5 per cent of all the former combatants had not had any access to health care, while 56.8 per cent had some access to a health clinic, and 62.4 per cent of all former combatants had not had any access to mental health care, and 14.9 per cent had “received mental health counselling since war”.394 This study referred to another study in Liberia where sexual violence against women was found to be linked to having had to cook for a combatant, and while as this current study showed a connection between “poor mental health outcomes” and having been forced to do domestic labour, as well as that having been a scout or spy in an armed group was also connected to “poor mental health outcomes” for especially males, these mental health problems might in actuality be connected to having been exposed to sexual violence.395 There is much underreporting of sexual violence committed against women and girls in general, but this study reveals that sexual violence committed against men also is very much underreported. In sum the study revealed that both female and male former combatants had experienced sexual violence, and that there was a significant relationship found between sexual violence and PTSD symptoms for both sexes. This finding requires increased attention on sexual violence not only against women and girls, but also against men and boys. The fact that sexual violence can have profound mental health consequences, in combination with underreporting of sexual violence, most likely also results in many individuals suffering from mental health problems without receiving help and treatment because neither their experiences nor their reactions are known or acknowledged.

393 Table 6. Weighted Mental Health and Social Functioning Prevalences for 1666 Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconfl ict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 687 394 Table 5. Weighted Health Care Access by Combatant Status for 1666 Respondents, Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconflict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 686 395 Johnson, K., Asher, A., Rosborough, S., Raja, A., Panjabi, R., Beadling, C., and Lawry, L., Association of Combatant Status and Sexual Violence With Health and Mental Health Outcomes in Postconflict Liberia, JAMA, August 13, 2008-Vol. 300, No. 6, p. 688

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12.10.

Conclusion

These studies show that the result of the violence that the children, women and men experience in armed conflict at an individual level may indeed also have consequences at a societal level in that adults and children that have been exposed to certain traumatic events and as a result have PTSD were found to find it more difficult to reconcile. This shows how necessary it has become to acknowledge the trauma that some women, men and children suffer from in armed conflict and many times years afterwards and to understand its consequences. It is crucial to find ways to end rape and sexual violence against women and children in armed conflict and increasingly also against men, and to link the way a society views the status of the women and the child as reflected in existing laws, culture and customs, with their utter vulnerability in armed conflict, to having negative consequences also for the society. This means that reforms of laws, culture and customs to become more gender and child sensitive to respect the rights of the woman and the child are not just abstract ideals, but core instruments to positively develop a country and move away from a culture of violence, impunity and underpinning gender discrimination. What does sexual violence in armed conflict really represent? The woman is the creator and bearer of life, the woman gives life, gives birth to life, and these abuses reflect attacks on life itself. Since life itself is under attack, it naturally follows that the bearer of life gets attacked. The perpetrators attack life at its core this way. While sexual violence is a gender issue and involves issues of control and power, it has long gone beyond all of these issues in current conflicts where for instance in the Democratic Republic of Congo the level of the cruelty and violence exhibited goes further than anything known so far. The issue of sexual violence has developed into issues about how to sustain life and how to restore dignity in living and the value of life and life giving. For the perpetrators all of that is really lost. And since there is such a lack of action on behalf of anyone with the responsibility to prevent and protect women and girls from these crimes, even when the whole international community knows for sure that rape has been used in every conflict at a rate of enormous speed and cruelty, we should really begin with asking ourselves if life is worth preserving? If the answer is in the affirmative the sacredness of human life needs to be restored. In the destruction that follows rape and sexual violence, the value of life and the dignity of the human being needs to be reclaimed and restored.

13.

Armed Conflict, Transitional Justice and Children and Youth

Children and young people far outnumber adults in many countries requiring transitional justice, and to exclude them may exclude the majority of the affected population which is both counterintuitive and unproductive.1

13.1.

Introduction

The role of children and youth in transitional justice processes is much debated. However, child protection specialists and legal experts have come to the consensus that it is a legally binding obligation to have children participate in transitional justice processes, which upholds the right to be heard in judicial and administrative proceedings affecting them according to Article 12 of the CRC.2 As Siegrist argues, in the context that more than half of the populations that are affected by armed conflict are made up of children and young people and that they are often among the most victimized, from this follows that it is necessary for children and youth to be able to participate in transitional justice processes especially at the community level with regards to reconciliation and recovery in order to fulfil the aims of these processes.3 UNICEF-IRC gives two reasons why children should participate in transitional justice processes:4 1

2

3

4

Smith, A., Basic Assumptions of Transitional Justice and Children, Chapter 2, in Parmar, S., Roseman, M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, March 2010, p. 33 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman, M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, March 2010, p. 14 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman, M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, March 2010, p. 14 UNICEF-IRC, Children and transitional justice, Background, Updated on 5 March 2010, www.unicef-irc.org/knowledge_pages/resource_pages/children_and_transitional_jus...

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1.

2.

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 concept of “transitional justice” is explained by Freeman as constituting “how states in transition from war to peace or from authoritarian rule to democracy address their particular legacies of mass abuse”.5 The one single common characteristic in all countries facing such transitions is “the legacy of widespread violence and repression”.6 In these contexts it has not been possible for the existing courts and justice systems to deal with the many perpetrators and victims from years of violence which most often amounts to tens of thousands of both perpetrators and victims, also mostly in a context of corrupt justice systems. As a result other tools, responses and mechanisms have been needed in order to address this situation, giving rise to the need for different transitional justice mechanisms which consist of mainly four types:7 1. 2. 3. 4.

5 6 7

Trials – whether civil or criminal, national or international, domestic or foreign; Fact-finding bodies – whether truth commissions or other similar national or international investigative bodies; Reparations – whether compensatory, symbolic, restitutionary, or rehabilitative in nature; Justice reforms – including legal and constitutional reforms, and the removal of abusers from public positions through vetting or lustration procedures.

Freeman, M., Truth Commissions and Procedural Fairness, 2006, p. 4 Freeman, M., Truth Commissions and Procedural Fairness, 2006, p. 5 Freeman, M., Truth Commissions and Procedural Fairness, 2006, p. 5-6

Armed Conflict, Transitional Justice and Children and Youth

The UN Secretary-General in his report of 2004 on the rule of law and transitional justice in conflict and post-conflict societies provides a definition of “transitional justice”, which is widely used and reads as follows: 8 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, serve 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.

This definition is often referred to and is used by many child protection actors and specialists, including UNICEF-IRC, and the Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes adopts this definition in full.9 With regards to child-specific crimes where children have been victimized, there is a definite need for a focus on only crimes that have been committed against children in armed conflict because of the massive violations committed against children in every respect of their lives with impunity. While the war crime of child soldiering has been prosecuted by the Special Court of Sierra Leone and is being prosecuted by the ICC, cases concerning sexual violence have been brought up by for instance the International Criminal Tribunal for the former Yugoslavia, the Special Court of Sierra Leone and the ICC but they have not only focused on children, even if “girls” are mentioned at times, as a specific category of victims.10 Other crimes widely committed against children in armed conflict, such as killing and maiming, attacks against schools and education, and hindrance of humanitarian assistance (a crime which affects all children to whom such assistance is impeded), have not been taken up, while the ICC has heard 8 9

10

United Nations Security Council, Report by the Secretary-General, 23 August 2004, S/2004/616, para. 8 UNICEF-IRC, Children and transitional justice, Background, Updated on 5 March 2010, www.unicef-irc.org/knowledge_pages/resource_pages/children_and_transitional_jus...; Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes Outcome of Children and Transitional Justice Conference, Harvard Law School, Cambridge, Massachusetts, USA, 27-29 April 2009, The Key Principles II. Definitions, Annex, and Smith, A., Basic Assumptions of Transitional Justice and Children, Chapter 2, all in Parmar, S., Roseman, M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, March 2010 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 89, 91-92

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an educator from DRC testifying about child recruitment from schools and the impact of the armed conflict on children’s education in the Lubanga case.11 These all belong to the six priority violations committed against children that the 1612 MRM mechanism is to focus on, and efforts to link these violations to potential prosecutions could be a starting point as these priority violations have already been accepted by the international community. There is a great need to bring attention to the violations committed against children in armed conflict and to link these violations to the fact that the human rights of children before the eruption of armed conflicts have not only not been respected but many times fundamentally been lacking, and that in order to build up solid child protection, their rights that have been violated in war and crimes that are within the jurisdiction of national and international tribunals need to have a specific focus on violations committed against children. Many crimes are committed against children not only during an armed conflict that amount to international crimes for which international criminal jurisdiction apply. In this context Aptel underlines the need for the identification of “the systematic, widespread or endemic patterns of criminality affecting children” by international criminal jurisdictions, and that they also need to take on international crimes committed against children in other contexts than armed conflict, such as the targeting of children as part of a genocide campaign and enslavement of children, a crime against humanity.12 That this would lie within the mandate of international criminal jurisdictions has been recognized by the UN General Assembly in its three resolutions 54/149, 57/190, 60/231, where it has acknowledged the role of the ICC, stating that it “[r]ecognizes … the contribution of the establishment of the International Criminal Court to ending impunity for perpetrators of certain crimes committed against children” as well as it calls upon the members states in resolution 60/231 “[t]o protect children affected by armed conflict, in particular from violations of international humanitarian law and human rights law and to ensure that they receive timely, effective humanitarian assistance, in accordance with international humanitarian law, including the Geneva Conventions of 12 August 1949, and calls upon the international community to hold those responsible for violations accountable, inter alia, through the International Criminal Court”.13

11 12

13

See ICC-01/04-/01/06-T-225-Red-ENG WT12-01-2010 1/68 EA T Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 112 United Nations, General Assembly, Resolutions 54/149, A/RES/54/149, 25 February 2000, 57/190, A/RES/57//190, 19 February 2003, 60/231, A/RES/60//231, 11 January 2006; Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 112-113

Armed Conflict, Transitional Justice and Children and Youth

Smith poses the questions “why, who, what, when, where and how” with regards to transitional justice processes, and when discussing the broader issues regarding why there is a need for transitional justice, she points to the importance of the inclusion of children, their rights and their perspectives in such processes as they are permanent stakeholders of such processes as a result of them being the victims and witnesses in armed conflicts and usually the most disproportionately affected, and as them being active members of society and the inheritors and implementers of the outcome of a given transitional process.14 13.2.

Criminal Accountability of Crimes Committed Against Children in Armed Conflict I would like all the warlords to be brought to justice for bringing war and turning children’s heads around to behaviours that are not acceptable in society. – 24 year old woman, who at age ten forcibly joined NPLF, Monrovia, Liberia15

The issue of impunity is at the core of the violence committed against children in conflict zones worldwide. The concept of individual criminal responsibility is not well understood by most of the actors in the current conflicts. In a conflict situation the breakdown of governmental institutions such as the police and courts leads to that there is nowhere to turn for help and protection, and as a consequence nobody will be brought to trial. Th is is also many times in contexts with existing weak state institutions, corruption in the justice system and no or very limited knowledge and respect for human rights of anybody, and especially not of the children. However at the same time deliberate acts of violence do not automatically translate into poor awareness that certain acts are crimes, as many of these acts are still crimes in the respective countries, such as murder and rape. Impunity is instead one of the main reasons for the continuous carrying out of these violations. In this context there is a great need to train military commanders of armed forces and armed groups on child protection issues, as well as on the CRC since they show such ignorance of their own individual responsibility. As Stephen Blight from Save the Children has stated, children should be treated as victims of war and not perpetrators:16 The warlords are aware that they may have to answer tomorrow for crimes committed today and they believe that the use of children distances them from these acts. 14

15 16

Smith A., Basic assumptions of transitional justice and children, Chapter 2, p. 46-47, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 Save the Children, Fighting Back, Child and community-led strategies to avoid children’s recruitment into armed forces and groups in West Africa, 2005, p. 24 Save the Children, Treat Child Soldiers as Victims of Congo War, 16/06/2003

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The San Remo Institute provides training for military personnel from different countries in the world in international humanitarian law and human rights law.17 Here follows an account of military personnel from some countries that have been receiving this training and their comments on their culture in their countries as it relates to children and women and the challenges they have encountered while in the field. Burkina Faso’s army had operations in the war in Liberia, and an officer referring to those operations meant that special attention should be given to women and children in armed conflicts since grave violations of their rights were particularly the consequence of the nature of today’s conflicts.18 He linked the situation for women and children in armed conflict to how women and children were viewed in his society:19 [I]n our traditions we don’t pay special attention to women and children. No special legal protection. Most of our soldiers are illiterate and they come from an environment where modern rights of women and children, based on law, are practically non-existent. And we have had a kind of colonial spirit in our army … and for a long time we had a military regime, when military personnel could do as they pleased. So, for us specific training on women and children is essential.

He went on explaining how the women and children had been especially exposed to the activities of his army in Liberia:20 Regarding our experiences in operations in Liberia – the soldiers there included children, and we did not know what to do with them. And, often with women, soldiers thought they had a special right to them. So we have put in place special training on rights of the child. Our module is very recent (since 2000). There will be a meeting of 32 officials from ECOWAS countries and Save the Children Canada to put that training in place. The only aspect I disagree with is that this training on children is not incorporated into the general IHL training. I think it should be integrated. In Burkina we will incorporate it into IHL training.

17 18 19 20

Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 160 Kuper, J., Military training and children in armed conflict, Law, policy and practice, 2005, p. 206 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 206 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 206

Armed Conflict, Transitional Justice and Children and Youth

One army representative from Burundi stated that it was “absolutely necessary” to have special training for the army on the rights of women and children in armed conflict:21 Due to the nature of women and children they have protected status in normal life. But the training in international law is to teach personnel in combat to have the reflex to apply the law. To get that reflex … it is necessary to have specific training regarding women and children. There must be a way of organising specific training on women and children, so the army has the appropriate reflexes.

Another army representative from Burundi further explained that:22 Protection of women and children is necessary. Totally indispensable, as we have seen violations in the field. We work on an ethnic basis in Burundi. The army must train, eg, to protect civilians. If the national army harms civilians, the population will turn to the rebels. So we must educate our troops.

A French army representative pointed out that:23 Sometimes it is not easy to distinguish between combatants and non-combatants. It can be even more difficult to distinguish between adult and child. We can talk, eg, of children 12–16, and then 16–18 – just judging from appearance. They may well not have any ID. There is a problem at specific situations, eg at checkpoints. Children are more dangerous, they can’t tell reality from a game. Not only do they need special protection, they need special caution! One can negotiate with adults but not children.

One representative from the UK also discussed the difficulties with children taking part in hostilities:24 In combat, I’m not sure that children should have special treatment. For example, in Sierra Leone UK forces were taken hostage. There was a firefight to release them – some quite young people were killed. That is legitimate. No difference if they are 10

21 22 23 24

Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 207 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 207 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 208 Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 212

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or 40, in my opinion. However, once child soldiers are captured – eg in Sierra Leone – I think they would be treated differently.

The ICRC has provided training on IHL and on human rights to both officers of the SLA (Sri Lankan Army) and to LTTE in Sri Lanka.25 Between 1997 and 2000 about 125 SLA servicemen had received training on humanitarian law, while in a sample 98 per cent of army service men responded that they thought that training on international humanitarian law was “very important”.26 However already “by the end of 2001”, about 24,044 servicemen of which 898 were officers had received training on IHL and human rights law “with a view to minimizing the human rights violations by servicemen”.27 The ICRC training for the LTTE consisted of training on “the 1949 Geneva Conventions, IHL principles, human rights law and command responsibility”.28 Aptel argues that international criminal jurisprudence needs to extend the categories of international crimes that are currently considered to be most important, and investigate all different types of crimes that are being committed against children, during armed conflict or not.29 She means that: Children in general and girls in particular are only slowly emerging as previously invisible categories of victims. The extent to which children in general and girls in particular are victimized by crimes defined under international law and the negative impact that these crimes have on them have not yet been fully documented. All crimes against children should be documented and penalized, and international courts have a critical role to play in that process. It is essential to break away from an “adult-centric” understanding of international crimes and acknowledge that, in numerous contexts, the victims and witnesses of grave crimes are children.30

25 26 27 28 29

30

Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 136 Cited article in the Sri Lankan Sunday Observer Newspaper in Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 136 Cited article in the Sri Lankan Sunday Observer Newspaper in Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 136 Footnote 81 in Kuper, J., Military training and children in armed confl ict, Law, policy and practice, 2005, p. 149 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 113 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 113

Armed Conflict, Transitional Justice and Children and Youth

The value of having international courts investigate in a systematic way the scope of international crimes that are being committed against children is that the range of the particular crimes committed against children could be revealed so that the crimes that are committed against children would no longer go unnoticed and remain hidden.31 While international courts cannot take up all grave crimes that have been committed against children, such courts with a well thought out prosecutorial strategy could decide to take up crimes against children either in separate or joint trials with adult victims where the crimes committed against children or adults are considered as equally important, a decision that needs to be taken in consideration of issues such as the availability of evidence and institutional capacity.32 Aptel has identified five parameters that could provide guidance to international courts in their choices of which crimes against children to investigate and prosecute:33 (1)

(2)

(3)

(4)

31

32

33

All grave or systematic crimes committed against children should be investigated and prosecuted, which requires the development of investigation and prosecution strategies that enable the prosecution of child-specific and generic international crimes. It should not be enough to only investigate and prosecute alleged perpetrators of child-specific crimes, all grave international crimes committed against children, including generic crimes need to be treated as equally important and prosecuted. In cases before an international court which include generic crimes committed against children, these crimes should not only be regarded as an “aggravating factor” considered mostly at the sentencing stage, but should be treated as separate crimes during the trial where evidence for these crimes be put forward, so that the gravity of such crimes as well as the criminal responsibility of the perpetrator(s) be publicly revealed. International and mixed courts need to investigate and prosecute systematic patterns of criminality committed against children during both armed conflicts and peacetime, such as the enslavement of children and/or widespread forced labor, which amount to a crime against humanity.

Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 96 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 96 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 96-97

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(5)

Child-friendly procedures according to UN CRC Article 12 (2) need to be adopted to make it possible for children to participate in trials concerning international crimes committed against them. These child-friendly procedures need to respect the rights and needs of the child, minimize the risk of additional stress, trauma or harm to the child while testifying, enable the contribution of the child by having the child understanding the procedures, and need to adhere to the main guiding principles of the UN CRC including nondiscrimination, the best interest of the child, the rights to life, survival and development.

Aptel makes a distinction between child specific crimes and crimes committed against children alongside other victims, so called “generic” international crimes victimizing children.34 The main child-specific international crimes she brings up are: the war crime of conscripting or enlisting children or using them to participate actively in hostilities, the crime of genocide regarding transferring children from one group to another, and the war crime of attacking schools and other buildings dedicated to education.35 The definition of genocide in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide has been in its whole included in the Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and is the only provision that directly mentions children in these two statutes, that is “forcibly transferring children of the group to another group”.36 The Rome Statute for the ICC includes the definition of genocide in its Article 6. The 1948 Genocide Convention stipulates in its Articles I–III:37 Article I: The Contracting parties confirm that genocide, whether committed in peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

34

35

36

37

Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 84 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 84 Article 4 in the Statute for the International Criminal Tribunal for the Former Yugoslavia and Article 2 in the Statute of the International Criminal Tribunal for Rwanda, Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 84-85 Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the UN General Assembly on 9 December 1948, Entry into force 12 January 1951.

Armed Conflict, Transitional Justice and Children and Youth

Article II: Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of the life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. Article III: The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

Intentionally directing attacks against buildings dedicated to education is a war crime and a grave breach of the 1949 Geneva Conventions, and the statutes of the ICTY (Article 3(d)) and the ICC (Article 8(b)(ix) war crimes) have included this crime, but no one has been tried for this crime.38 As children in armed conflict are awarded special protection under international humanitarian law, including from common Article 3 of the 1949 Geneva Conventions, the Fourth Geneva Convention, Additional Protocol I, Articles 77 and 78, and Additional Protocol II, Article 4(3), Aptel argues that since children suffer disproportionally from crimes committed in war and are especially vulnerable in combination with a “legal obligation to protect children”, it is necessary to give more attention to these crimes in a more systematic way.39 The ad hoc criminal tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR) have not taken up any cases that have dealt solely with crimes committed against children, while such crimes many times have been included in cases concerning crimes committed against the civilian populations such as the Kunarac case by the ICTY

38

39

Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 85: The ICC Article 8, War crimes, p. 2 (b) (ix) “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.” Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 85 and footnote 59, p. 88

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regarding sexual violence.40 The Special Court for Sierra Leone issued the first conviction on the recruitment and use of child soldiers and the first conviction on forced marriage. Crimes of sexual violence have been part of most indictments by the Special Court where also girls have been mentioned as a separate category.41 The ICC issued the first indictment ever on the recruitment and use of child soldiers in the Lubanga case, and has issued many indictments that include rape and different forms of sexual violence. Smith warns that in the process of raising awareness of violations of children’s rights in transitional justice processes, the risk of “showcasing” certain types of crimes committed against children in war such as child soldiering or sexual abuse needs to be acknowledged.42 She correctly argues that such processes need to take care to account for the totality of the children’s experiences so that the children’s and especially girls’ earlier experiences of objectification, marginalization or stereotyping will not be repeated.43 13.3.

The International Criminal Court and Children Associated with Armed Forces and Armed Groups

The International Criminal Court (ICC) was established in 1998 by the Rome Statute of the International Criminal Court which entered into force in 2002 after the 60th state had ratified the Statute according to its Article 126.44 The ICC has the aim of helping to prevent impunity and as a result contribute to the prevention of those crimes considered the worst by the international community, and they include the crime of genocide, crimes against humanity, war crimes and the crime of aggression, which the ICC has jurisdiction over.45

40

41

42

43

44 45

Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 89: More on these cases further in the chapter. Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 91-92: More on these cases further in the chapter. Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 41, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 41, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 Rome Statute of the International Criminal Court, U.N. Doc. A//Conf.18/9, July 17, 1998, Article 126 Article 5, Crimes within the jurisdiction of the Court, the Rome Statute of the International Criminal Court, 1998

Armed Conflict, Transitional Justice and Children and Youth

The Rome Statute of the ICC stipulates that in international armed conflicts it is a war crime to recruit and use children under the age of 15 years according to Article 8(2)(b)(xxvi): Conscripting or enlisting children under the age of fi fteen years into national armed forces or using them to participate actively in hostilities.

In the context that current armed conflicts are mainly internal, it is of importance that the Rome Statute addresses both state armed forces and non-state armed actors as it does in its Article 8(2)(e)(vii). Article 8(2)(e)(vii) stipulates that in an armed conflict not of an international character the following is a war crime: Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.

The Rome Statute has a high threshold for what constitutes an armed internal conflict as it is stipulated in Article 8(d) regarding war crimes that paragraph 2(c) applies: to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Article 8(f) of the Rome Statute also specifies that paragraph 2(e) applies to: armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed confl ict between governmental authorities and organized armed groups or between such groups.

The ICC issued its very first arrest warrants 8 July 2005, which concerned the five Lord’s Resistance Army (LRA) commanders on the basis of their individual criminal responsibility, and three of these commanders, Joseph Kony, Vincent Otti and Okot Odhiambo, were charged among other crimes for the war crime “forced enlisting of children” according to Article 8(2)(e)(vii) of the Rome Statute.46 The warrants of arrest say that LRA “has established a pattern of brutalization of civilians by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army 46

The International Criminal Court, Press Release, Warrant of Arrest unsealed against five LRA Commanders, ICC-CPI-20051014-110; http://www.icc-cpi.int

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(UPDF) and civilian communities”.47 At the time of writing none of the indicted commanders have been arrested, and they continue to escape justice.48 However, the commanders have issued conditions of their arrests and have stated that if the indictments are not withdrawn they will continue to commit violence.49 The chief ICC prosecutor, Luis Moreno Ocampo, has warned that the LRA has regrouped and continues to commit grave violations of human rights due to their renewed strength and new financial resources.50 Also, the ICC prosecutor has underlined that it would be illegal to help indicted individuals to escape going to trial. In addition, keeping in mind that the commanders were indicted for the abduction of children, not one child has been released by the LRA.51 Both the UN and UNICEF have continually demanded the release of these children. On 17 March 2006 the ICC for the first time in its history arrested a suspect and transferred him to The Hague.52 This was Thomas Lubanga Dyilo, alleged founder and president of the Union des Patriotes Congolais (UPC) of the Democratic Republic of Congo (DRC) and the alleged founder and former Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC) the military wing. The UPC was founded in September 2000 and Lubanga was allegedly the Commander-in-Chief of the FPLC between September 2002 and late 2003.53 He was charged under Article 8 of the Rome Statute of the ICC for war crimes committed in the DRC during two periods from 2002 to 2003. This was the first indictment by an international criminal court on the recruitment

47 48

49 50 51 52

53

The International Criminal Court, Press Release, Warrant of Arrest unsealed against five LRA Commanders, ICC-CPI-20051014-110; http://www.icc-cpi.int The fourth commander still at large is Dominic Ongwen, the alleged Brigade Commander of the Sinia Brigade of the LRA, and the fi ft h commander for whom there was an arrest order delivered, Raska Lukwiya (alleged Deputy Army Commander of the LRA), passed away in August 2006, ICC, Situation in Uganda, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case no ICC02/04-01/05, Case Information Sheet, ICC-PIDS-CIS-UGA-001-001/10_ENG, Updated 16 June 2010 and http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/ Situations/Situation+ICC+0204/...7/25/2012 Osike, F. and Mukasa, H., ICC insists Kony must face Prosecution, October 11 and 12, 2007, New Vision, AllAfrica.com Osike, F. and Mukasa, H., ICC insists Kony must face Prosecution, October 11 and 12, 2007, New Vision, AllAfrica.com Osike, F. and Mukasa, H., ICC insists Kony must face Prosecution, October 11 and 12, 2007, New Vision, AllAfrica.com; and at time of writing this is still the case. Amnesty International, ‘Democratic Republic of the Congo: International Criminal Court’s first arrest must be followed by others throughout the country’, Public Statement, AI Index: AFR 62/008/2006, 20 March, 2006. ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009

Armed Conflict, Transitional Justice and Children and Youth

and use of children associated with armed forces and armed groups, and the charges are that he is allegedly responsible, as co-perpetrator of war crimes, for:54 Enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la liberation du Congo, Patriotic Forces of the Liberation of Congo, (FPLC) and using them to participate actively in hostilities in the context of an international armed conflict from early September 2002 to 2 June 2003 (punishable under article 8(2)(b)(xxvi) of the Rome Statute); Enlisting and conscripting children under the age of 15 years into the FPLC and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 2 June 2003 to 13 August 2003 (punishable under article 8(2)(e)(vii) of the Rome Statute).

Regarding the first charges committed in the context of an international armed conflict, this refers to the period of July 2002 and December 2003 when neighbouring states of the DRC including Rwanda and Uganda participated in the conflict.55 In January 2007 the ICC ruled that Mr. Lubanga would be the first to face trial at the Court and confirmed the charges of war crimes against him.56 However, in June 2008 the proceedings against Lubanga were stayed by the Trial Chamber I because the UN and other sources had provided the prosecutor with such confidential evidence which they did not want the prosecutor to disclose to either the defence or the Trial Chamber (in most cases).57 As a result the Trial Chamber ordered the release of Mr. Lubanga on 2 July 2008 on the basis that he would not receive a fair trial, however he was never released and the suspension of the trial was lifted as the sources of the evidence had taken a “new position” on the information and allowed for the information to be given to the judges.58 In 2009 there was a request made to the ICC by some victims’ (mainly children formerly associated with armed groups) and their families’ legal representa54 55

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Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009 Boustany, Nora, Court Orders Trial for Congolese Warlord Accused of Conscripting Children, Washington Post, January 30, 2007, A10; ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CIS-DRC-01-002-09_Eng, Updated 23 January 2009 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009

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tives to complement the charges against Lubanga with the addition of new charges including sexual slavery, inhumane treatment and cruel treatment, which was not accepted.59 The trial of Mr. Lubanga began on 26 January 2009, which was the first trial of the ICC, and he pleaded not guilty to the charges against him.60 It is the first trial that concerns only child soldiers, and nine of the witnesses are former child soldiers who are the first former child soldiers to become witnesses in front of an international court.61 FPLC commanders forcibly recruited groups of children from several places in Ituri from July 2002 until December 2003, and Mr. Lubanga himself was part of forcibly recruiting a group of children of which some were under 15 years in at least one case.62 The FPLC engaged in calls of mobilisation in different Hema communities, and as a result some parents let their children under 15 years “voluntarily” join the FPLC. This was done at times with the purpose of taking revenge for relatives being allegedly killed by groups fighting the FPLC. The FPLC took the children to training camps in several localities for training the children in military activities including firearms training.63 Many children were then made to fight in the front lines by the FPLC military commander as well as being the bodyguards of the military commanders as well as of Mr. Lubanga. The ICC Pre-Trial Chamber I has alleged that Mr. Lubanga had the de facto ultimate control of the policies and practices including the recruitment and use of children of the UPC and the FPLC since he was the President of 59

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Aptel, C., International Criminal Justice and Child Protection, Chapter 3, p. 82-83 and footnote 46: Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, “Demande conjointe des Représentants Légaux des Victimes aux Fins de Mise en Oeuvre de la Procédure en Vertu de la Norme 55 du Règlement de la Cour” 22 May 2009; and Footnote 47: Judgment on the Appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber 1 of 14 July 2009 “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court,” 8 December 2009, all in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 The Associated Press, International Court Begins First Trial, New York Times, January 26, 2009 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information Sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information Sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009 Locations included: Bule, Centrale, Mandro, Rwampara, Bogoro, Sota and Irumu, ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009

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the UPC and the Commander-in-Chief of the FPLC.64 Finally the Trial Chamber I found Mr. Lubanga guilty on 14 March 2012 “as a co-perpetrator, of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities from 1 September 2002 to 13 August 2003”.65 Subsequently in July 2012 Mr. Lubanga received his sentence by Trial Chamber I of 14 years in prison (deducting the time he has been in the custody of the ICC).66 This verdict by the Trial Chamber I was the first conviction that a Trial Chamber at the ICC had delivered. At the time of writing it was not yet decided whether this verdict would be appealed by Mr. Lubanga, and the issue of victims’ reparations and which principles to use to that end were still to be determined by the Trial Chamber I (a decision that is much anticipated). With regards to the situation in DRC, in addition to Mr. Lubanga, Germain Katanga and Mathieu Ngudjolo Chui from DRC are also being held in The Hague, while a second arrest warrant has been issued for Bosco Ntaganda who is yet at large.67 However, the ICC still conducts on-going investigations into the situation in DRC and has not closed any investigations concerning other perpetrators.68 64

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ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information Sheet, ICC-PIDS-CISDRC-01-002-09_Eng, Updated 23 January 2009 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case Information Sheet, ICC-PIDSCIS-DRC_01-008/21_Eng, Updated July 12, 2012 Mr. Lubanga was sentenced by the Trial Chamber I on July 10, 2012, ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case Information Sheet, ICC-PIDS-CISDRC_01-008/21_Eng, Updated July 12, 2012 ICC, Situation on the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Case information sheet, ICC-PIDSCIS-DRC-01-002-09_Eng, Updated 23 January 2009; and ICC, Situation on the Democratic Republic of the Congo, the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, and the Prosecutor v. Bosco Ntaganda, ICC01/04-02/06, Pre-Trial Chamber II delivered the second arrest warrant regarding Bosco Ntaganda on July 13, 2012, www.icc-cpi.int/NetApp/App/MCMSTemplates/ SituationsAndCasesIndex.aspx?NR...7/25/2012 Pre-Trial Chamber II delivered an arrest warrant against Sylvestre Mudacumura, the alleged Supreme Commander of the Forces Démocratique pour la Libération du Rwanda on July 13, 2012 for allegedly being “criminally responsible for committing nine counts of war crimes, from 20 January 2009 to the end of September 2010, in the context of the conflict in the Kivus, in the Democratic Republic of Congo (DRC) on the basis of his individual criminal responsibility (article 25(3)(b) of the Statute) including: attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity,” he is still at large, The Prosecutor v. Sylvestre Mudacumura, ICC-01/04-01/12; Callixte Mbarushimana, Alleged Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda-Forces Combattantes Abacunguzi (FDLR-FCA, FDLR), was

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The Lubanga case brought up how sensitive the process of gathering and conveying information about such cases are on the ground. For instance two rebel leaders wanted at The Hague on crimes against humanity had their stories compiled by Save the Children, UNICEF and some local NGOs.69 However, since these cases concerned such sensitive and high security issues, Save the Children and the local NGOs had to hide behind the UN not to risk being targeted for reprisals. 13.3.1.

The Amicus Curiae Brief by the UN Special Representative of the Secretary-General on Children and Armed Conflict and the Thomas Lubanga Dyilo Case

During the course of the proceedings of the Mr. Lubanga case, the UN Special Representative of the Secretary-General on Children and Armed Conflict (SRSG-CAAC), Rhadika Coomaraswamy, submitted an amicus curiae brief following “the Decision Inviting Observations from the Special Representative of the Secretary-General of the United Nations for Children and Armed Conflict, of Trial Chamber I of the International Criminal Court (hereinafter “the ICC” or “the Court”) dated 18 February 2008, which granted her leave to submit written observations on ‘a) the definition of ‘conscripting or enlisting’ children, and, bearing in mind a child’s potential vulnerability, the manner in which any distinction between the two formulations (i.e. conscription or enlistment) should be approached; and b) the interpretation, focusing specifically on the role of girls in armed forces, of the term ‘using them to participate actively in hostilities.’”70 In turn “that decision was made in response to the Special Representative’s application for leave to submit written observations in the form of an amicus curiae brief, contained in Submission by the Registrar of correspondence received with-

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transferred to the ICC on January 25, 2011 but was released on December 23, 2011 from the custody of the ICC as the charges on crimes against humanity and war crimes was not confirmed by the Pre-Trial Chamber I, The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, www.icc-icp.int/NetApp/App/MCMSTemplate / SituationsAndCasesIndex.aspx?NR...7/25/2012 Interview with former Child Protection Officer with Save the Children, Goma DRC, Email, January 26, 2009 Prosecutor v. Thomas Lubanga Dyilo, No. 01/04-01/06-1175, Decision Inviting Observations from the Special Representative of the Secretary-General of the United Nations for Children and Armed Conflict, 11 (Trial Chamber 1, February 18, 2008), Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 1

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in the context of Rule 103 of the Rules of Procedure and Evidence and submitted to the Court on 4 January 2008”.71 As the Special Representative explains in her submission, her mandate and the many extensions to it made by the UN General Assembly both authorized and compelled her to make such a submission in a case directly related to her mission as a representative of children who have been harmed by armed conflicts and as a result of all the experience that she had acquired during her term as a Special Representative.72 Her mandate includes “working closely with competent international bodies to ensure protection of children in situations of armed conflict”.73 As the Special Representative argues in her submission, the UN General Assembly recognizes in three resolutions, 54/149, 57/190 and 60/231, “the role of the International Criminal Court in ending impunity for perpetrators of crimes against children”.74 In her submission the Special Representative offered observations regarding two issues: “a) the definition of ‘conscripting or enlisting’ children, and, bearing in mind a child’s potential vulnerability, the manner in which any distinction between the two formulations (i.e. conscription or enlistment) should be approached; and b) the interpretation, focusing specifically on the role of girls in armed forces, of the term ‘using them to participate actively in hostilities’”.75 With regards to the definition of “conscripting and enlisting”, the 71

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Prosecutor v. Thomas Lubanga Dyilo, No. 01/04-01/06-1105-Conf, Submission by the Registrar of Correspondence Received Within the Context of Rule 103 of the Rules of Procedure and Evidence (Trial Chamber 1, January 4, 2008), Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Confl ict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 2 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 2 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 2 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 2 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in

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Special Representative presented three points which she wanted to underline and they included that there is a high likelihood that children under the age of 15 will be conscripted or enlisted when minors are recruited in modern conflicts, that conscription and enlistment are forms of recruitment, and that the Court should approach the distinction between conscription and enlistment on a case-by-case basis.76 Regarding the first point, she referred to how some factors in conflict zones contribute to the high risk of children under the age of 15 being conscripted or enlisted into armed forces or different armed groups. These factors were the impunity of perpetrators, the need for more numbers in their ranks, and the vulnerability of children who are orphaned, displaced, without family and community protection and fighting for survival.77 The Special Representative argued that in the permissible context of contemporary armed conflicts, the children are extremely vulnerable to military recruitment, and to be manipulated or enticed to join armed groups.78 With regards to the distinction between conscription and enlistment, the Pre-Trial Chamber in its Confirmation of Charges Decision on Mr. Lubanga referred to forced recruitment as conscription and voluntary recruitment as enlistment.79 In the June 2007 decision on the guilt of the AFRC being accused of child soldiering crimes, the Special Court for Sierra Leone Trial (SCSL) Chamber II interpreted the terms conscription and enlistment as such:80

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application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 3 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, II. A-C Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 7 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 6 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 8 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Repre-

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[T]he Trial Chamber adopts an interpretation of ‘conscription’ which encompasses acts of coercion, such as abductions and forced recruitment, by an armed group against children, committed for the purpose of using them to participate actively in hostilities. ‘Enlistment’ entails accepting and enrolling individuals when they volunteer to join an armed force or group.

As the Special Representative argues the SCSL Trial Chamber recognizes the changed nature of conflict to have become more of an internal character, and therefore it is not only states that can conscript children, but also non-state actors.81 In addition, the Special Representative stated that the SCSL Trial Chamber defined the term enlistment to include children both being enlisted by formal and informal means. In the Rome Statute the distinction between lawful recruitment and unlawful recruitment is decided upon by age alone and not by any act of the child. This means that any statements or acts made by a child under the age of 15 that are to be considered “voluntary” are not relevant as it is unlawful to recruit a child under the age of 15 with or without consent.82 Furthermore, as the Special Representative notes, recruitment in itself “is per se against the best interest of the child”, a principle which the Rome Statute codifies.83 In its determination of which crime should apply, conscription or enlistment, the Special Representative underlines that in the context of DRC children join a military group for different reasons, and that not all are recruited forcefully, and that it will be important for the Court to examine how a child became a soldier case-by-case.84 Many children join because of poverty, others because of family pressure, for reasons such as

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sentative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 8 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 9 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 10 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 11 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in

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defending or taking revenge on behalf of the family, and sometimes for ethnic or tribal reasons. Therefore the Special Representative meant that it is both legally irrelevant and practically superficial to distinguish between voluntary and forced recruitment as she made a reference to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.85 The Special Representative made note of Article 4 of the Optional Protocol that says that “[a]rmed groups ... should not, under any circumstances, recruit ... persons under the age of 18 years”, and wanted the Trial Chamber I in its later deliberations on facts and later sentences to take into account that forced conscription or voluntary enlistment has no relevance to the prohibition.86 The Special Representative’s second submission in the amicus curiae brief included two statements on the interpretation “using them to participate actively in hostilities”, stating first that the “participate actively” standard covers both combatant and non-combatant children and that the Court should interpret the standard broadly, and that the Court must reject any interpretation of the “participate actively” standard that excludes girls.87 The Pre-Trial Chambers in its Confirmation of Charges Decision regarding Thomas Lubanga Dyilo acknowledged the broader interpretation of the “participate actively” terms in accordance with the Rome Statute.88 This is an expansion of international humanitarian law which speaks of “take a direct part in hostilities”. The UN’s policy for disarmament, demobilization and reintegration also encompasses this broader interpretation stating: “No distinction should be made between combatants and

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application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 12-14 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 14 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 15 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, III, para. 18-20 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 18

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non-combatants when [DDR] eligibility criteria are determined, as these roles are blurred in armed forces and groups, where children, and girls in particular, perform numerous combat support and non-combat roles that are essential to the functioning of the armed force or group”.89 The Special Representative argued that it is not possible to make a clear determination of which activities would be encompassed by the “participate actively” standard as this would risk excluding many child soldiers and then in particular girl soldiers.90 Instead a determination case-by-case should be conducted where the Court should ask in every case before it “whether the child’s participation served an essential support function to the armed force or armed group during the period of conflict”.91 This standard taken from the UN Integrated Disarmament, Demobilization and Reintegration Standards, IDDRS, “regarding women’s and girls’ eligibility for reintegration assistance”, acknowledges “all children ‘participating in or associated with armed groups or forces’ as victims of these crimes”, and child soldiers are no longer viewed as only armed combatants.92 The Tribunal for Sierra Leone, the SCSL Trial Chamber, determined regarding the AFRC case that: “‘Using’ children to ‘participate actively in the hostilities’ encompasses putting their lives directly at risk in combat ... Any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.”93 89

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Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 18 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 20-21 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 21 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 21 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 21

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With regards to the second statement, the Special Representative expressed concern that girls would be excluded from the definition of child soldiers, as they are often invisible and performing multiple roles including being exposed to sexual violence.94 Reference was made to the Cape Town Principles which determined that “girls recruited for sexual purposes and for forced marriage” are child soldiers. Furthermore, reference was made to the African Union’s Protocol to the Charter on Human and Peoples’ Rights on the Rights of Women in Africa which states that “State Parties shall take all necessary measures to ensure that no child, especially girls under 18 years of age ... is recruited as a soldier”.95 In addition, reference was made to the Paris Principles that states that “all children used for sexual purposes” are child soldiers. The Special Representative meant that in terms of the understanding of the “using” crime, the Court should take into account all sexual acts that have been committed and then “in particular against girls”.96 The ICC has furthermore on-going trials with charges related to children, such as child soldiering and rape and sexual slavery concerning German Katanga and Mathieu Ngudjolo Chui, and rape and sexual violence regarding former presidential candidate Jean-Pierre Bemba, all from the DRC. With regards to the case of Germain Katanga, the alleged commander of the Force de résistance patriotique en Ituri (FPRI), and Mathieu Ngudjolo Chui, the alleged former leader of the Front des nationalistes et intégrationnistes (FNI), both from the Ituri District in the DRC, they are jointly tried by the ICC for having jointly committed through other persons war crimes and crimes against humanity (within the meaning of

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Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 24 Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo, Written submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict submitted in application of Rule 103 of the Rules of Procedure and Evidence, 18 February, 2008, para. 25

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Article 25 (3)(a) of the Statute).97 Their trials began on 24 November 2009 and they are jointly charged as follows:98 War crimes: a. using children under the age of fi fteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute; b. directing an attack against a civilian population as such or against individual civilians not taking part in hostilities under article 8(2)(b)(i) of the Statute; c. willful killing under article 8(2)(a)(i) of the Statute; d. destruction of property under article 8(2)(b)(xiii) of the Statute; e. pillaging under article 8(2)(b)(xvi) of the Statute; f. sexual slavery under article 8(2)(b)(xxii) of the Statute g. rape under article 8(2)(b)(xxii) of the Statute. Crimes against Humanity: a. murder under article 7(1)(a) of the Statute; b. rape under article 7(1)(g) of the Statute; c. sexual slavery under article 7(1)(g) of the Statute.

The case of Jean-Pierre Bemba is a case where the prosecution of the ICC is focusing on the sexual violence committed as with regards to DRC the confl ict has had far-reaching consequences in different aspects also for neighbouring countries. The Office of the Prosecutor of the ICC issued an arrest warrant in 2009 against Jean-Pierre Bemba Gombo, the founder and commander-in-chief of the Mouvement de Liberation du Congo, the MLC, because troops under his command entered and committed gross human rights violations against the civilian population in the Central African Republic.99 The prosecution of the ICC stated that the MLC came to the Central African Republic in October 2002 and left in March 2003 with the purpose of protecting the presidency of Patassé from a

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Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07; Germain Katanga was appointed by the President Joseph Kabila of DRC the BrigadierGénéral in the Forces Armées de la République Démocratique du Congo (FARDC) and he held this post until his arrest in March 2005; Mathieu Ngudjolo Chui was made colonel in the FARDC in October 2006. ICC-01/04-01/07, Case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case Information Sheet, ICC-PIDS-CIS-DRC2-03-004/11_Eng, Updated 15 June 2012; The closing statements in these cases were held May 15-25, 2012, ICC Trial Chamber II to deliberate on the case against Germain Katanga and Mathieu Ngudjolo Chui, Press Release, ICC-CPI-20120523-PR796, 23.05.2012, www.icc-cpi. int/menus/icc/situations%20and%20cases/situations/situation%20icc%...7/25/2012 Ms. Bensouda, Fatou, The confirmation of charges hearing, the case of the Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, opening remarks, the Hague, 12 January, 2009

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rebellion.100 With Mr. Bemba as commander-in-chief, the MLC arrived in the Central African Republic and entered into communities labelling the civilians rebel sympathizers and subjected them to cruel, inhumane and humiliating treatment, going systematically from house to house, looting women and girls, sodomizing community leaders and men, and killing people.101 The prosecutor explained that the crimes committed were part of a systematic attack against the civilian population and that the number of sexual crimes outnumbered the number of killings. This fact had resulted in that the prosecution decided to focus on sexual violence, rapes and other abuses committed with particular cruelty of which some acts constituted torture.102 The prosecution stated that “Jean Pierre Bemba wanted to terrorize and traumatize the population and make them unwilling to support the rebels. To do so he chose rape as his main weapon. Rapes of women, men and little children. Rapes in public cases. Gang rapes. Rapes of mothers in the presence of their children, rape of children as their parents were forced to watch.”103 Mr. Bemba was the opposition candidate in the presidential elections in DRC in 2006, the election which the current president of DRC Mr. Kabila won. Bemba was transferred to the ICC in the Hague on 3 July 2008 and the trial began on 22 November 2010 based on the charges: two counts of crimes against humanity: murder (Article 7(1)(a) of the Statute) and rape (Article 7(1)(g) of the Statute), and three counts of war crimes: murder (Article 8(2)(c)(i) of the Statute), rape (Article 8(2)(e)(vi) of the Statute), and pillaging (Article 8(2)(e)(v) of the Statute).104 The trial was still on-going at the time of writing. 13.4.

Justice: To End Impunity for Rape and Sexual Violence in Armed Conflict

Given the magnitude, stigma, secrecy and underreporting of sexual violence, together with the consequences for the girl child victims of sexual violence in100 Ms. Bensouda, Fatou, The confirmation of charges hearing, the case of the Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, opening remarks, the Hague, 12 January, 2009 101 Ms. Bensouda, Fatou, The confirmation of charges hearing, the case of the Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, opening remarks, the Hague, 12 January, 2009 102 Ms. Bensouda, Fatou, The confirmation of charges hearing, the case of the Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, opening remarks, the Hague, 12 January, 2009 103 Ms. Bensouda, Fatou, The confirmation of charges hearing, the case of the Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, opening remarks, the Hague, 12 January, 2009 104 ICC, The situation in the Central African Republic, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No ICC-01/05-01/08, and Case Information Sheet, ICC-PIDSCIS-CAR-01-009/12_Eng, Updated 15 June 2012

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cluding physical injuries that might prevent them from ever being able to have a child or unwanted pregnancies, it should be a priority and a duty of national and international criminal tribunals, such as the ICC, to specifically identify these crimes and the perpetrators and to prosecute and punish them for the sexual violence they have committed towards children. This also includes the fact that many boys are exposed to sexual violence, which also needs to be acknowledged at the level of international jurisdictions. The need for such a specific focus must be seen in the context that in post-conflict environments sexual violence most often continues with impunity and that it is the girls and young women who are still the main victims without any redress. Even as rape and sexual violence were very widespread during the war in Bosnia-Hercegovina, at the beginning of the work of the Yugoslav Tribunal, it was discussed if rape constituted a war crime and if in that case it would be possible to prosecute rape under the Statute of the Tribunal, since the Statute only specifically had mentioned rape as a crime of sexual violence and then as a crime against humanity.105 That rape can constitute a war crime and thus could be prosecuted under the Statute of the Yugoslav Tribunal was in the end accepted, as well as that rape in some forms can be prosecuted as a crime against humanity and then especially with regards to systematic rape.106 Furthermore it was accepted that rape could be considered to be a grave breach of the Geneva Conventions of 1949, which was not accepted by all legal experts, and furthermore it was discussed whether rape and other forms of sexual violence could be prosecuted as genocide, which was finally also accepted but debate on that issue still continued.107 In the end it became accepted that rape in different forms can be prosecuted under several articles in the two statutes for the Yugoslav Tribunal and subsequently for the Rwandan Tribunal.108 Rape is identified as a crime against humanity and a war crime in the Statute for the International Criminal Tribunal for Rwanda in accordance with common Article 3 to the 1949 Geneva Conventions and Additional Protocol II.109 For rape to be prosecuted as a crime against humanity it needs to be “committed as part of a widespread or systematic attack directed against a civilian 105 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. xiv; see also Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 9 106 Article 5 of the Statute for the Yugoslav Tribunal, Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. xiv 107 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. xiv 108 Askin, K. D., War Crimes Against Women, Prosecution in International War Crimes Tribunals, 1997, p. xiv 109 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 9

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population” and the perpetrator needs to know that the rape committed was part of such a widespread or systematic attack.110 To prosecute rape as a war crime it needs to be committed in the course of an armed conflict and as part of the armed conflict and the perpetrator needs to know that there is an armed conflict going on.111 In the case of the International Criminal Tribunal for the former Yugoslavia, which was established in 1994, a Completion Strategy was implemented as a result of the UN Security Council resolution 1503 in 2003 which called on the Tribunal to by the end of 2008 have all trial activities at the first instance completed, and that all its work would be completed by 2010 which has been extended to 2012.112 To be able to complete its work on time the Tribunal has concentrated on the senior leadership and has “referred or transferred” 13 cases to Bosnia Herzegovina, Croatia and Serbia to be nationally prosecuted.113 The sexual violence committed against women and girls and increasingly boys and men is taking place in a context of utter impunity. As has been noted elsewhere there is a strong national law against rape and sexual violence with up to 20 years in prison in DRC, but with a very weak and corrupt judicial and court system, and corrupt and ill-trained police officers, there is almost total impunity for the perpetrators and no protection of women or children at all. This situation is not unique for DRC as many conflict countries are confronting the same issues. In Goma a group of female lawyers work in partnership with the HEAL Africa hospital and work to bring perpetrators to justice within the context of a corrupt judicial system.114 One of the lawyers, Mireille Kahatwa Amani, explains that most of the women are afraid of being harassed by the perpetrators if they would go to trial and when they see the dysfunctional judicial system.115 Ms. Viviane Vira Mwenge is a lawyer and the coordinator of the Genre et Justice programme, and she goes with the victims who have the courage to do so to the courts free of charge. As she says, very rarely is there a verdict, and this in a country which has a strong law on rape and sexual violence with a 20 year prison sentence for

110 111 112 113 114 115

Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 11 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 11 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 12-13 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 13 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009, Translated by author. Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009

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rape.116 She means to allow this impunity to continue even as this law exists, both “encourages and protects the perpetrators”.117 She means that the mentality needs to change not the law, and she advocates that an international criminal tribunal should bring to trial the violators of all these rapes. There have been some attempts to find accountability for crimes committed in DRC against children, however it is mainly military courts that have prosecuted such crimes. The Kisangani military tribunal in June 2009 “sentenced four members of one of the Mai-Mai groups to life imprisonment and one member to 30 years imprisonment for crimes against humanity, in particular for the rape of more than 30 women, including 8 girls”.118 Six members of the FARDC were convicted by a military tribunal in South Kivu in 2009 for crimes of sexual violence against children. The Haut-Katanga military court convicted Mai-Mai Commander, Gedeon Kyungu Mutanga, for crimes against humanity in 2009, “which was the largest trial involving such crimes in the country”.119 The UN Secretary-General in his annual report of 2010 on CAAC noted that while these trials and convictions are positive developments by these military tribunals, the jurisdiction of such military tribunals “should only take up military offences committed by military personnel, while human rights violations should only fall under the jurisdiction of civil criminal courts”.120 The UN Secretary-General further noted in his annual 2010 report on CAAC that known perpetrators of grave violations against children in DRC have been appointed to important government or senior military positions.121 A military court had convicted in 2006 former leader of the Mudundu 40 militia JeanPierre Biyoyo for the abduction and illegal detention of children for the purposes of recruitment, and he was appointed colonel for the FARDC, the national army. In January 2009, Bosco Ntaganda, whom the ICC has issued an arrest warrant for on charges of the war crime of enlisting child soldiers and using them in hostilities was appointed general in FARDC. A military court in Goma, North Kivu, convicted Ndayambaje Nyangara Kipanga in July 2009 for the abduction and rape of three girls. He was convicted to life imprisonment in absentia, he 116

Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 117 Laurent, C., Ici, la vie d’une femme ne vaut rien, Urgence Congo, Les congolaises face à la barberie, Elle, 14 Février, 2009 118 Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 9 119 Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 9 120 Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 9 121 Report of the Secretary-General, Children and Armed Confl ict, A/64/742-S/2010/181, 13 April 2010, p. 9: the following examples in this paragraph are taken from this report.

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managed to escape from prison, and he is known to be “within the command structure of the FARDC”. It is a fundamental principle in human rights law and in the context of the protection of civilians that it is the government that has the ultimate responsibility to prevent crimes from taking place in its territory and to protect the civilians within its jurisdiction, and not only the citizens. The government has the duty to protect the human rights of all people within its jurisdiction. What is there to do when the government is not capable of that? Or when the government is the perpetrator itself? For instance in Colombia, as has been noted, the government has been unable to get access to certain areas to assess the situation for women and girls whom they know are exposed to rape and sexual violence because different illegal armed groups are in control of these areas.122 In 1999 women’s organizations in Colombia wanted that an ad hoc international criminal tribunal would be established solely for the rape and sexual violence that had been committed against women and girls in Colombia during the then 40 years long conflict, and this violence is still being committed in 2011.123 Another fundamental issue is that there is not enough national or international funding to develop the justice sector in a given country, with the consequence that investments have been inadequate. For instance, in Liberia there is political will but there has been inadequate attention and funding coordinated by the international community with regards to the justice sector.124 13.4.1.

The International Criminal Tribunals for Former Yugoslavia and Rwanda

The importance with the establishment of the International Criminal Tribunal for Rwanda (ICTR) was that for the first time in history it was established that an international court could judicate crimes committed in an internal armed conflict.125 With regards to the International Criminal Tribunal for the former Yugoslavia (ICTY), the Yugoslavian conflict was determined to be both of an

122 Rapporteurship on the Rights of Women, Inter-American Commission on Human Rights, Violence and discrimination against women in the armed conflict in Colombia, OEA/Ser.L/V/II., Doc. 67, 18 October, 2006, p. 5 123 Meetings with Colombian women at Women Waging Peace Conference, Boston, October-November 1999 124 Joanne Sandler, UNIFEM, Conference at the United Nations, New York, May 1, 2009 125 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A, Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998

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international and internal character, while the Rwandan conflict was only an internal conflict. At first the International Criminal Tribunal for Rwanda was very slow in addressing sexual violence, as the Tribunal treated the crime as a lesser crime and that many working at the Tribunal worked under the assumption that African women do not talk about rape.126 After the civil war and the genocide there was a continuous conflict environment in Rwanda, as well as in the neighbouring countries, which showed that the establishment of the ICTR did not have any deterrent effect, neither on the Rwandan government, governmental forces, militias or individuals at the time. The criminal tribunals for the former Yugoslavia and Rwanda have clarified the international legal protection of rape and sexual violence. Today rape and sexual violence can be prosecuted as war crimes, crimes against humanity (when widespread and systematic), torture, grave breaches of the Geneva Conventions, including common Article 3 and Protocol II, and as part of genocide.127 It was the ICTY that for the first time in history convicted individuals for having committed rape and sexual violence which amounted to crimes against humanity, which was in the Kunarac case.128 The Kunarac case was not only the first conviction of rape as a crime against humanity but also the first convictions of enslavement as a crime against humanity.129 Of significance was further that while neither Kunarac, Kovač nor Vuković were the highest political or military leaders, the Trial Chamber wanted “to make it perfectly clear that, although in these cases before this Tribunal it is generally desirable to prosecute and try those in the higher echelons of power, the Trial Chamber will not accept low rank or a subordinate function as an escape from criminal prosecution”.130 In the case of Blaskiç, the Yugoslav Tribunal held that it was an aggravating circumstance to target women and children, as it stipulated in its judgement that “in this case many crimes tar-

126 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A, Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 301 127 Human Rights Watch, “Federal Republic of Yugoslavia, Kosovo: rape as a weapon of ‘ethnic cleansing’”, 2000, page 1 and 2 of 5, www.hrw.org 128 Kuper, J., Bridging the Gap: Military Training and International Accountability Regarding Children, Chapter 12 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 158, and ICTY, Judgement of Trial Chamber II in the Kunarac, Kovač and Vuković case, The Hague, 22 February 2001, JL/P.I.S./566-e 129 ICTY, Judgement of Trial Chamber II in the Kunarac, Kovač and Vuković case, The Hague, 22 February 2001, JL/P.I.S./566-e 130 ICTY, Judgement of Trial Chamber II in the Kunarac, Kovač and Vuković case, The Hague, 22 February 2001, JL/P.I.S./566-e, p. 3

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geted the general civilian population and within that population the women and children. These acts constitute an aggravating circumstance”.131 A broad definition of sexual violence was established by the Rwandan Tribunal in the Akayesu case. The Tribunal said that “[s]exual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact” – which included forced nudity.132 Akayesu was a mayor and not a military commander, and importantly the ICTR pointed out that it is possible to hold a mayor who is a civilian equally criminally accountable as a military commander pending their level of authority.133 In the case of Akayesu, the ICTR ruled that because of his position and authority in his community Akayesu could be considered to have as much authority as a military commander and could thus be treated as such a commander and therefore be held liable for the crimes committed.134 These judgments and interpretation of international law are important not only for the development of international law, but also as a recognition that these types of acts are crimes to be prosecuted both in international and internal conflicts, and that it is possible to establish individual responsibility for these types of crimes. In Rwanda many children and youth participated in the genocide in 1994, and youth got military training before the genocide by the MRND and CDR political parties. Jean Kambanda, the prime minister for the interim government during the genocide, acknowledged his role and responsibility before the ICTR:135 [B]efore 6 April 1994, political parties in concert with the Rwanda Armed Forces organized and began the military training of the youth wings of the MRND and CDR political parties (Interhamwe and Impuzamugambi respectively) with the intent to use them in the massacres that ensued. Furthermore, Jean Kambanda acknowledges

131

Kuper, J., Bridging the Gap: Military Training and International Accountability Regarding Children, Chapter 12 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 157 132 Human Rights Watch, “Federal Republic of Yugoslavia, Kosovo: rape as a weapon of ‘ethnic cleansing’”, 2000, page 1 and 2 of 5, www.hrw.org 133 Kuper, J., Bridging the Gap: Military Training and International Accountability Regarding Children, Chapter 12 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 158-159 134 Kuper, J., Bridging the Gap: Military Training and International Accountability Regarding Children, Chapter 12 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 158-159 135 ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, Klip/Sluiter/ALC-II-823, para. 39 (vi)

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that the Government headed by him distributed arms and ammunition to these groups.

Jean Kambanda was the first before the ICTR to publically admit that genocide had taken place in Rwanda, and that women and children had been deliberately targeted for extermination:136 Jean Kambanda admits that there was in Rwanda in 1994 a widespread and systematic attack against the civilian population of Tutsi, the purpose of which was to exterminate them. Mass killings of hundreds of thousands of Tutsi occurred in Rwanda, including women and children, old and young who were pursued and killed at places where they had sought refuge i.e. prefectures, commune offices, schools, churches and … stadiums.

With regards to that children were also targeted during the genocide and that he had a duty to protect them, Jean Kambanda acknowledged before the ICTR that:137 On 3 May 1994, he was personally asked to take steps to protect children who had survived the massacre at a hospital and he did not respond. On the same day, after the meeting, the children were killed. He acknowledges that he failed in his duty to ensure the safety of the children and the population of Rwanda.

Kambanda was in 1998 convicted to life imprisonment as he was found guilty of genocide, conspiracy to commit genocide, direct and public indictment to commit genocide, complicity in genocide, and two counts of crimes against humanity – murder and extermination.138 However, he never apologized for what he had been convicted for, which was noted by the ICTR:139 “The Chamber notes however that Jean Kambanda has offered no explanation for his voluntary participation in the genocide; nor has he expressed contrition, regret or sympathy for the victims of Rwanda, even when given the opportunity to do so by the Chamber, during the hearing of 3 September 1998.”140

136

ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, Klip/Sluiter/ALC-II-823, para. 39 (i) 137 ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, Klip/Sluiter/ALC-II-823, para. 39 (ix) 138 ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, Klip/Sluiter/ALC-II-823 139 Schabas, W. A., An introduction to the international criminal court, Third edition, 2007, Footnote 21, p. 328 140 ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, Klip/Sluiter/ALC-II-823, para. 51

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With regards to the Gacaca courts in Rwanda some of the issues with this system concern that they have not been able to adequately protect the rights of children and the accused, including not having adhered to international juvenile justice standards, having left children vulnerable, especially when it comes to protecting the identity of the children who have been accused of committing crimes.141 The Gacaca courts have not been able to provide special protection of the rights of children, victims or witnesses, nor protect due process rights or defence rights, they have lacked rules of evidence and guidance “as to what is required to prove the elements of a crime”, they have had no legally trained judges or lawyers, and have made no reference to the rule of law.142 In addition, the Gacaca courts have not been able to take up war crimes, and they have conducted their work in the context that the Rwandan Constitution from 2003 stipulates that any “revisionism, negationism and trivialization of genocide are punishable by the law”.143 13.4.1.1.

International Criminal Justice and Women and Girls and Former Yugoslavia What was I guilty of when I was only 14 years old? What did I do anybody? I was at the point of his knife and I prayed to God for him to kill me. The worst was when I was taken away from my father. I thought I would never come back alive. I saw how they bound my father’s hands with wire and how he could not help me. His tears remained in my memory forever and I will never forget this. And the soldiers. Their uniforms, their masks. All of this, I will never forget. – Sabiha, interviewed by Amnesty International in the Federation of Bosnia and Herzegovina (FBiH) in March 2009.144 I do not know if it is possible to punish this crime. If justice exists at all?! Dear God I hope it does! Maybe somewhere but not here in Bosnia! Not here! Here there is not justice at all! – Bakira, interviewed by Amnesty International in FBiH in March 2009.

141

Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 60, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 142 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 61, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 143 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 61, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 144 These two quotes comes from Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 3

Armed Conflict, Transitional Justice and Children and Youth

Women in Bosnia-Hercegovina refer to outdated and discriminatory laws and procedures, combined with stigma and rape and sexual violence being a taboo subject, as blocking the delivery of justice and reparation to the many women and girls who were raped and sexually assaulted during the war between 1992 and 1995.145 In addition lack of access to health care, especially mental health care and where there are high levels of PTSD, exacerbates the problems for the women and their families. This is in a context where a number of the perpetrators of the rapes and sexual violence committed during the war still benefit from impunity and of which many continue to reside in the neighbourhoods and areas where the women and girls who were the victims of their abuses also live.146 Prior to the war no more than 7–10 per cent of all victims of rape reported this offence to the police in the former Yugoslavia.147 After the war there have been few national trials with regards to war crimes also because of a complicated judicial system in Bosnia-Hercegovina which has 13 jurisdictions that are able to prosecute war crimes.148 The establishment of a special court to expedite the investigation and prosecution of war crimes at the national level, the War Crimes Chamber (the WCC), as part of the State Court in accordance with the Law on the Court of Bosnia and Herzegovina, took place in 2005.149 However the outcome so far has been meagre as only 33 cases were concluded by the WCC at the end of July 2009, and of these 12 contained war crimes charges concerning sexual violence.150 At the time 57 other cases of war crimes awaited, of which 15 also contained war crimes charges concerning sexual violence. Charges of rape and other types of sexual violence had up until 2009 been part of 18 cases that had been prosecuted by the ICTY as well as completed, in addition to other cases taking place at the time.151 This in a context where at least 20,000 women and girls were raped during the war from 1992–1995, even as the exact figures are not known.152 145 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 3-4 146 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 3 147 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 5 148 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 6 149 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 18 150 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 19 151 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 13 152 The Parliamentary Assembly of the Council of Europe presented this number, Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 5

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The Yugoslav Tribunal has had several problems in how it has approached sexual violence as a war crime, and the problems include its completion strategy and the fact that when it comes to prosecuting rape and sexual violence as a category of crimes under international law there has not really been any pre-existing jurisprudence or judicial practice.153 With regards to its completion strategy the Tribunal has had to speed up its work and this has resulted in that charges concerning sexual violence as a crime have not been included in the indictments with regards to a number of cases.154 For instance, concerning the Milan and Sredoje Lukić case, where these men were allegedly responsible for rape and sexual slavery, in their indictment charges on such crimes were excluded, and while later there were some efforts to have the indictment amended by the prosecutor’s office during the time of Carla Del Ponte to include crimes of sexual violence they failed to do so within a set deadline.155 The Chief Prosecutor that followed, Serge Brammertz, asked to have the indictment amended to include these crimes but the Yugoslav Trial Chamber did not accept this request. The women’s survivors associations were very disappointed as they meant that the Tribunal this way was ignoring the testimonies they had given and denying their suffering.156 Other problems at the Yugoslav Tribunal for survivors of rape and sexual violence are that it is only possible for them to take part in the trials in cases where they have been chosen as witnesses, this in contrast to the ICC where survivors can during the course of a trial participate in cases affecting them when deemed relevant.157 Furthermore, reparations for victims cannot be ordered by the ICTY Tribunal against an individual who has been convicted for rape or other forms of sexual violence according to its Statute, which the Statute for the ICC in its Article 75 allows for.158 The judges at the ICTY reviewed the subject of reparations in 2000 and decided that “it is neither advisable nor appropriate that the Tribunal be possessed of such a power, in particular, for the reason that it would result in a significant increase in the workload of the Chambers and would further increase the length and complexity of trials”.159 153 154 155 156 157 158 159

Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 13 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 13 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 14 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 14 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 Amnesty International, ‘Whose Justice?’, The Women of Bosnia Are Still Waiting, EUR 63/06/2009, September 2009, p. 15

and Herzegovina and Herzegovina and Herzegovina and Herzegovina and Herzegovina and Herzegovina and Herzegovina

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As a result of that, the role for the victims of rape and sexual violence at the ICTY is limited as well as that due to the location of the Tribunal being in the Netherlands, it has been difficult for the victims to participate at the Tribunal.160 At the time of the establishment of the Tribunal there had not before existed support at international tribunals for witnesses and victims concerning rape and sexual violence, and it was the first time ever that a Victims and Witness Section Unit was established before an international tribunal, which the Registrar of the ICTY did.161 The ICTY has worked out a policy of its own on how to assist witnesses and victims since neither the Statute of the Tribunal nor its Rules of Evidence and Procedure specifically determine how such support is to be provided. Women who have been victims of rape and sexual violence have stated that the ICTY has not been able to deal with their psychological, social and economic needs.162 As many women have said that the main reason why they agreed to go to The Hague and be witnesses despite that they risked their personal safety and retraumatization was that they wanted the perpetrators to stand trial and be convicted.163 However, when the trial finished, they did not receive any more support even as they needed both assistance as well as protection for a longer period of time. There were also issues such as that in order to be able to travel to the Hague to testify many women were too poor to be able to do that and the Tribunal did not recognize this in the beginning of its work.164 This included being able to buy clothes, toiletries and/or luggage. A woman who was asked to appear before the Tribunal as a court expert explained that she was accommodated at a better hotel than the actual victims of rape and sexual violence who had come to testify.165 Further, victims cannot be awarded compensation by the Tribunal according to its Statute; it is only in cases taken up by domestic courts that a judgement of the Tribunal can be used in compensation cases for victims.166

160 This problem concerns all victims of the different crimes committed during the war; Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 161 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 162 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 163 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 15 164 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16 165 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16 166 See Rule 106 of the Rules of Evidence and Procedure of the Yugoslav Tribunal; Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16

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A main issue for the victims and survivors of rape and sexual violence has been that they believe that the sentences delivered by the ICTY have been too lenient and low.167 Many women have explained how “they felt their effort and impact on them of re-opening their trauma during the process of giving testimonies was too great and the outcome of the trial too disappointing” and if they had understood how the outcome would have been before they testified before the ICTY they would not have done it.168 Nezira Zolota, a member of the Association of Former Concentration Camp Inmates, commented on the sentences given in the Kunarac and others case that they were shocked at the lenient sentences and that they felt that since the accused were given the minimum punishment, justice had not been done.169 In addition in those cases that the accused pled guilty, the sentences delivered by the Tribunal were not considered severe enough to serve as prevention and the leniency led survivors of rape and sexual violence and NGOs to compare the sentences to an amnesty.170 The former co-president and later president of Republica Srpska in BosniaHerzegovina, Biljana Plavšić, who had been found guilty of crimes against humanity, was released from prison in October 2009, which was considered very controversial in a context where many wounds are still open. She had given herself up to the Tribunal in The Hague in 2001 and was sentenced to 11 years in prison in 2003 for crimes against humanity (persecutions on political, racial and religious grounds, Article 5 of the ICTY Statute).171 She cooperated with the Tribunal and declared herself guilty of crimes against humanity, and the charges of genocide were dropped. She got out of prison after having served two-thirds of the sentence, which is customary practice. At the same time, the current situation in Bosnia-Hercegovina is that none of the three ethnic groups are close to reconciliation; just the opposite people are very far from reconciliation. The former president of Republica Sprska during the war 1992–1995, Radovan Karadžić, currently is in the custody of the International Criminal Tribunal for Yugoslavia in 167 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16 168 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16 169 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 16 170 Amnesty International, ‘Whose Justice?’, The Women of Bosnia and Herzegovina Are Still Waiting, EUR 63/06/2009, September 2009, p. 17 171 ICTY, Judgement, Prosecutor v. Biljana Plavšić, Case No. IT-00-39&40/1-S, T. Ch. III of 27 February 2003, Klip/Sluiter ALC-XI-933, Annotated Leading Cases of International Criminal Tribunals, Vol. XI: The International Criminal Tribunal for the former Yugoslavia 2002-2003, p. 933-935; No other woman than Plavšić has been sentenced by the ICTY, p. 962, and Completed Cases, www.icty.org/action/cases/4; Case Information Sheet, “Bosnia-Herzegovina” (IT-00-39&40/1), Biljana Plavšić, www.icty-org/x/cases/plavsic/cis/en/cis_pl...

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The Hague and has been charged with genocide, war crimes and crimes against humanity.172 His trial is on-going at the time of writing, even as he has been doing everything he can to postpone it, just like the former president of Serbia, and then the president of the Federal Republic of Yugoslavia (FRY), Slobodan Milošević, did before he passed away in March 2006 in detention in the Hague due to illness before the end of his trial.173 Ratko Mladić, the former Commander of the Main Staff of the Bosnian Serb Army and later Colonel General of the Bosnian Serb Army, was arrested and transferred to the ICTY in May 2011, and he has been charged with genocide, crimes against humanity and violations of the laws or customs of law.174 13.4.2.

The History of the Victims in International Humanitarian Law and the Emergence of International Human Rights Law

There are several reasons why for instance crimes against women and children in armed conflict have not been more acknowledged. One reason is the fact that international humanitarian law did not really acknowledge the victims of armed conflict until the Geneva Conventions of 1949 and its two 1977 Additional Protocols, and while these legal instruments dealt with the situation for victims it was still done within “the general context of the interests of the State”.175 Crimes against humanity where the focus is on civilian victims were traditionally not considered as important as the crime of aggression which was considered to be the most important crime.176 For instance the International Military Tribunal for Nuremberg viewed aggression as the “supreme” crime.177 The Security Council resolution 827 that established the International Criminal Tribunal for the former Yugoslavia, made reference to “victims” but still in a passive sense:178

172

ICTY, The Communications Service, Case Information Sheet, (IT-95-5/18), Radovan Karadžić 173 ICTY, Case Information Sheet, “Kosovo, Croatia & Bosnia”, Slobodan Milošević, IT-02-54, www.icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevi 174 ICTY, Ratko Mladić, Case Information Sheet, IT-09-92, www.icty.org/case/mladic/ cis/en/cis_mladic_en_1.pdf; During the editing process of this book his trial began in May 2012. 175 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 324 176 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 324 -325 177 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325 178 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325, UN Doc. /S/RES/827 (1993)

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[T]he work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law.

Security Council resolution 808 makes no mention of “victim”, and it was this resolution that began the process that led to the establishment of the ad hoc tribunal for the former Yugoslavia.179 In Security Council resolution 955 that established the International Criminal Tribunal for Rwanda, there is no such reference to victims, and as Schabas stipulates the role of victims “in the work of the ad hoc tribunals has not been important”.180 The focus has been on the perpetrators. An approach that centres on victims and the rights of the victim has come by the means of international human rights law, and not from the “international humanitarian law/ international criminal law” perspective.181 Different international human rights law mechanisms have made possible the participation of victims since virtually the beginning of the human rights system in the latter part of the 1940s.182 The former UN Commission on Human Rights (now the Human Rights Council) and the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Protection and Promotion of Human Rights) initially received hundreds of thousands of petitions from individuals and mechanisms were established in order to fi nd a way to deal with these communications.183 Regional and universal human rights treaties established the right to have a remedy for individual victims of violations of human rights, and efforts to strengthen the position of victims within the general protection of international human rights were made during the 1980s.184 “The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” was adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1985, which the UN General Assembly later endorsed, and these Principles recognized “that victims should be treated with compassion and respect for their dignity, that they should have their right to access to justice and redress mechanisms fully respected, and that national funds for compensation 179 Footnote 10 in Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325 180 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325 181 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325 182 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325 183 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 325-326 184 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 326

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to victims should be encouraged together with the expeditious development of appropriate rights and remedies”.185 At the same time, a body of jurisprudence was emerging as a result of the work of human rights treaty bodies and tribunals that looked at issues concerning victims like “horizontal” human rights violations, and which importantly held a state responsible in accordance with its international treaty obligations “even where there was no apparent link between the State and the perpetrator”.186 Subsequently Hugo van Boven and M. Cherif Bassiouni within the UN SubCommission and Commission led work developing guidelines on the right to have a remedy and reparation.187 They proposed that a duty on states to prosecute serious violations of human rights (a duty that comes from “the obligation to respect and to ensure respect”, see common Article 1 of the Geneva Conventions), the right of victims to have a remedy and reparation and the right to know the truth would be established.188 Schabas means that it is “stunning” how much the Rome Statute of the ICC and its subsidiary instruments like the Rules of Procedure and Evidence give the role and the rights of victims, when in the past international criminal law and international humanitarian law have afforded victims a secondary role.189 Given these positive developments, Schabas means that the victims of serious violations of international humanitarian law of the Rwandan genocide and from the war in former Yugoslavia still must feel disappointed by the two tribunals’ achievements because of their “modest output”.190 As he continues, “the ad hoc tribunals surely benefit the victims of crimes, particularly in their ability to clarify historical truth”, however “there is no compensation or reparation, and rarely even an apology”.191 In the case of the ICTY, the former president of Republica Sprska, Biljana Plavšić, accepted responsibility for crimes against humanity and the charges of genocide were dropped, and gave some form of an apology as she in a statement together with her plea agreement said that by “accepting responsibility and expressing her remorse fully and unconditionally, [she] hopes to offer some consolation to the innocent victims – Muslim, Croat 185 186 187 188 189 190 191

Schabas, W. A., An Introduction tion, 2007, p. 326 Schabas, W. A., An Introduction tion, 2007, p. 326 Schabas, W. A., An Introduction tion, 2007, p. 326-327 Schabas, W. A., An Introduction tion, 2007, p. 327 Schabas, W. A., An Introduction tion, 2007, p. 327 Schabas, W. A., An Introduction tion, 2007, p. 327-328 Schabas, W. A., An Introduction tion, 2007, p. 328

to the International Criminal Court, Third Edito the International Criminal Court, Third Edito the International Criminal Court, Third Edito the International Criminal Court, Third Edito the International Criminal Court, Third Edito the International Criminal Court, Third Edito the International Criminal Court, Third Edi-

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and Serb – of the war in Bosnia and Herzegovina”.192 The Yugoslav Trial Chamber sentenced her to a lesser prison sentence of 11 years imprisonment, however the Trial Chamber said that “undue leniency” would “not fully reflect the horror of what occurred or the terrible impact on thousands of victims”.193 The Rome Statute of the International Criminal Court creates a much stronger place for victims, and Schabas has stated that “one of the great innovations in the Rome Statute is the place it creates for victims to participate in the proceedings”.194 The witnesses can impart their “views and concerns” at any time during the proceedings before the Court, with the limitation according to the Statute that this right is conducted “in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.195 Rule 85 of the Rules of Procedure and Evidence defines victims before the ICC as:196 (a) (b)

‘Victims’ mean natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; Victims may include organizations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

It is possible for victims to participate during all stages of the proceedings before the ICC, before, during and after the trial, and it has become a common practice that the victims have an active role to play in the pre-trial proceedings.197 Importantly if the jurisdiction or admissibility of a case is contested, it is possible for the victims to contribute to this discussion, also in cases where it is the states parties or the Security Council that have initiated the case (Rome Statute Article 19(3)).198 Victims from DRC-Congo have made use of this rule when they 192 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 328 193 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 328 194 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 328 195 Article 68 of the Rome Statute: Protection of the victims and witnesses and their participation in the proceedings; Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 328 196 Rule 85 of the Rules and Procedure and Evidence in Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 328-329 197 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 329; See for instance the Situation in the Democratic Republic of Congo (ICC -01/04-101-t), and Footnote 25 198 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 329 and Footnote 26

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opposed the provisional release of the detainee Lubanga, which contributed to that he remained detained.199 In the case of when an accused enters a guilty plea, if the Trial Chamber considers it to be in the interest of the victims, the Trial Chamber can ask for additional evidence to be presented to reflect the interests of justice.200 An example of such a situation is when the prosecutor and the defence enter a “deal” and the rights and interests of the victims might not have been completely considered in the sentencing as a result.201 13.4.2.1.

The Protection of Victims and Witnesses in Transitional Justice Processes

The first policies and procedures of protection for child witnesses in international courts and tribunals were created by the Special Court of Sierra Leone and child protection agencies in the country in a framework of cooperation, which lead to the agreement “Principles and Procedures for the Protection of Children in the Special Court”.202 These Principles and Procedures established a monitoring committee made up of the Special Court and the child protection agencies, which every month evaluated how the Principles and Procedures had been implemented. In turn the ICC’s protection policies and procedures for child witnesses were guided by the Principles and Procedures agreement from the Special Court of Sierra Leone.203 Of crucial concern is the protection of victims and witnesses in court proceedings, as certain categories of victims and witnesses need particular attention, such as victims of rape and sexual violence and children. It is often linked to great danger for a victim and witnesses to testify before a court, and concerns include reprisals and well as that it is important to make sure that neither the investi-

199 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 329, (Lubanga (ICC-01/04-01/06), Observations des victims a/0001/06, a/0002/06 et a/0003/06 sur la demande de mise en liberté introduite par la défense, 9 October 2006.) 200 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 329, Rome Statute, article 65(4)(a). 201 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 329 202 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 13 203 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 13

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gation nor the trials create further victimization.204 One of the most important responsibilities of the ICC is to protect victims and witnesses especially before and during trials proceedings.205 Before the ICC during the investigation phase, according to the Rome Statute Article 54(1)(b), the prosecutor has to “respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in Article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children”. If it would lead to “grave endangerment” of a witness or his or her family to testify, the prosecutor can withhold disclosure of evidence.206 The Pre-Trial Chamber must ensure “the protection and privacy of victims and witnesses” (Article 57(3)(c) and (e)) and the Trial Chamber has similar rules (according to Article 64(6)(e)). The Trial Chamber according to the Rome Statute Article 68(1) is “to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”. Furthermore, the Trial Chamber needs to take into consideration age, gender, health and the nature of the crime “in particular, but not limited to, where the crime involves sexual or gender violence or violence against children”. In such cases, the Trial Chamber need not have public hearings (Articles 68(2), 69(1)), instead it can hold hearings in camera or have for instance electronic evidence submitted to it. This practice most probably constitutes having the witness testify by video and this way the witness is prevented from having to look at the perpetrator (this practice is very common in national justice systems in cases regarding children).207 The judges according to Rule 88(5) of Procedure and Evidence need 204 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, Rome Statute, arts. 57(3)(c), 64(2), 64(6)(e) and 68, Rules of Procedure and Evidence, Rules 87-88, p. 334 205 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, Rome Statute, arts. 57(3)(c), 64(2), 64(6)(e) and 68, Rules of Procedure and Evidence, Rules 87-88, p. 333 and footnote 44 206 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 335, Rome Statute, Art. 68(5). 207 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 335: It is Article 68 of the Rome Statute that provides for the Protection of the victims and witnesses and their participation in the proceedings: 1.

2.

The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. As an exception to the principle of public hearings provided for in Article 67, the Chambers of the Court may, to protect victims and witnesses or an accused,

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to be “vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence”. That the Trials Chambers are according to the Rome Statute Article 57 (3) (c) to “provide for the protection and privacy of victims and witnesses”, means that “the Pre-Trial Chamber controls the protection of victims and witnesses, especially children.”208 A Special Gender and Children’s Unit which is part of the investigation division has been established within the Office of the Prosecutor, and it is highly functional.209 This was done in accordance with the Rome Statute Article 42(9) which states that “[t]he Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children”.210 This Special Unit consists of a group of individuals who are specialized in how to work with people who have been traumatized, and this concerns particularly children and victims of gender-based violence.211 The Special Unit gives support before, during and after meetings with officials from the ICC and guidelines concerning work with children are being developed, and in those cases where there is a child witness who needs to testify, it is the Special Unit that has the responsibility for such a case.212 The basis for the ICC guidelines is that one of the Court’s most important duties is the protection of victims, which includes that “victims cannot be exposed, that the number of victim witnesses has to be minimized and that each witness,

conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

208 The Rome Statute Article 57 (3c) “Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information;” (Functions and powers of the Pre-Trial Chamber) and Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 116 209 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 116 210 The Rome Statute, Article 42, The Office of the Prosecutor, 42 (9) 211 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 116 212 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 116

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especially child witnesses, has to be provided with maximum protection.”213 It is not possible for the ICC to give physical protection to any victims or witnesses since it does not have its own police force or army and that is the reason why it cooperates with different partners.214 Before the ICC contacts a potential witness a careful assessment is carried out, and in the case of children being interviewed the parents always need to give their permission.215 In these cases the Special Unit conducts field trips in order to be able to properly evaluate whether a child witness should be interviewed. Experts on victims and psychologists assess the physical, mental and psychological state of all witnesses under 18 years of age, which is also done with rape victims and other witnesses that have been traumatized.216 That the situation for victims and witnesses is particularly dangerous and difficult has the Pre-Trial Chamber of ICC remarked on in the Lubanga case. Lubanga had sought interim release which the Pre-Trial Chamber subsequently denied and in its decision the Pre-Trial Chamber made specific reference to the precarious situation of victims and witnesses as it stipulated that Lubanga “now knows the identities of certain witnesses … [I]f Thomas Lubanga Dyilo were to be released and were thus to be in a position to have completely unmonitored communications with the outside world, there would be a risk that he would, directly, or indirectly with the help of others, exert pressure on the witnesses, thus obstructing or endangering the court proceedings.”217 Furthermore, the PreTrial Chamber stated that it had evidence “that witnesses who had appeared in proceedings before the courts of the Democratic Republic of Congo in cases concerning Lubanga’s organisation had been killed or threatened”.218

213

Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 117 214 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 117 215 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 117 216 Moreno-Ocampo, L., The Rights of Children and the International Criminal Court, Chapter 8, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 117 217 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 271, Lubanga (ICC-01/04-01/06), Decision on the Application for the Interim Release of Thomas Lubanga Dyilo, 18 October 2006 218 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 271, Lubanga (ICC-01/04-01/06), Decision on the Application for the Interim Release of Thomas Lubanga Dyilo, 18 October 2006

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13.4.2.1.1. The International Criminal Court and Reparations for Victims and Victims and Witness Unit For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court. The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is this balance between retributive and restorative justice that will enable the ICC, not only to bring criminals to justice but also to help the victims themselves to obtain justice.219

According to the Rome Statute Article 75(1) the International Criminal Court can “determine the scope and extent of any damage, loss and injury to, or in respect of, victims”, and when the victims have not asked for a specific request, the Court can act on its own initiative.220 To have the Court acting independently on behalf of the victims was a controversial issue, with those in favour of such a provision saying “that victims in underdeveloped parts of the world were unlikely to be in a position to exercise the right on their own”.221 The ICC has established the Trust Fund for Victims, the Victims and Witnesses Unit and the Office of Public Counsel for Victims, which are established to ensure the rights and interests of victims.222 As of 30 September 2010 the ICC had received 734 applications from victims in five situations requesting to have their rights for reparations granted, but the ICC Chambers had not made any decisions on reparations as of 25 October 2010.223 With regards to the conviction of Mr. Lubanga in March 2012, being the first conviction by a Trial Chamber at the ICC, the forthcoming decision by the Trial Chamber on reparation to the 129 individuals who have been given the victim’s status by the judges is much anticipated.224

219 ICC Structure of the Court, Victims and Witnesses, www.icc-cpi.int/Menus/ICC/ Structure%20of%20%the %20Court/Victims/Victims%2…, accessed 10/27/2010 220 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 337 221 Footnote 61 in Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 337 222 Schabas, W. A., An Introduction to the International Criminal Court, Th ird Edition, 2007, p. 338 223 ICC Press Release, ICC Registrar launches series on victims’ rights and reparations, hosts working session with Colombian experts, ICC-CPI-20101027-PR590, 27 October, 2010 224 See ICC, Situation in the Democratic Republic of Congo, The Prosecutor v. Thomas Lubanga Dyilo, Case no ICC-01/04-01/06, Case Information Sheet, ICC-PIDS-CISDRC-01-008/12_Eng, Updated 10 July, 2012

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The Rome Statute established the Victims and Witnesses Unit and this Unit is to pay special attention to the needs of children, elderly persons and persons with disabilities.225 A child-support person can be assigned by this Unit throughout the proceedings to help a child to participate as a witness in the proceedings, as well as to provide protection to the child during the proceedings.226 This needs to be done with the parents or the legal guardian of the child giving their consent to have such a support person provided. Furthermore, the Victims and Witnesses Unit must employ people who have expertise in trauma issues, and they need to have expertise in trauma caused by sexual violence.227 The Unit shall to all witnesses and victims who are to appear before the Court as well as to those individuals who because of testimony provided by witnesses before the Court are at risk give different forms of assistance according to the Rules of Procedure and Evidence of the ICC, Rule 17(2)(a):228 (i)

Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection;

... (iii) Assisting them in obtaining medical, psychological and other appropriate assistance; (iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality.

The Unit’s specific duties with regards to witnesses who give testimony concerning sexual violence include, according to the Rules of Procedure and Evidence, Rule 17(2)(b): (iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings.

The UN General Assembly adopted in resolution 60/147 in December 2005 “The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, which give victims,

225 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 340 226 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 340 227 Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 340 228 List on Article 17(2)(a) and 17(2)(b) not exclusive, in Schabas, W. A., An Introduction to the International Criminal Court, Third Edition, 2007, p. 339-340

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which includes children, the right to a remedy and reparations.229 In its preamble the General Assembly makes a reference to Article 39 of the CRC, when it recalls all of the provisions in international instruments that give a right to a remedy for victims of violations of international human rights law.230 The resolution firmly establishes the obligations of the states and several recognized principles including that “[i]n cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him” (III, principle 4). Furthermore the principle of universal jurisdiction is provided for as the resolution states that “States shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction” (III, principle 5), and furthermore the resolution confirms that “statutes of limitation shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law” (IV, principle 6). The remedies for the crimes covered in the resolution include: equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanisms (VII, principle 11 (a–c)). With regards to reparation for harm suffered, the reparation needs to be proportional, and could involve compensation for lost opportunities such as education (IX, principles 15 and 20(b)), and rehabilitation which could involve medical and psychological care (principle 21). 13.4.2.1.2. The Outreach Unit of the International Criminal Court The ICC has a field Outreach Unit that has the purpose of reaching out to the areas in conflict zones that are the most affected by those crimes that fall within the jurisdiction and mandate of the Court. As an example, in 25 February 25–3 March 2008, the Unit together with the Victims Participation and Reparations Section went to the DRC in the eastern part of the country to conduct informa229 General Assembly Resolution, 60/147 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/ RES/60/147, 16 December 2005, and see Smith, A., Basic assumptions of transitional justice and children, Chapter 2, p. 38, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 230 Article 39 of the CRC reads “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, selfrespect and dignity of the child.”

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tion meetings about its activities as well as meeting local civil society organizations, former combatants and victims of the violence.231 The Unit and the Victims Participation Reparations Section went to Bunia, Ituri District in the Orientale Province and to Beni in North Kivu where 367 people came to the meetings. The attendants included civil society organizations, women’s organizations and former combatants. The people were informed about the developments regarding the cases of Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngundjolo. On 24–25 March 2008, the Outreach Unit organized meetings with about 300 police officers from the Bunia garrison.232 Many of these police officers were former members of the different militias fighting in the conflict. The police officers requested more outreach meetings for especially women, and for youth, of which many wanted to join militias. The police officers also urged the Outreach Unit to have more direct dialogues with the local communities about its work. This is a very important part of the work of the ICC, which should be expanded. 13.5.

International Criminal Tribunals and Cases Relating to Women and Children

In terms of protecting children in armed conflict, the jurisprudence of the ICTY with regards to its rape convictions and using age as an aggravating factor when deciding on sentences has especially with its Kunarac case become an important precedent for the ICC and other international or national criminal tribunals.233 The Kunarac case involved Dragoljub Kunarac, leader of a reconnaissance unit of the Bosnian Serb Army (VRS) which was part of the local Foča Tactical Group, Radomir Kovač, a sub-commander of the military police of the Bosnian Serb Army (VRS) and a paramilitary leader in the town of Foča, and Zoran Vuković, a sub-commander of the military police of the Bosnian Serb Army (VRS) and a member of the paramilitary in Foča.234 Kunarac was found guilty of torture and rape (crimes against humanity, Article 5 of the Rome Statute, and violations of the laws or customs of war, Article 3 of the Rome Statute) and enslavement (crimes against humanity, Article 5 of the Rome Statute), and he was sentenced to 28 years imprisonment. The victims were both women and girls, and with regards to the crime enslavement, the Trials Chamber found certain facts to be of 231

Human Rights Brief, Perspectives on Addressing War Crimes, International Criminal Court, Outreach, Volume 15, Issue 3 (Spring/ Summer 2008), p. 45 232 Human Rights Brief, Perspectives on Addressing War Crimes, International Criminal Court, Outreach, Volume 15, Issue 3 (Spring/ Summer 2008), p. 45 233 Tolbert, D., Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY), Chapter 11 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 153 234 ICTY, Case Information Sheet, “FOCA” (IT-96-23 and 23/1) Kunarac, Kovač and Vuković

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particular relevance including that the girls were detained, that they had to do everything they were ordered to, that they were at constant disposal of him and another soldier, suffered degrading treatment and were effectively denied any control of their lives.235 Furthermore the Trials Chamber stated that he not only mistreated the women and girls himself, but that he also organized their transfer to other places, were, as he was fully aware, they would be raped and abused by other soldiers and that his behaviour resulted in the severe penalty. Kovač was found guilty of enslavement (crimes against humanity, Article 5 of the Rome Statute) for having detained two victims who were girls in his apartment for four months, and for imprisoning the girls and exercising his de facto power of ownership treating them as property. He was also found guilty of rape (crimes against humanity, Article 5 of the Rome Statute and violations of the laws or customs of war, Article 3 of the Rome Statute), and outrages upon personal dignity (violation of the laws or customs of war, Article 3 of the Rome Statute), by constantly degrading four victims, who were girls, selling one of the girls to a man for DEM 200 and for handing over one of the girls to his own soldiers, and for selling two of the victims, two girls, to Montenegrin soldiers for DEM 500 each. One of the girls who he had raped and let other soldiers rape and was sold by him was12 years of age at the time and has not been heard of since.236 Kovač was sentenced to 20 years imprisonment. Vuković was convicted of torture and rape (violations of the laws or customs of war, Article 3 of the Rome Statute and crimes against humanity, Article 5 of the Rome Statute) for having together with another soldier taken a girl who they knew was 15 years old from a sports hall to an apartment and raping her. He was sentenced to 12 years imprisonment. In this case the ICTY Trial Chamber took the young age of the victims (from 12 years, and many were 15–20 years) into consideration and viewed it as an aggravating factor in the sentencing of the case.237 Other aggravating factors were the length of time that the rapes were repeated, that there were several perpetrators, and considering the age of some of the victims that it was “particularly vulnerable and defenceless girls” who the crimes had been committed against. In response, the accused appealed this decision and argued among other things that in the former Yugoslavia the minimum age of marriage was 16 years of age, and therefore some of the victims were not young enough for age to be an aggravating 235 Trial Chamber, ICTY, Judgement of Trial Chamber II in the Kunarac, Kovač and Vuković case, The Hague, 22 February 2001, JL/P.I.S./566-e 236 Trial Chamber, ICTY, Judgement of Trial Chamber II in the Kunarac, Kovač and Vuković case, The Hague, 22 February 2001, JL/P.I.S./566-e 237 Tolbert, D., Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY), Chapter 11 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 153: Prosecutor v . Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, Trial Judgement, 22 February 2001

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factor.238 However, the Appeals Chamber did not accept the accused arguments and instead underlined that just the opposite that the practice in the former Yugoslavia had been the sentencing to longer prison sentences for crimes of rape of victims who had been younger than 18 years. The Appeals Chamber argued that it had “an inherent discretion to consider the victim’s age as an aggravating factor”, and that with regards to the young women victims who had been 19 and 20, the Chamber had taken into consideration age as an aggravating factor “by reason of the closeness of that age to the protected age of special vulnerability”.239 In addition, the Appeals Chamber stated that in wartime young women “need special protection in order to prevent them from becoming easy targets”.240 Forced marriage was included in the Statute of the Special Court of Sierra Leone as a crime against humanity in accordance with Article 2(i) Other Inhumane Acts.241 In the case The Prosecutor v. Alex Tamba Brima et al. the Trial Chamber decided that since forced marriage was “an extremely sensitive topic, particularly given its distinct social and cultural consequences and its uniqueness to the Sierra Leone conflict”, it would allow the prosecution to present a witness on the subject, since the Sierra Leonean expert witness on forced marriage, Mrs. Bangura, would be able to provide information on (a) the context within which forced marriage occurred during the conflict; (b) the socio-cultural meaning of forced marriage during the conflict; and (c) the long-term social, cultural, physical and psychological consequences of forced marriage during the confl ict for its victims.242 The Trial Chamber for the Special Court recognized that there was a “need for special consideration to victims of sexual violence and children during their testimonials in court”, and therefore ordered that for victims of sexual violence as witnesses their voices “during their testimony in trial be distorted in the speakers for the public” and that for children as witnesses they testify “with the use of closed-circuit television” and that “the image appearing on the public’s 238 Tolbert, D., Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY), Chapter 11 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 153 239 Tolbert, D., Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY), Chapter 11 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 153: Prosecutor v. Kunarac et al., No. IT-96-23 and IT-96-23/1-A, Appeal Judgement, 12 June 2002 240 Tolbert, D., Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY), Chapter 11 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 153 241 Laucci, C., Digest of Jurisprudence of the Special Court of Sierra Leone, 2003-2005, 2007, p. 30, case Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-04-15-PT 242 Laucci, C., Digest of Jurisprudence of the Special Court of Sierra Leone, 2003-2005, 2007, p. 31: Prosecutor v. Brima, Kamara, Kany, Case No. SCSL-04-16-T

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monitors be distorted”.243 The Special Court became the first court to convict individuals of the crime “forced marriage”, when on 25 February 2009 the three former leaders of the Revolutionary United Front (RUF), Sesay, Kallon and Gbao, were all found guilty of this crime against humanity.244 This conviction was later upheld by the SCSL Appeals Chamber, and the Special Court also became the first court to aside from the forced marriage convictions convict individuals of sexual slavery (as a crimes against humanity), for the use of child soldiers and attacks on peacekeepers (as other serious violations of international humanitarian law).245 There are some debates about the implications of the decision by Sierra Leone’s Special Court on forced marriage as it is being applied in other contexts such as in northern Uganda, where civil society groups and transitional justice experts apply the terminology of forced marriage and the jurisprudence from Sierra Leone’s Special Court to the grave violations of international law that the LRA has committed including abduction, forced labour, forced participation in hostilities, systematic and long-term rape, enforced pregnancy and forced domestic duties.246 The validity of this has been challenged by other lawyers and human rights activists, who point out that applying the term forced marriage to these crimes risks not give an adequate picture of the reality of the crimes that these girls and young women have been subjected to, but that instead their suffering could become normalized or trivialized.247 Also, to apply the term “forced marriage” to crimes of abduction, rape and forced labour only in countries in armed conflict and not to such crimes when committed in other circumstances is part of the debate.248

243 Laucci, C., Digest of Jurisprudence of the Special Court of Sierra Leone, 2003-2005, 2007, p. 478-479; Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-04-15-PT, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, 5 July 2004, para. 32-35. 244 Irin, Sierra Leone: “Forced marriage” conviction a first, Freetown, 26 February 2009 245 Special Court for Sierra Leone Office of the Prosecutor, Press Release, Prosecutor welcomes convictions in RUF appeals judgment, Freetown, Sierra Leone, 26 October 2009 246 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 11 247 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 11 248 Siegrist, S., Child rights and transitional justice, Chapter 1, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 11

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In the Act that established the Truth and Reconciliation Commission for Liberia protective measures for women and children as witnesses were included:249 The TRC shall employ specialists in children and women’s rights and shall ensure that special measures or mechanisms are employed that will enable women and children to provide testimony to the TRC, while at the same time protecting their safety and not endangering or delaying their social reintegration or psychological recovery.

It was found that almost all the women and girls who came forward as witnesses before the Special Court for Sierra Leone exhibited symptoms of post-traumatic stress disorder, had feelings of shame and guilt and some were considered to be severely traumatized.250 To testify publicly before such a court provokes a lot of fear, and the fact that many women and girls had been rejected by their families and communities because of the stigma associated with rape and sexual violence that exists in Sierra Leone, the women’s and girls’ feelings of fear intensified, in combination with the fact that many had not told anyone before about the rape.251 To in such situations testify before a perpetrator in a court room makes the situation especially difficult and emotional, and traumatic memories and feelings can resurface by being in the presence of the perpetrator, making the situation extremely stressful for the woman. For the girls who became “bush wives” as a result of being abducted and then forced to marry one of their abductors, a situation that often involves repeated and long-lasting sexual abuse, for such a girl to become a witness and testify against “the husband” and/or his friends can be extremely difficult and complicated, as some of these girls:252 suffer not only from the consequences of the sexual violence as such, but also from the psychological impact of the relationship with commanders and the power they had over the girls, including over their fate and life. The internal confl ict from which

249 An Act to Establish the Truth and Reconciliation Commission of Liberia, 2005, p. 26 250 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 137 251 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 137 252 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 137

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these girls often suffer is just as important as the social stigma and the lack of recognition as a victim. There is the resulting shame and the guilt, but also the emotional attachment to the ‘husband’, often reinforced by the presence of ‘rebel children’. The women and girls find themselves in a position of having an ambiguous loyalty towards their husband/the perpetrator, a relationship frequently marked by abuse, but also by protection and status. For, being a rebel’s wife often saved their lives and granted them special benefits like access to food. Testifying about these facts can be emotionally demanding but sometimes also liberating.

These cases show the necessity of providing victims/witnesses of extreme violence and abuse with proper and adequate psychological support and protection, and that international and national tribunals, courts and truth commissions need to step up to respond to the needs of the victims/ witnesses. As was the case in Sierra Leone, since there was almost no documentation left in the country following the war, the Special Court has been almost entirely dependent on victims and/or witnesses to come forward and testify.253 They have been absolutely crucial to the success of this body, otherwise it would not have been possible to have any trials and convictions. Therefore the support they were given by the Victims and Witnesses Unit of the Special Court was instrumental, and it shows that when adequate attention and resources are given to these issues, the results are also very positive. As has been shown, there are many complexities involved with coming forward as a witness, and therefore it is necessary to gain knowledge about these complexities so as to be able to provide the right means for women, men and children to come forward and testify. An Michels, the former Head of the Psychosocial Support Team of the Witnesses and Victims Unit of the Special Court for Sierra Leone (2003–2005), has pointed out some significant benefits that women and girls can gain from testifying before a court, national and international, with adequate support about rape and sexual assault. One example is of a victim of sexual violence who was able to testify in her own language through a translator, and she reported that by being able to do that she felt safe, and since very few could understand what she was saying and not hear her words “directly from her own mouth” it all made her feel safe.254 Michels gives an example of how some women and girls testifying 253 Michels, A., ’As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children, at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 134 254 Michels, A., ’As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children, at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 143 Michels, A., ’As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children, at the Special Court for Sierra Leone,

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before the Special Court for Sierra Leone regained a sense of control as a result of them testifying, which they had momentarily lost as a result of the rape and sexual assault:255 Once they feel during their testimony that they are in control of the events, in contrast to the time of the sexual abuse, they often show tremendous emotional strength. Also, some women experienced their exposure to the accused, in some case also the alleged perpetrator, as a moment of catharsis. This feeling was reinforced by the special environment of a courtroom. In post-trial debriefings some women and girls referred to this shift ing of roles, the sense of power they experienced and the exposure as important factors in their recovery.

That protective measures and for instance in camera testimonies are not always seen as to be in the best interests of the victim by the victim herself is further shown by that the Sierra Leone Truth Commission members became surprised by the fact that several Sierra Leonean women who had been sexually abused during the armed conflict came forward and specifically inquired to be able to give their testimony before the Truth Commission “in public for all to hear about the abuses they suffered”.256 As the International Center for Transitional Justice found regarding these women who had been raped and sexually abused and came forward like this:257 For many, the public denunciation of this crime is important to fighting the stigma associated with it; privatizing it calls on the victim to bear the full burden of the crime-once again coding it in shame and secrecy. While many knew the statistical accounts of widespread sexual abuse in Sierra Leone, it was public testimony that most powerfully and evocatively evidenced these widespread and systematic patterns and the enormity of their impact on the lives of Sierra Leonean women.

It is important to keep in mind that the pre-existing social vulnerability of women and girls before the war in Sierra Leone, which included gender discriminaChapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 141 255 Michels, A., ’As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children, at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 143 256 International Center for Transitional Justice, Truth Commissions and Gender: Principles, Policies and Procedures in Freeman, M., Truth Commissions and Procedural Fairness, 2006, p. 259 and footnote 156 257 International Center for Transitional Justice, Truth Commissions and Gender: Principles, Policies and Procedures in Freeman, M., Truth Commissions and Procedural Fairness, 2006, p. 259 and footnote 156

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tion and high levels of sexual and domestic abuse, were linked to their vulnerability during the war.258 13.6.

Participation of Children in Transitional Justice Processes

Several considerations need to be taken into account regarding the participation of children in transitional justice processes as victims and/or witnesses or as perpetrators, and one consideration is that such participation needs to be childfriendly and child-rights based using the CRC as the foundation.259 To apply a child rights-based approach to criminal accountability through international or national courts, and/or truth commissions or other bodies, Arts means, must require that the CRC will be used as the framework for such an approach, as the Convention brings together different parts of international law such as human rights law, international humanitarian law and juvenile justice law.260 Arts argues that the three general principles of non-discrimination (Article 2), best interests of the child (Article 3) and participation of the child (Article 12) are first of all to direct this approach, and especially Article 3 is of significant importance in the choice of what kind of criminal accountability mechanism that would be appropriate, and in determining the extent to which children as victims, perpetrators and/or witnesses should participate in these as it stipulates that:261 In all actions concerning children, whether undertaken by public or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

258 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 135 259 See for instance Aptel, C., International Criminal Justice and Child Protection, Chapter 3, Parmar, S., Roseman, M J, Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, 2010, p. 9697 and Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K., and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 10 260 Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K., and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 10 261 Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 12

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In the case where criminal proceedings are to be undertaken towards children, Articles 37 and 40 of the CRC establish minimum standards for the arrest and detention, legal assistance and fair trial provisions for children that both national and international bodies need to take into account, and Article 40(3)(a) also stipulates that a minimum age for a child to be held legally criminally accountable needs to be set.262 The principle of participation in Article 12 of the CRC is of crucial importance to take into account with regards to the participation in criminal proceedings of children as perpetrators, victims and/or witnesses as it speaks to the agency and capacity of the child.263 Article 12 stipulates that: 1.

2.

States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.

As Arts comments “fundamental changes in attitudes towards children” also among those who work with children’s issues need to take place in order for the principle of participation to be fully implemented.264 Finally the principle of non-discrimination in Article 2 of the CRC needs to be applied within a child rights-based approach, which stipulates that: 1.

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

262 Articles 37 and 40 of the UNCRC, Arts, K., General Introduction: A Child RightsBased Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 12 -13 263 Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 14 264 Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 14

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2.

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

When applying a child rights approach to transitional justice, a gender sensitive perspective must be used to incorporate the different needs and perspectives of boys and girls, keeping in mind that their roles and experiences might differ before and after war.265 Arts considers Article 6 “survival and development” as not just a general principle but as the “main objective” of the CRC and means that it is therefore of another category than these three general principles.266 She argues that as the states parties to the CRC are to guarantee the “survival and development” of the child, this provision cannot just be considered to be another general principle.267 Instead the three other principles as general principles should not only be taken into account in the interpretation and implementation of the Convention, but also in order to achieve the objective of ensuring the “survival and development” of the child. In this context it is important to note that the states parties to the American Convention are obliged to establish specialized tribunals for children who are to stand trial in criminal proceedings, and this is the only treaty that establishes such a duty.268 The states parties under the CRC in Article 40(3) are merely under the obligation “to promote” the setting up of specific tribunals for children.269 This needs to be seen in the context that the CRC does not set a minimum age 265 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman, M J, Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, 2010, p. 50 266 Article 6 of the CRC reads as follows: 1. States Parties recognise that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child, Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 10 267 See discussion in Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 10-11 268 Van Bueren, G., The International Law on the Rights of Children, 1998, p. 23; The American Convention on Human Rights of 1969, Article 5: Right to humane treatment, (para. 5): Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 269 Van Bueren, G., The International Law on the Rights of Children, 1998, p. 23, footnote 164

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for when a child is considered to be held criminally accountable and thus able to stand trial in a criminal proceeding. Article 40(3) stipulates: 3.

States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

As has been noted it is important to establish specific rules for certain categories of deponents, such as those individual persons, women, men and/or children, who have been victims of rape and sexual violence in order to facilitate for them to give evidence in trials or before truth commissions. For instance of the individuals giving accounts of sexual abuse to Ghana’s Truth and Reconciliation Commission more than half were men.270 The truth commission established for Haiti in 1995 was to “pay special attention to politically motivated crimes of a sexual nature committed against females”, and the truth commission for Sierra Leone had a mandate to foster “constructive interchange between victims and perpetrators, giving special attention to the subject of sexual abuses and to the experiences of children within the armed conflict”.271 The Sierra Leone truth commission was in addition to “implement special procedures to address the needs of such particular victims as children or those who have suffered sexual abuses as well as in working with child perpetrators of abuses or violations”.272 The Special Court for Sierra Leone and the International Criminal Court have been pioneers in providing much needed attention to the roles and rights of children affected by armed conflict in the area of international criminal law and accountability mechanisms.273

270 Freeman, M., Truth and Reconciliation Commissions and Procedural Justice, 2006, p. 179 and footnote 85 271 Freeman, M., Truth and Reconciliation Commissions and Procedural Justice, 2006, p. 179-180 272 The Truth and Reconciliation Act 2000 for Sierra Leone, s. 6(2), in Freeman, M., Truth and Reconciliation Commission and Procedural Justice, 2006, p. 180 273 Arts, K., General Introduction: A Child Rights-Based Approach to International Criminal Accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 12

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13.6.1.

Participation of Children Before the Special Court for Sierra Leone

The Witnesses and Victims Section of the Special Court for Sierra Leone is mandated “to produce witnesses for the Court in the best physical and mental state possible and to ensure that they suffer no harm, loss or threat as a result of their testimony”.274 In addition this Section needs to offer effective protective measures and security arrangements, and to arrange for short and long-term plans for the victims’ and witnesses’ protection and support. Furthermore, the Section is to ensure “that witnesses receive relevant support, counseling and other appropriate assistance, including medical assistance, physical and psychological rehabilitation, especially in cases of rape, sexual assault and crimes against children”.275 In order to be able to deliver this assistance, the Rules of Procedure and Evidence stipulate that “experts in trauma, including trauma related to crimes of sexual violence and violence against children be made available”.276 In Sierra Leone the expert, An Michels, was a psychologist, and she has worked together with counsellors, paramedical and support staff from Sierra Leone. As women, victims of gender-based violence and children were considered to be an especially vulnerable group of witnesses, extra protective measures were established which were aimed at preventing them from developing further psychological harm and suffering from testifying.277 As a result the Special Court made a decision that closed circuit television would be used for all child witnesses (under 18 years) who testified before the Court and that a voice distortion system for victims of sexual assault and gender crimes could be used after a decision by the Court.278 In addition, a counsellor from the Witnesses and Victims Section has been allowed by 274 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 138 275 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 138 276 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 138 277 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds. International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140-141 278 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140-141

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the Court to in some cases be in the witness box together with the witness when the witness is testifying.279 A closed circuit television for testifying is described as:280 The child sits in a separate room in front of a camera and on a split screen sees himself and the person in the Courtroom who is asking questions to the child. Those in the Courtroom see the child on their monitor while the public can only hear the child’s voice. Although the Court’s procedures with a closed circuit television are identical to a hearing in open Court, it reduces the stress which the child experiences and increases her/his comfort level. By only showing the person who is talking to the child the information input is filtered, the Courtroom environment is less overwhelming and the child can concentrate more easily on the questions asked. A direct and open confrontation with the accused is avoided. It is as if there is a mental protective screen between the child witness and the persons present in the Courtroom.

As an example of how the Trial Chamber of the Special Court for Sierra Leone decided on Rule 69 of the Statute on the Protection of Victims and Witnesses and what kind of protective measures the Court should take with regards to children as witnesses, which included voice distortion and closed-circuit television, the case of the Prosecutor v. Sesay, Kallon, Gbao is illuminating of the challenges a child witness is faced with before a criminal tribunal.281 In this case, a former child soldier was to appear as a witness before the Special Court and a psychologist, An Michels, testified that the child suffered from post-traumatic stress disorder, and that he was severely traumatized:282 She also emphasized that he was particularly vulnerable given the level of his mental development due to his young age, the fact that he was a child ex-combatant and the 279 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 141 280 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140 281 Laucci, C., Digest of Jurisprudence of the Special Court of Sierra Leone, 2003-2005, 2007; Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-04-15-T 282 Laucci, C., Digest of Jurisprudence of the Special Court of Sierra Leone, 2003-2005, 2007, p. 478-479; Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-04-15-T, Ruling on the Oral Application of the Prosecution to Vary Protective Measures of Witness TF1-141, 6 April, 2005, para. 6: the psychologist was An Michels who was the Head of the Psychosocial Support Team of the Witnesses and Victims Unit of the Special Court for Sierra Leone between 2003-2005.

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fact that he was confronted with the traumatic events when he was much younger. As a result of these factors, she opined that this particular witness has a higher risk for retraumatisation from testifying. In light of her findings, Ms. Michels recommended that the Witness testify via closed-circuit television as this would create a quieter and less overwhelming environment for him and also prevent a direct confrontation. In addition, she recommended that he testify in the presence of a support person from the Victims and Witness Unit with whom the Witness is familiar in order to increase his comfort level and to control his feelings of fear and depersonalisation.

It is important in this context to take into account that child soldiers often look much younger than they are because of a very difficult and demanding life as a soldier, and as a result it can be very difficult to determine their correct age. At the same time, on a behavioural level some of these children or adolescents also can be perceived of as adults, while their emotional development can be “seriously disturbed”.283 Their mental and biological age does not always correspond, and therefore different developmental factors need to be taken into consideration since they assist in determining the risk of retraumatization for a witness.284 To link a child’s biological age to whether a closed circuit television should be used is thus not always enough, and in the case of the Special Court for Sierra Leone, a witness who was a bit older than 18 was granted the use of closed circuit television because of this issue.285 Being cross-examined is often also seen as very difficult and while the reason for this practice is most often understood, witnesses may perceive this process as if their suffering is being minimized, and many times “serious emotional reactions” are triggered by the repetition of questions concerning traumatic events.286 Most of the child witnesses before the Special Court for Sierra Leone were former child soldiers and they were assessed by the Witnesses and Victims 283 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140 284 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140 285 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 140 286 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 142

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Section’s psychologists and psychological counsellors, and it was found that most of them had symptoms of behavioural disorders, affect-deregulation, intrusive thoughts and nightmares and that some had suicidal thoughts.287 In addition these children grow up in an environment where a high number of people as a result of the war have been suffering from trauma, and where lack of health care, education and poverty has a direct influence on the physical and mental health of the people.288 It is important to recognize that since most of the former child combatants were both victims and perpetrators many have difficulties reconciling these complexities emotionally and mentally, and as An Michels explains:289 The process of emotional attachment to parents and other relatives-crucial in the psychological development of a child was often severely disturbed. During the war, rebel leaders regularly became attachment figures for these children. In spite of the suffering and abuse, the children involved developed an ambiguous loyalty to the rebel leaders as ‘insiders’. Under these circumstances, child witnesses can experience their testifying in Court against these leaders as a form of disloyalty towards primary attachment figures, even at an unconscious level. … Especially a public and direct confrontation can be very disruptive to children and might resurface attachment problems towards their parents, other relatives and carers. Accordingly, while giving evidence stress levels might increase significantly.

Another important factor in relation to former child soldiers coming forward and testifying was the stigma that was associated with the children having been child soldiers, and this led to that some children were afraid that if it became publicly known that they had been testifying and/or what they had done as child soldiers that this would again make their relationships with their family and community difficult and would disrupt their education, or that they because of security concerns would have to leave their families.290 287 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 136 288 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 134 289 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 136-137 290 Michels, A., ‘As if it was happening again’: Supporting especially vulnerable witnesses, in particular women and children at the Special Court for Sierra Leone, Chapter 10 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 137

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13.6.2.

Accountability of Children as Perpetrators

Angela Veale poses several questions with regards to criminal accountability of children such as: “What are the appropriate responses to children and young persons who have perpetrated violence and committed gross human rights violations in the context of armed conflict?”, and “What is the anthropological or psychological evidence regarding children’s capacity to be rational and responsible participants in a conflict?”291 Today children’s power and agency is being stressed by current social research and child psychology, and “there is a broad theoretical push against theorising ‘incompetent children’”.292 She means that one key question with regards to the issue of children’s criminal responsibility is “if child agency is recognised as possible, and particularly in peace-building … whether it is possible to maintain a stance on child perpetrators of gross human rights abuses as passive, lacking rational thinking skills, and demonstrating an inability to consent, on the basis of them being minors”.293 The issue is whether if indeed the child is to be considered to have the agency and capacity to be actively involved in violence and armed conflict, and later on to play an active part in peace-building, is it then, in the context of criminal accountability, possible to claim that child perpetrators should not be held accountable for their actions under any circumstance? Arts has highlighted that criminal proceedings are not the only choices regarding accountability of children as several other types of procedures and/ or rehabilitation programmes are available.294 Veale points at restorative justice mechanisms as appropriate choices conducted within “local cultural meanings and understandings of children, of recruitment dynamics, of developmental transitions, of what is developmentally expected, and of cultural mechanisms for acknowledging wrongdoing and means of reparation”.295 Local, national and 291 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 98 and 100 292 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 99 293 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 101 294 Arts, K., General Introduction: A child rights-based approach to international criminal accountability, Chapter 1, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 14 295 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 107

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cultural definitions of who is a child or youth are also considerations to take into account here. Mezmur is a current member of the African Committee of Experts on the Rights and Welfare of the Child, and he has previously argued that children who have committed crimes during their time as child soldiers need to face some form of accountability, and underlines that accountability “can take many forms”, stating that “[t]he question, rather, should be how the accountability of these children should be established while continuing to regard them as beneficiaries of special protections attributable to their vulnerable status”.296 As a consequence of having been a child soldier, identity transformations may have taken place between a child and his/her community and these transformations need to be examined in the context of reintegrating the child back into the community.297 The changes in the identity transformations and in the relationships between the child and the community members are also dependent on for how long a period the child was gone. Veale raises the issue that if the child has committed gross human rights violations without coercion, there is a need for some form of accountability in order to facilitate the reintegration of the child, and that this could possibly be done within the context of some type of “restorative justice” which would need to acknowledge and address these identity transformations.298 It is a fact that many people are reluctant and might fear the former child combatants who return home, since they know that they have committed crimes as well as the kind of crimes they have committed. In this context if a child is to successfully be able to reintegrate, the community will need some form of support as well as help with the integration in this particular aspect.299 It might not always be in the best interests of the child or of the community to gloss over the atrocities that took place, when in fact they did cause a lot of pain, fear, suffering and loss. To acknowledge the atrocities committed and to establish

296 Mezmur, B., D., Children at both ends of the gun: Child soldiers in Africa in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 211 and 213; Benyam Dawit Mezmur comes from Ethiopia, is the 2nd Vice Chairperson of the Committee, his term of office is between July 2010 and July 2015, http://www.acerwc. org/experts/, accessed 2011-06-24 297 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 105 298 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 105 299 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 105

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some kind of reparation would most probably be needed in order for reintegration to be successful.300 Aptel argues that for juvenile offenders restorative processes which focus on issues such as diversion, mediation, truth-telling and reconciliation are the most suitable avenues for making children accountable for their activities, in contrast to criminal processes.301 She means that it could help the children rehabilitate and reintegrate into their families and communities if they would be able to freely and willingly talk about their criminal behaviour in an appropriate setting that takes into account the best interests of the child.302 When providing an appropriate setting where children’s rights are respected, processes which focus on acknowledgement and reconciliation and not on litigation and punishment can give children who have committed crimes the possibility to “acknowledge their responsibility and express contrition, regret or remorse, and also explain their own victimization and wish to be integrated into their families and communities”.303 When such processes are conducted with the intent to also explain the causes of the children’s involvement in the conflict, such as them having been forcibly recruited into an armed group and ordered to commit certain acts, this would enable their families and communities to better understand their involvement in crimes and thus the stigma surrounding them might also lessen.304 By engaging in restorative processes that focus on for instance reconciliation and truth telling, Aptel means that children would be provided with an opportunity to demonstrate resilience and agency, and that such processes “establish that children bear rights as well as obligations, and that ultimately, consistent with their age and development, they are individuals responsible for their acts, able to actively participate in mechanisms and decisions affecting their lives”.305

300 Veale, A., The criminal responsibility of former child soldiers: Contributions from psychology, Chapter 7 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 105 301 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 98 302 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 98 303 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 110 304 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 110 305 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 110

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In this context Smith brings up the challenges that an approach of not involving alleged child perpetrators into international criminal justice mechanisms brings, as victim’s families may not understand why someone, also a child, who killed their family members without seemingly being forced to do so would not be held accountable.306 In addition, she points out that in cases where deterrence is one goal of the transitional justice mechanism in a given situation, “breaking a cycle of violence and demonstrating that actions have consequences”, in such cases to promote that children should not be held accountable for their actions even as they have committed crimes under international law, risks “designating special classes of people to whom the rules do not apply, which is an anathema to the rule of law more generally”.307 Instead it should be necessary to put effort into examining what would be “the most appropriate forum for achieving accountability for children accused of crimes under international law”.308 Here considerations such as the factual circumstances of the crime, the goals of the transitional justice process, and the child’s individual situation would all need to be taken into account, in the context of the best interests and the rights of the child.309 The development towards that children have a role to play in transitional justice processes has gone from viewing children as passive objects in need of protection towards them being considered as rights-holders “who need assistance in exercising their rights, appropriate to their stages of development”.310 The right of a child to participate including the right not to participate in transitional justice processes has only recently been acknowledged, and as a consequence of “the adoption of the CRC and the reconceptualization of the child as a rights-holder, it is recognized that transitional

306 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 42 307 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 42 308 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 43 309 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 43 310 Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 43, Here Smith makes reference to A World fit for children, UN General Assembly resolution, 11 October 2002, A/RES/S-27/2

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justice processes and mechanisms need to hear the voices of children, expressing their thoughts and needs from their own unique perspectives”.311 13.6.2.1.

When Is a Child Too Young to Be Tried?

The development of international criminal law and practice over the last decade indicates that children are not to be tried by international criminal courts for serious international crimes.312 The statutes of the ICTY and ICTR do not set an age limit for prosecution and they have not investigated and prosecuted children, while the Rome Statute for 1998 does stipulate that the ICC “shall have no jurisdiction over any person who was under the age of eighteen at the time of the alleged commission of a crime”.313 Some mixed courts (both international and national in character) have jurisdiction to bring children to trial under certain circumstances for serious crimes, such as the Special Panels for Serious Crimes in East Timor, which has the age limit for individuals over 12 years of age, the War Crimes Chamber in the Court of Bosnia and Herzegovina, which can try individuals over 14 years of age, while the SCSL can try individuals over 15 years of age.314 Only the Special Panels for Serious Crimes in East Timor has tried an under-aged person initially for crimes against humanity for which he pleaded guilty, but convicted him for manslaughter, and he was 14 years old when the crimes were committed.315 As Aptel points out, the age of criminal responsibility has not been established to be 18 years age; the ICC Rome Statute only stipulates that it does not have jurisdiction to try children under the age of 18 years, which is reflected in the Statute of the Special Court for Sierra Leone for instance, and that it rather depends on the prosecutorial strategies in such jurisdictions whether or not a

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Smith, A., Basic assumptions of transitional justice and children, Chapter 2, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 43 312 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 100 313 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 101 314 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 102 315 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 103

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child should be prosecuted.316 The first Chief Prosecutor for the Special Court for Sierra Leone, David Crane, has stated “that children under fifteen per se are legally not capable of committing a crime against humanity and are not indictable for their acts at the international level. The atrocity is not what the child has done, but the opportunity, conditions, and circumstances that allow them to commit these horrors.”317 Instead the prosecutor of the Special Court “jointly and severally charged” all indictees with the crime of the use of children as child soldiers, all of which were found to have had command responsibility over the group of combatants they had been leading which included child soldiers.318 When the leadership of the Armed Forces Revolutionary Council (AFRC) was found guilty of having unlawfully recruited child soldiers under 15 years of age into an armed force on 20 June 2007 by the Trial Chamber II of the Special Court, this was the first time ever that military commanders and political leaders had been found guilty of this crime.319 Crane explains that while the two Protocols to the Geneva Conventions provide “a specific prohibition on the use of children in armed conflict”, they do not explain the criminality of the act of using child soldiers.320 But “the implication is that the violation of the Geneva Conventions related to civilians as noncombatants, coupled with the Additional Protocols, implies a grave breach when using children in combat.”321 Further, the act of child recruitment as a crime had

316 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 105 317 David Crane was the Chief Prosecutor for the Special Court for Sierra Leone from April 2002-July 2005, Crane, D., Strike terror no more: Prosecuting the use of children in times of conflict-the West African extreme, Chapter 9, in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 121 318 Crane, D., Strike terror no more: Prosecuting the use of children in times of conflictthe West African extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 126 319 Human Rights Brief, Crane, D. M., Prosecuting children in times of confl ict: the West African experience, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 13; Brima et al., Case No. SCSL-04-16, Judgment (Trial Chamber), June 20, 2007 320 Crane, D., Strike Terror No More: Prosecuting the Use of Children in Times of Conflict-the West African Extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 129 321 Crane, D., Strike Terror No More: Prosecuting the Use of Children in Times of Conflict-the West African Extreme, Chapter 9 in Arts, K. and Popovski, V., Eds.,

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become part of customary international law with the adoption of the CRC as this Convention criminalizes the recruitment of children.322 Children between 15 and 18 years of age can be indicted according to Article 2 of the Statute of the Special Court of Sierra Leone which gives the prosecutor such a right.323 This is the first international document that has a provision that allows for the prosecution of children for international crimes, which sets a precedent.324 However, at an early stage the prosecution made the decision not to prosecute children between 15 and 18 years of age because they do not have “the sufficiently blameworthy state of mind to commit war crimes, as the prosecution’s intent was “to rehabilitate and reintegrate this lost generation back into society”.325 In addition, the intention of UN Security Council and the drafters of the Special Court’s Statute was that “only” those who had the “greatest responsibility” be prosecuted.326 That is the individuals “who aided and abetted; created and sustained the conflict; planned, ordered, or directed the atrocities”, and no child in Sierra Leone did any of this, argued the prosecutor.327 The prosecution stated in November 2002 that no child soldier was to be prosecuted, since they could not be held legally responsible for the violations that they had perpetrated

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324 325

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International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 129 Crane, D., Strike Terror No More: Prosecuting the Use of Children in Times of Conflict-the West African Extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p. 130 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 14 Mezmur, B., D., Children at both ends of the gun: Child soldiers in Africa in NielsenSloth, J., Ed., Children’s Rights in Africa, A legal perspective, 2008, p. 211 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 15 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 15 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 15

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at the time of the war.328 Instead of prosecution, rehabilitation was deemed the most proper avenue for the children: 329 Legally, morally, and politically the international community, including the United States, has separated out children from horrors of combat, to protect and nurture, to rehabilitate and support, not to punish.

The leadership for the Revolutionary United Front (RUF), the Armed Forces Revolutionary Council (AFRC), the Civil Defense Force (CDF), the former President of Liberia, Charles Taylor, Johnny Paul Koroma, and the deceased indictees Foday Sankoh and Samuel Bockerie were all charged with the recruitment and use of child soldiers, specifically conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities.330 They were all found individually criminally liable for the use of children in times of armed conflict either according to Article 6(1) of the Statute of the Special Court for Sierra Leone, aiding or abetting, or Article 6(3) under command responsibility.331 One of the indictees, former Minister of Interior Samuel Hinga Norman of the Civil Defence Forces (CDF), fi led a motion stating that at the time when the crime he was charged with was to have been committed, the recruitment and use of child soldiers was not a crime, however the Appeals Chamber of the Court ruled in 2004 that child recruitment indeed had been “criminalized under customary international law by the time frames relevant to the indictment”, and as a result dismissed the motion and this was also the first time a high court had held “that the recruitment of child soldiers was a crime under international law”.332 328 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 15 329 Crane, D. M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 15 330 Crane, D., Strike terror no more: Prosecuting the use of children in times of conflictthe West African extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p.126 331 Crane, D., Strike terror no more: Prosecuting the use of children in times of conflictthe West African extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of Children, From Peace to Justice Series, 2006, p.126 332 A second indictee followed suit, Crane, D., Strike terror no more: Prosecuting the use of children in times of conflict-the West African extreme, Chapter 9 in Arts, K. and Popovski, V., Eds., International Criminal Accountability and the Rights of

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Some minimum standards for the prosecution of juvenile offenders that should be taken into account include the CRC, the Beijing Rules, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh Guidelines”) and the Guidelines for Action on Children in the Criminal Justice System.333 13.6.2.2. The Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes The UNICEF Innocenti Research Centre and the Human Rights Program at Harvard Law School convened a conference in April 2009, and the participants agreed on a set of principles to guide different actors in children’s involvement in transitional justice processes, called “The Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes”.334 These Key Principles reflect the current consensus of legal experts and child protection actors regarding the participation of children in such processes. The Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of Children’s Rights in Truth, Justice and Reconciliation Processes, Outcome of Children and Transitional Justice Conference, Harvard Law School, Cambridge, Massachusetts, USA, 27–29 April 2009:335 “The Key Principles are intended to better inform the protection and participation of children in truth, justice and reconciliation processes and to serve as groundwork

Children, From Peace to Justice Series, 2006, p. 127, and footnote 29 see Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, and Crane, David M., Prosecuting children in times of conflict: the West African experience, Human Rights Brief, Center for Human Rights and Humanitarian Law, American University Washington College of Law, Volume 15, Issue 3, Spring/Summer 2008, p. 13-14 333 Aptel, C., International Criminal Justice and Child Protection, Chapter 3, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, p. 106 334 Siegrist, S., Child rights and transitional justice, Chapter 1, p. 14, footnote 35, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010 335 Siegrist, S., Child rights and transitional justice, Chapter 1, p. 14 and Annex, in Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010

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for further elaboration and consensus-building on the role of children in transitional justice.”336 … IV. Specific Principles and Programmatic Recommendations Judicial mechanisms … “There is emerging consensus that children associated with armed forces or armed groups who may have been involved in the commission of crimes under international law shall be considered primarily as victims, not only as perpetrators.” “In principle, children should not be held criminally responsible under an international jurisdiction.” “Children accused of crimes under international law must be treated in accordance with the CRC, the Beijing Rules and related international juvenile justice and fair trial standards. Accountability measures for alleged child perpetrators should be in the best interests of the child and should be conducted in a manner that takes into account their age at the time of the alleged commission of the crime, promotes their sense of dignity and worth, and supports their reintegration and potential to assume a constructive role in society. In determining which process of accountability is in the best interest of the child, alternatives to judicial proceedings should be considered wherever appropriate.”… “Detention of children should be used only as a last resort and for the shortest appropriate period of time. Children who are detained should be separated from adults, unless it is not in their best interests to do so. Children should never be detained solely due to their alleged association with an armed force or group.” … Truth commissions and truth-seeking mechanisms: “Truth commissions should take into account children’s agency and their role as active citizens contributing to justice and reconciliation in their communities. The involvement of children in truth commissions should thus include participation in diverse activities, such as outreach, statement-taking, thematic and closed hearings, creative expressions, community-based reconciliation efforts, contribution to the formulation of recommendations, and the preparation of a child-friendly report.” …

In this context it is important to bear in mind that with the Paris Principles the governments endorsing it agreed that those child soldiers who have committed crimes while still in armed forces or in an armed group should be treated prima-

336 Parmar, S., Roseman M. J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-telling, accountability and reconciliation, March 2010, Introduction, p. xxiv

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rily as victims of violations of international law (Paris Principles 3.6).337 While not ruling out that child soldiers might be held accountable in some cases, the Paris Principles clearly underline that restorative justice and social rehabilitation must be the alternatives to any prosecution. The Paris Principles in this context also give reference to that children need special protection because of their status as children. In addition, the Paris Principles 3.7 states that instead of prosecutions, different alternatives to judicial proceedings “must be sought” making reference to the CRC and other international standards for juvenile justice. The other international standards for juvenile justice referred to are the 1967 International Convention on Civil and Political Rights, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), the United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”).338 13.7.

Transitional Justice and Truth and Reconciliation Commissions

For a truth and reconciliation commission (from here on truth commission) to be effective certain areas need to be identified as priority areas for the truth commission to investigate and some of these areas need to be violations committed against children particular to a given country, and rape and sexual violence that have been committed against especially women and girls during an armed conflict and as well as in its aftermath. With regards to gender-based violence to have a truth commission is an excellent opportunity to look at the root causes of why such violence could take place by linking earlier gender discrimination to the violence and to the lack of protection of women and girls in an armed conflict to the view and status of them in the society and to the need for reforms of societal institutions and laws, reforms that a truth commission can recommend. A truth commission for instance should not only investigate gender-based violence in itself, because gender-based violence cannot be looked at as a side-effect of the war or a matter happening in the periphery of what is usually considered to be more important issues going on. For a society to fully recover and be able to develop, it is a necessity to examine a range of issues such as the status of the woman and the girl in a given society, child marriage, discriminatory laws, inheritance laws, property laws, the political space for women as well as the situation for women political candidates. Further it is crucial to examine issues such as how state institutions are being perceived and by whom, and how to reform the police and military since they did not protect the women and children during an armed conflict, at the same time as their members many times were themselves perpetrators during the armed conflict. 337 The Paris Principles, Principles and guidelines on children associated with armed forces or armed groups, February 2007, para. 3.6 338 The Paris Principles, Principles and guidelines on children associated with armed forces or armed groups, February 2007, Article 3.7 footnote 6

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A truth commission is established to find out what happened in a country during a specific period of time, and a truth commission has the potential of introducing the human dimension of violence. The work of the truth commission apart from establishing the facts and the truth of specific events during a specific period of time, with its possible mandate to issue recommendations on how to reform state institutions and legislation, is to make sure that these gross human rights violations are not to happen again. With regards to the continuous sexual violence that is being perpetrated against women and girls in most post-conflict countries, the need for ensuring that these violations do not take place again is very badly needed and fundamentally lacking. A court investigates specific events, looks at evidence and the intent in order to establish individual responsibility regarding crimes that have been committed and if found guilty the court punishes the perpetrator. Another aim of a workable court system is that such a judicial system will work as a deterrent to prevent individuals from committing crimes in the future as they know that they can be made accountable and punished for such crimes. For instance the truth and reconciliation commission for El Salvador that began working in 1992 had a mandate to investigate those serious acts of violence that had occurred in the country since 1980 and whose impact on society urgently demanded that the public should know the truth.339 The commission was to take into account: “(a) The exceptional importance that may be attached to the acts to be investigated, their characteristics and impact and the social unrest to which they gave rise” and furthermore the commission was to take into account “(b) The need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation.”340 A truth commission is to establish the facts about events and to establish the truth of what has taken place. This is also usually in societies where the truth about events such as disappearances, crimes against humanity and human rights violations have been committed in a context of massive denial by the state. Th is is especially true in authoritarian regimes with no press freedom and where individuals are being threatened and/or imprisoned for telling the truth. A truth commission is most often mandated to issue recommendations for reform and change of the existing governmental system including its state institutions. This includes creating new institutions and reform with the aim that the atrocities of 339 Document 67, Letter dated 29 March 1993 from the Secretary-General to the President of the Security Council transmitting the report presented on 15 March 1993 by the Commission on the Truth, From Madness to Hope, the 12-year war in El Salvador, p. 296: The truth commission was established in a set of peace agreements beginning with the Mexico Agreements, 27 April, 1991 340 Document 67, Letter dated 29 March 1993 from the Secretary-General to the President of the Security Council transmitting the report presented on 15 March 1993 by the Commission on the Truth, From Madness to Hope, the 12-year war in El Salvador, p. 296

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the past, the lack of accountability and denial of truth will not be able to happen again in the future. The recommendations may cover reform of the judicial system, the police, the security forces, public administration and the political system. In addition a truth commission can be mandated to establish individual responsibility and accountability for the crimes that took place, and for instance the truth commission for El Salvador named names in its final report of those individuals it found beyond doubt to be responsible for certain crimes.341 However naming names is a very controversial issue as a truth commission is not a court, and there are many considerations to take into account. A truth commission can also be mandated to hand over information about cases to the judiciary of a country for eventual prosecutions. Traditionally there are specifically four aspects that encompass a truth commission as it:342 (1) (2) (3) (4)

Is to establish what took place; Is to try to get to the whole picture of what took place; Is established for a specific period of time and ends its work with a report; If the truth commission has support of the government, then sensitive information might more easily become available as well as access to archives which will be very useful in order to establish the facts of past events.

Furthermore, with a truth commission the victims are humanized, the past cannot be denied, the perpetrators cannot hide behind a shield of anonymity, which is especially important when it has been the government that has been behind and/or supported the perpetrators, and in order to end a conflict-ridden past and move forward to peace a moral rebuilding of the society is needed and a truth commission can contribute to this through officially restoring the dignity of the victims.343 With regards to sexual violence committed in an armed conflict, a truth commission can contribute to the restoration of the dignity of women by providing some form of justice by publishing a public report about the rape and sexual violence that took place, and to establish that these atrocities were indeed 341 See for instance the case of Archbishop Romero, Document 67, Letter dated 29 March 1993 from the Secretary-General to the President of the Security Council transmitting the report presented on 15 March 1993 by the Commission on the Truth, From Madness to Hope, the 12-year war in El Salvador, p. 357 342 Hayner, P., B., Fifteen Truth Commissions-1974 to 1994: A Comparative Study, Human Rights Quarterly, Bind. 16, Nr. 4, 1994, p. 604 343 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A and Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 300

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crimes.344 It is not only the women’s dignity that is being restored, society’s dignity might also be helped to be restored this way. It is important that the victims’ stories result in something that puts an end to the silence that often surrounds rape and sexual violence, and there should be an official proclamation that rape and sexual violence are crimes to be punished by law.345 Furthermore, in the context that rape and sexual violence are so widespread the decisions of national courts, traditional mechanisms such as the Gacaca courts in Rwanda, the different international ad hoc criminal tribunals and the ICC need to result in something more than prison sentences. They need to result in real change of behaviour by both individuals and the governments, and that governments that have done nothing to prevent, stop or punish such crimes no longer condone such behaviour by their inaction and passivity. Governments need to build credibility and confidence in their institutions including courts. This is where a truth commission can play a wider role than a criminal court since a truth commission can be mandated to issue reforms of a country’s national justice system, police force and military forces, which a criminal court cannot do. A truth commission can receive and handle many more witness and/or victims accounts than what is possible for a court. For instance in El Salvador its Commission on the Truth received 2,000 testimonies from primary sources that concerned over 7,000 victims, and secondary sources gave information to the Commission that related to 20,000 victims.346 When the South African Truth Commission concluded its work in 1998, 21,000 people had given their testimony relating to 38,000 gross violations of human rights.347 About 90 per cent of those who gave testimony at the South African Truth Commission were from the black community, of which women were the majority, and most of the deponents gave testimonies regarding men who had died and been their relatives. As an example, the International Criminal Tribunal for Rwanda had after four years only heard 130 witnesses. However, the pace has been much different through the Rwandan 344 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A and Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 301 345 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A and Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 301 346 Letter dated 29 March 1993 from the Secretary-General to the President of the Security Council transmitting the report presented on 15 March 1993 by the Commission on the Truth, S/25500, 1 April 1993, in the United Nations and El Salvador, 1990-1995, The United Nations Blue Books Series, Volume IV, 1995, p. 295 347 Truth and Reconciliation Commission of South Africa Report, Volume One, 29 October, 1998, p. 173

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national justice process where in 1998 about 330 individuals had been convicted while at the time the ICTR had not been able to conclude one case.348 In Rwanda the local Gacaca courts have held hearings every week in about 10,000 local jurisdictions and the number of cases dealt with amounts to several thousands.349 As a minimum 30 per cent of the Gacaca judges need to be women, while traditionally before the genocide no women were allowed to become a Gacaca judge.350 According to the new Gacaca law after the genocide crimes of sexual violence are a Category One crime, and while the Gacaca courts gather the first testimonies and evidence, these cases are then to be referred to the formal justice system for prosecutions.351 Within the formal justice system, acts of sexual violence are also categorized as a Category One crime.352 However it is more difficult for the victims to access the formal justice system because of lack of funding and long transport distances, and in addition these proceedings take longer time to process.353 This needs to be seen in the context that the Gacaca system was traditionally established to handle much lesser serious crimes at the community level like cases concerning property rights. Technically the crime of genocide is very difficult to establish, and that has for instance been a concern with regards to the ability and capacity of the Gacaca trials, including that they do not offer due process guarantees. But some of the cases to be adjudicated before the formal justice system have been able to be identified by the Gacaca courts.354 A truth commission needs to be independent and its members need to be seen as impartial and not representing a particular group or region only, as existing polarization makes it necessary that most groups or regions in a country if possible be represented.355 In South Africa it was democratically elected repre348 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A and Skaar E., Eds., Forsoning eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 296 349 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, 2009, p. 84, Box 5B 350 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, 2009, p. 84, Box 5B 351 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender & Accountability, 2009, p. 84, Box 5B 352 ICTR, Sentence, Prosecutor v. Kambanda, Case No. ICTR-97-23-S, T. Ch. I, 4 September 1998, para. 18 353 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender and Accountability, 2009, p. 84 354 UNIFEM, Progress of the World’s Women 2008/2009, Who Answers to Women? Gender and Accountability, 2009, p. 84 355 Frøyland A., Nilsson A-C, Suhrke A., Rwanda: Verken rettferdighet eller fred (Rwanda: Neither Justice Nor Peace) in Andreassen B-A and Skaar E., Eds., Forson-

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sentatives from the different political parties in the Parliament that established the Truth Commission by the Promotion of National Unity and Reconciliation Act (the Act) in the Parliament in 1995.356 The Commission’s 17 members were appointed by President Mandela who saw it as necessary that all political parties were represented. The South African Truth and Reconciliation Commission was to investigate and document gross human rights violations that had been committed within or outside of South Africa between the period of 1960 to 1994.357 The mandate included gross human rights violations that had been committed outside of the country because in order to protect and keep the Apartheid system, the Apartheid regime not only targeted people when inside of South Africa but also established “a reign of terror and destruction” in the wider region.358 The Commission’s focus was on investigating and establishing the truth about the worst acts of violence that had been committed. To have a political opposition established in a country is an important precondition for a truth commission to properly function, as it is not only the point of view of the existing government that is to be presented, all views need to be able to be presented. From this follows that a free press and freedom of expression as human rights need also to have been established for the real facts and uncomfortable truths to be able to come out and be made public. Criticism of the former and sitting governments needs to be able to be published or accounted for without repercussion from the government of the journalists or witnesses. Another issue is a government’s willingness to cooperate with a truth commission, for comparison with regards to the two ad hoc tribunals’ appeals chambers (for former Yugoslavia and Rwanda), they are authorized to take into account new evidence, which has contributed to fairness in cases where a government has not been willing to make available evidence at first but later has provided useful information.359 The importance of clarifying the goals of the particular transitional justice process a country chooses to implement is reflected in the experiences from the Sierra Leone Truth Commission which had a very broad mandate,

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357 358 359

ing eller rettferdighet? Om beskyttelse av menneskerettighetene gjennom sannhetskommisjoner og rettstribunaler (Reconciliation or peace? About the protection of human rights through truth commissions and criminal tribunals), 1998, p. 303 The Promotion of National Unity and Reconciliation Act No. 34 of 1995, Truth and Reconciliation Commission of South Africa Report, Volume 1, Chapter 2, 29 October, 1998, p. 24 Truth and Reconciliation Commission of South Africa Report, Vol. 1, Chapter 2, 29 October, 1998, para. 2, p. 24 Truth and Reconciliation Commission of South Africa Report, Vol. 1, Chapter 2, 29 October, 1998, para. 21, p. 29 Meron, T., Judge of the International Criminal Tribunal of Former Yugoslavia, Anatomy of an International Criminal Tribunal, the Hudson Lecture, March 31, 2006, the Proceedings of the 100th Annual Meeting, March 29-April 1, 2006, Washington D.C., the American Society of International Law, ASIL

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but where the carrying out of the mandate met several challenges including lack of resources.360 If the Truth Commission would have had a more limited set of goals it might have been much clearer which mechanism, the Truth Commission or the Special Court for Sierra Leone, would have been more fit to deal with certain issues and what could actually have been accomplished in the transitional justice process taking into account the available capacity.361 13.7.1.

The Truth and Reconciliation Commissions for South Africa, Sierra Leone and Liberia

Several truth commissions have been established around the world, but with regards to specifically addressing the situation for women and the gender-based violence that has been committed during a given conflict it was not until the establishment of the South African Truth and Reconciliation Commission (TRC), which after much discussion established specific hearings on women, that these issues became specifically addressed even if in a limited manner. This has been followed by the Truth and Reconciliation Commission for Sierra Leone, but it is the Liberian Truth and Reconciliation Commission that has really addressed the situation for women in a comprehensive manner. The Truth and Reconciliation Commission for South Africa held three special women’s hearings and these were conducted in Cape Town, Durban and Johannesburg with the purpose of having more women participating in the process and for women to reveal their own abuses that they had suffered.362 The Commission used a special form to record statements and by April 1997 this form stated with regards to women:363 IMPORTANT: Some women testify about violations of human rights that happened to family members or friends, but they have also suffered abuses. Don’t forget to tell us what happened to yourself if you were the victim of a gross human rights abuse.

At first the Commission was criticized for being gender-biased, neglecting the needs of the women who had suffered from gross human rights violations themselves and focusing primarily on men. As the general hearings were progressing 360 Smith A., Basic assumptions of transitional justice and children, Chapter 2, p. 47-48, in Parmar, S., Roseman, M., J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, 2010 361 Smith A., Basic assumptions of transitional justice and children, Chapter 2, p. 48-49, in Parmar, S., Roseman, M., J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, 2010 362 The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, p. 283 363 The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, p. 283

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a gender-biased pattern emerged where at the hearings women constituted more than half of those that testified, but where they mainly talked about other persons who were victims of violations of human rights, relatives and dependants, mostly male, and not about their own violations that they had suffered.364 Thus it was acknowledged that there was a need for the Commission to facilitate for women to come forward and speak about the gross human rights violations that they had themselves directly experienced. Reflecting on this issue, Ilse Olckers, women activist lawyer, explained how two commissioners and some women gender experts discussed the issue of the role of women in the Commission hearing: “[I]t was as if they ‘were asking them to convince the other members of the Commission to see the earth as round. We added a third dimension to a task already wearisome. A task which they felt they could hardly cope with in its current two dimensional state.’”365 The Commission states in its report that “[t]he inclusion of a separate chapter on gender will be understood by some readers as sidelining, rather than mainstreaming, the issue. Women will again be seen as having been portrayed as a ‘special interest group’, rather than as ‘normal’ members of society.”366 Women constituted more than half of the Commission’s deponents overall, and statistics showed that especially four categories of gross human rights violations were reported, constituting: attempt to kill, killing, severe ill-treatment and torture.367 The women in Durban experienced the most gross human rights violations themselves according to the number of women who came forward, Cape Town 24.3 per cent (men 75.7 per cent), Durban 59.8 per cent (men 40.2 per cent), East London 23.9 per cent (men 76.2 per cent), Johannesburg 30.7 per cent (men 69.3 per cent).368 A particular issue for the Truth and Reconciliation Commission for South Africa was the silence surrounding rape and sexual abuse. The Commission meant that to appear before the Commission was an opportunity for the women “to relate their own accounts” which would be one way to restore victim’s “human and civil dignity”.369 However, many women saw it instead as a way to lose 364 The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, p. 283 365 The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, para. 15, p. 287 366 The Definition of Gross Human Rights Violations, Paragraph 16, The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, para. 16, p. 287 367 The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, para. 12 and 14, p. 285-286 368 Table 2: Deponents who were themselves victims of gross human rights violations, The Truth and Reconciliation Commission of South Africa Report, Vol. Four, Chapter Ten, 29 October 1998, p. 285 369 Truth and Reconciliation Commission of South Africa Report, Vol. 4, Chapter Ten, 29 October, 1998, para. 44, p. 294

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their dignity, and as Ms. Jessie Duarte meant “the Commission is actually asking people to open the empty cupboard and expose that there are no groceries in the cupboard and then they have to live with that”.370 Duarte explained that the liberation movements during the 1980s were part of the silence, saying that “if women said that they were raped, they were regarded as having sold out to the system in one way or another”.371 She added that some of “the cruellest in enforcing these attitudes” were women themselves.372 People will not necessarily tell the truth about events before a truth commission, just as the case is during trials, however the different setups between a truth commission and a court give the individuals giving testimonies more leeway before a truth commission.373 Before a truth commission, individuals can bring up issues that are not of legal importance and show their feelings, and explain how it felt to be the victim or the family of a victim of gross human rights violations, and these narratives can provide the truth commission with a deeper understanding and a wider account of what took place.374 As Godwin Phelps discusses with regards to the Truth Commission for South Africa: “These settings can reveal the truth about what oppression did to people – not just the recitation of events, but what oppression felt like, how it changed and destroyed lives, even lives not touched by a specific crime. Because so many stories can be told, a larger picture emerges in which individual victims can see their place in a community of survivors.”375 The South African Truth and Reconciliation Commission was able to give amnesty to perpetrators responsible for an act, omission, or offence that was related to a political objective in exchange for them to make “a full disclosure of all the relevant facts” that they had committed during the Apartheid regime and for that purpose an Amnesty Committee was established.376 This was the first ever 370 The Truth and Reconciliation Commission of South Africa Report, Vol. 4, Chapter Ten, 29 October 1998, para. 45, p. 294 371 See Goldblatt B. and Meintjes S., (1997), Dealing with the Aftermath-sexual violence and the Truth and Reconciliation Commission, in Agenda, p. 5 in the Truth and Reconciliation Commission of South Africa Report, Vol. 4, Chapter Ten, 29 October 1998, para. 46, p. 294 372 Truth and Reconciliation Commission of South Africa Report, Vol. 4, Chapter Ten, 29 October, 1998, para 46, p. 294 373 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 65-66 374 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 66 375 Godwin Phelps, T., Shattered Voices, Language, violence and the work of truth commissions, 2006, p. 66 376 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 101

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commission that was authorized “to grant amnesty to individual perpetrators”.377 The Amnesty Committee as an administrative tribunal, Sarkin noted, had “no formal system of precedent applied to its activities”, and as a consequence “the lack of jurisprudence in the decisions themselves” became of concern.378 At issue was that the “cases do not refer to other cases previously decided by an amnesty committee”, which was exacerbated by not having fi xed compositions of the hearing panels which led to that the panels had different compositions of committee members at any given time.379 As a result, of concern was that the hearing panels would not apply the same reasoning to its decisions or deliver uniform decisions. As Sarkin suggests “[a] system of precedent would have ensured a more consistent approach so as to avoid the outcome of the amnesty decision being dependent on the composition of the panel”.380 But the Amnesty Committee saw no problems with not having a formal system of precedent and the Commission report stipulates that “[t]he Committee is ultimately satisfied that the absence of a formal system of precedent did not detract from the quality of decision-making, nor did it result in any patent injustice to any participant in the amnesty process”.381 One contentious criticism of the South African Truth and Reconciliation Commission has been that it was too perpetrator friendly and that it did not give enough attention to the victims.382 As a response the Truth Commission said: The resultant view that the Committee was “perpetrator friendly” was thus to an extent understandable and even unavoidable. Any accusation that the Committee was insensitive towards the victims is, however, totally unfounded. The Committee’s records bear ample testimony to the resources made available to assist victims. Substantial budgetary provision was made for locating victims, arranging for their

377 Truth and Reconciliation Commission of South Africa Report, Volume One, 29 October, 1998, p. 54 378 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 98 379 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 98, Emphasis by Sarkin. 380 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 98 381 In Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 98 382 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 98

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legal representation and providing subsistence, transport and accommodation to enable them to attend and participate fully in amnesty hearings.383

However, Sarkin means that the Committee did not put sufficient effort into tracing victims, and in those cases when they did and victims appeared at the hearings, it was mainly a “minimal” role the victims played there.384 It was usually because of the victims themselves taking initiative that the victims could take on an important role in a case, including having lawyers urging them to testify.385 Furthermore they state that there was “very little acknowledgement or focus on issues” of importance to the victims, and that many times the Committee did not consider the victims’ “needs, concerns, and views” or did not bring them up unless in cases where victims were in favour of that amnesty would be granted.386 Also, at times the TRC failed to let potentially interested victims know when a hearing was to take place, which the Committee has acknowledged: “[I]n some cases, not all victims had been informed of the hearing, and some had not even been traced.”387 Further, another concern was that the people who came to testify were not receiving counselling to process thoughts and emotions that the hearings might have brought up.388 How commission members choose to conduct the different hearings is of crucial concern. Again with regards to the South African Truth and Reconciliation Commission some have felt that some of the commission members put some form of pressure on the people who came forward to witness to forgive their perpetra-

383 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 99, Truth and Reconciliation Commission of South Africa Report, Volume 6, 29 October, 1998, p. 84 384 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 99 385 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 99 386 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 99 387 Sarkin, J., An Evaluation of the South African Amnesty Process, Chapter 4, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 99 and Truth and Reconciliation Commission of South Africa Report, Volume 4, 29 October, 1998, Volume 6, p. 87 388 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 81-82

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tors.389 For instance in one survey conducted in the Johannesburg area, about 60 per cent of the former victims of political violence said that their church, political leaders or the TRC had put some form of social pressure on them to offer forgiveness, and as many as 30 per cent said that pressure had come from the TRC.390 However, as Chapman noted after having gone through hearing transcripts, it was most probable that the church that put pressure on these individuals and not the TRC. Issues regarding the difficulties involved with determining what constitutes direct and indirect pressure was also noted. In addition, one survey from another part of the country showed that the majority had not felt pressured to forgive their perpetrators.391 Other individuals participating in a CSVR (Centre for the Study of Violence and Reconciliation) workshop in 2001 felt “that those who benefited from and perpetrated apartheid dictated the terms of reconciliation as forgiveness”.392 They meant that the process of the TRC “had imposed a false homogeneity around the agendas of survivors” of the political violence, and explained that they did not find the hearings empowering, and the way the hearings were conducted had made it harder to actually meet their perpetrators, and as one person explained:393 Even if I were to decide on reconciliation, it would have to be on my terms. How I relate to him was shaped differently (at the TRC). It was like-because we are in a process of reconciliation and healing it means you are buddies or friends and we want you together. I felt powerless. I wasn’t in control of this process, somebody else was. It was really disempowering. It was not on my terms. It was like-reconcile? Oh, we are buddies now. But to actually reconcile, on my terms, on my terms would have been different. If I do not want to speak to you, accept that. I need to draw some lines, boundaries that you cannot cross. But in this process there were no boundaries, it was like-not my process.

389 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 79-80 390 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 80 391 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 80 392 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 82 393 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A., R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 82

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Chapman noted how some individuals participating in the CSVR workshop had said:394 how much more difficult it was now to encounter their torturers on the streets because they greet them as if the TRC process had brought fi nality, but instead they had a sense of ongoing violation, of not being protected, because the interactions were on the perpetrators’ terms, rather than their own.

The process of reconciliation is a complicated process because inevitably very deep-seated thoughts and emotions will come up and/or be triggered by testifying and/or encountering perpetrators, which is increasingly being recognized, and which needs to be addressed in the planning of and when conducting a truth commission. Support needs to be sustained for individuals as after having testified and/or met with a perpetrator(s) this might trigger emotions and thoughts that they might not have been aware that they had before. To present facts is in a sense an intellectual process, where in the context of deep oppression and grave human rights violations that have continued for maybe decades, these are not only facts for people but real experiences that individuals and families have endured, and therefore help to deal with the emotional responses to the presentation of these facts also needs to be factored in with regards to the process of reconciliation. Also in the setting up of future truth and reconciliation commissions discussions on how the concept of reconciliation should be defined needs to be part of the process as reconciliation might mean different things to different people, and in the context of societal reconciliation the goal of reconciliation needs to be well elaborated. Forgiveness carries a very strong emotional connotation with equally different meanings to people, and sometimes the concept of forgiveness is brought in too early in the process because to deal with the often very difficult deep-seated emotions makes many people want to skip over this hard part, and instead wanting others to “generously” forgive which in some instances could be interpreted as being doubly violated. 13.7.2.

The Truth and Reconciliation Commission for Sierra Leone and the Special Court for Sierra Leone

The Truth and Reconciliation Commission for Sierra Leone was established by an act in the Sierra Leone Parliament in February 2000, but the parties had agreed upon its establishment in the Lomé Peace Agreement of 7 July 1999.395 It was stipulated in the Peace Agreement that a truth commission would be established 394 Chapman, A., R., Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings, Chapter 3, in Chapman, A. R., and van der Merwe, H., Eds., Truth and Reconciliation in South Africa, Did the TRC Deliver?, 2008, p. 82 395 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 613

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within 90 days. The Truth and Reconciliation Commission Act 2000 stipulated in section 6(1) that its purpose was “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered”.396 The Truth Commission worked in two phases and the first phase took place between December 2002 and March 2003 which was the statement-taking phase, and then the second phase between April 2003 and August 2003, the hearings phase, and first in September 2004 did the Commission publish its report which consisted of several volumes.397 The Special Court for Sierra Leone was established by a Security Council resolution, resolution 1315 of 14 August 2000, and it was established in order “to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone”.398 The Truth Commission had completed most of its public work by 2003, and that was the period when the Special Court was having its investigations, issuing its indictments and arrests and conducting its initial proceedings, but it did not begin having trials until June 2004.399 The Truth Commission’s and the Special Court’s jurisdictions did overlap to a certain extent, however it was possible for the Truth Commission to investigate several areas that were not within the Special Court’s jurisdiction.400 These areas comprised of situations that had taken place before the armed conflict, as well as the role that many other actors that were not part of the jurisdiction of the Court had played, and this included international peacekeepers.401 The Special Court had a limited subject matter jurisdiction to only be able to investigate “serious violations of international humanitarian law”, which did not apply to the Commission, which was to investigate the more wide-ranging “violations 396 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 613 397 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 615 398 Statute of the Special Court for Sierra Leone, Article 1, in Hilwig, E., Van Laar, R., Van der Wolf, W-J, Eds., International Courts and Tribunals, Selected documents and materials, 2004, p. 75 399 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 615-616 400 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 623 401 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 623

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and abuses of international humanitarian law”.402 Mercenaries were very active in the Sierra Leone conflict, but the use of mercenaries was not included in the Special Court’s jurisdiction of “serious violations of international humanitarian law”, however mercenaries were included within the jurisdiction of the Truth Commission as defined by “violations and abuses of international humanitarian law”.403 With regards to particular crimes committed against children, the acts of conscripting and enlisting children has been criminalized in the Statute of the Special Court for Sierra Leone as “[o]ther serious violations of international humanitarian law” and the Statute in its Article 4 stipulates that: The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: (a) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (b) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (c) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

The Statute for the Special Court for Sierra Leone explicitly spells out in Article 5 “Crimes under Sierra Leonean Law” that the Special Court has the power to prosecute those individuals who have committed offences against girls which are prohibited under Sierra Leonean law:404 (d)

Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): (i) Abusing a girl under 13 years of age, contrary to section 6; (ii) Abusing a girl between 13 and 14 years of age, contrary to section 7; (iii) Abduction of a girl for immoral purposes, contrary to section 12.

402 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 623 403 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 623 404 Article 5, Crimes under Sierra Leonean law, Statute of the Special Court for Sierra Leone, in Hilwig, E., Van Laar, R., Van der Wolf, W-J, Eds., International Courts and Tribunals, Selected documents and materials, p. 76

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The Statute of the Special Court also provides for the possibility for the Court to prosecute children between 15–18 years of age, as stipulated in Article 7 of the Statute: Jurisdiction over persons of 15 years of age 1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child. 2. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counseling, foster care, correctional educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration programmes of child protection agencies.

However, while the Statute gives the prosecutor the possibility to bring to trial former child soldiers who were children between 15 and 18 years of age, the UN Security Council preferred child soldiers to be brought before the Truth Commission as it said in a letter to the UN Secretary-General that the Court should refrain from prosecuting former child soldiers under the age of 18 years.405 The President of the Security Council in a letter dated 31 January 2001 to the UN Secretary-General stated that “[t]he members of the Council continue to believe it is extremely unlikely that juvenile offenders will in fact come before the Special Court and that other institutions, such as the Truth and Reconciliation Commission, are better suited to address cases involving juveniles.”406 In June 2001 at a technical meeting preparing for the Truth Commission in Sierra Leone, it was decided that since “children are among the primary victims of the civil war in Sierra Leone, their involvement in the TRC is essential”, and that their participation would be largely limited to confidential statement-taking because it was considered to be in the best interests of the child.407 The guid405 Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 622 406 United Nations Security Council, Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General, 31 January 2001, S/2001/95, in Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, footnote 24, p. 619 407 Siegrist, S., Child rights and transitional justice, Chapter 1, p. 18, in Parmar, S., Roseman, M., J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-

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ing principle of the best interests of the child was furthermore referred to in the technical report “Children’s Views on the TRC and Children –Report from the Children’s Working Group”, which stated that “[t]he fundamental objectives of the work of the TRC concerning child participation should be the promotion of the ‘best interests of the child’, with priority treatment to be provided to children’s issues and measures to be taken for their protection”.408 Later when developing Liberia’s TRC policy in 2006 the decision by Sierra Leone’s TRC to allow for children’s statements, testimonies and participation in regional hearings was followed.409 13.7.2.1.

The Truth and Reconciliation Commission for Sierra Leone and Children and Youth The eleven-year conflict in Sierra Leone involved the systematic violation of the rights of children in Sierra Leone. The violations that children suffered included abductions, forced conscription, rape, sexual violence and abuse, forced slavery, torture, slave labour, amputations, mutilations, killings, forced displacement and cruel and inhuman treatment. Having examined the violations committed against children, it is clear to the Commission that most of the armed factions pursued a deliberate policy to target children and violate them.410 With respect to children, the Commission recalls the particular suffering they endured during the war, calling for the prohibition of all forms of corporal punishment of children, both in schools and in the home. Implicitly, at any rate, the Report seems to draw a link between brutal children and children who have been brutalised. Children were the backbone of the combatant forces. Their immaturity made them particularly vulnerable to manipulation by the adult leaders of different groups. The use of narcotic drugs may have contributed to the process, although their role in the conflict was probably exaggerated. Evidence before the Commission indicated that the older military leaders of both the Revolutionary United Front and the pro-government militias had begun their careers as child soldiers themselves. They had been recruited to British colonial forces in the 1950s, when they were in their early teens. Apparently it was the British who

Telling, Accountability and Reconciliation, 2010; See previous discussion by Crane, the former Chief Prosecutor for the Sierra Leone Court. 408 Reference to report in Siegrist, S., Child rights and transitional justice, Chapter 1, p. 18-19, in Parmar, S., Roseman, M., J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, Truth-Telling, Accountability and Reconciliation, 2010 409 Siegrist, S., Child rights and transitional justice, Chapter 1, p. 19, in Parmar, S., Roseman, M., J., Siegrist, S., and Sowa, T., Eds., Children and Transitional Justice, TruthTelling, Accountability and Reconciliation, 2010 410 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 45, p. 242

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coined the term ‘Small Boys Units’, which was used in Sierra Leone in the 1990s as a label for combat units of children as young as ten. This is not to excuse the conduct in Sierra Leone – recruitment of child soldiers is now recognised as a war crime – but it certainly helps account for the origins of the practice.411

The Sierra Leone TRC was the first truth commission to “be required to give special attention to the experiences of children”.412 This needs to be seen in the context that children under the age of 19 years were when the war began in the majority of the 4.5 million population, making up more than 50 per cent, and the adults were in the minority.413 Furthermore, children were especially targeted during the war by all armed factions, something that also children were fully aware of which this statement by children given to the TRC shows: “Concerns amongst us children in Sierra Leone are that the war was targeted at us. A brutal conflict which we did nothing to bring about but suffered and lost everything in it.”414 As a consequence the Sierra Leone TRC produced a child-friendly version of its report, which was the first time a truth commission had done this.415 It was done with the cooperation of the UNICEF, UNAMSIL and different child protection agencies, with the main aim being for the report to be made easily available to all children and that they would not be traumatized by it. When the TRC held its public hearings on women and children in Freetown, attendance was full, in contrast to when the TRC held public hearings on other issues and not very many people showed up.416 In the provinces many more people came to the public hearings than in Freetown, with about 100 people attending every day. The human rights of the children in Sierra Leone were not either implemented or in any way respected by the different governments before the war, and the laws that concern children have been out of date, archaic, inconsistent,

411

412

413 414 415 416

Schabas, W. A., War Crimes and Human Rights, Essays on the death penalty, justice and accountability, 2008, p. 619, footnotes omitted: Schabas William, the Director of the Irish Centre for human rights, National University of Ireland, Galway, he was an international member of the Sierra Leone Truth and Reconciliation Commission, between 2002-2004. The TRC Act 2000 in Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3 (B), Chapter 4, Children and the Armed Confl ict in Sierra Leone, 2004, para. 12, p. 235 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3 (B), Chapter 4, Children and the Armed Confl ict in Sierra Leone, 2004, para. 6, p. 234 Sierra Leone Truth and Reconciliation Commission, Final Report Vol. 3 (B), Chapter 4, Children and the Armed Confl ict in Sierra Leone, para. 8, p. 235 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 1, Chapter 5, Methodology and Processes, 2004, para. 71-73, p. 156 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 1, Chapter 4, Management and Operational Report, 2004, para. 49, p. 99

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uninformed and insufficient.417 There was a culture of silence and impunity and crimes committed against children such as rape and sexual violence were usually not punished. As the TRC concluded, “[t]here is a great need to ensure the effective implementation of appropriate laws and customs, procedures and policies in respect of children, which are necessary for the restoration of the dignity of children in post-war Sierra Leone”.418 In Sierra Leone the applicable laws for children encompass the Constitution of 1991, the English common law and customary law systems, and within this context there is no consistent age limit for who constitutes a child as under the English common law 21 years is the age of majority, under the 1991 Constitution 18 years gives the right to vote, but under the customary law there is no fi xed age of majority.419 Under customary law it is the purpose of an issue as related to age and the view of different ethnic groups that determine the age of majority. This has led to a lack of clarity as to whether a certain law could be applied to a case of children, which in turn has negatively impacted children’s legal capacity in civil and criminal cases alike because of uncertainty as to whether they are to be considered children requiring protection or adults.420 As an example of the inconsistency is that to abuse a girl who has not reached the age of 13 years “with or without her consent” is a criminal offence that has a punishment of imprisonment with up to 15 years, while if the girl is 13 years but younger than 14 years, the punishment is only two years maximum.421 In the view of the TRC this difference in age “has contributed to the trivialisation of sexual crimes committed against girls and is an example of the Government’s breach of its obligation to prevent the sexual abuse of children”, meaning that the two years imprisonment rule in the second case is neither appropriate nor enough to act as a deterrent.422 Another case is that to forcibly and intentionally remove “an unmarried girl under 16 years from the possession and against the will of the father or mother or any other person having the lawful care or charge of such a girl for immoral or 417 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 46, p. 243, para. 64, p. 247 418 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 47, p. 243 419 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 65-66, p. 247-248 420 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 67, p. 248 421 Unlawful carnal knowledge and abuse of girls, the Prevention of Cruelty to Children Act 1960, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 74, p. 249 422 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 75, p. 249

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carnal purposes” is a criminal offense with a punishment of imprisonment for up to two years.423 Abduction of girls was under-reported prior to the war. It is important to keep in mind that it is a crime under the Sierra Leone Prevention of Cruelty to Children Act of 1960 to have forcibly abducted the many girls and women who still remain with those who abducted them.424 The juvenile justice system has been outdated and is another area that has needed reform, as has the rehabilitation of juvenile offenders where in the whole Sierra Leone there has only been one school and remand home available to rehabilitate the juveniles.425 The war resulted in many children becoming orphans, and many new orphanages and foster homes were set up, but no law regulates the majority of them as they are private entities.426 The Sierra Leone TRC addressed the situation and status of children in the country before the war and examined the sectors of education and health, and the socio-cultural and economic status of the children. In this respect it is important to take into consideration that the Lomé Peace Agreement made specific reference to children and that the mandates for the TRC and the Special Court for Sierra Leone also did this. In Sierra Leone customary law systems have permitted early marriages of girls under 18 years, and four kinds of marriages exist in the country: Christian marriage, civil marriage, Mohammedan marriage and customary law marriage.427 No minimum age of marriage exists and both Muhammedan and customary law allow for also girls under ten years of age to get married (the girls are often pressured into agreeing to marry). In this context one of the findings of the TRC was that “the practice of early marriage has contributed to the high levels of sexual abuse of girls and has led to society’s condoning of a practice that is detrimental to the development of young girls. It is also in clear contravention of international law to which the government of Sierra Leone is signatory to. The Commission finds that the different legal systems need to be harmonised and brought into line with international law.”428 The TRC importantly examined the status of the children before the conflict and linked this to their situation in the conflict, describing that from the 1970s up 423 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 79, p. 250 424 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 81, p. 250 425 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 94, p. 253 426 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 97, p. 253 427 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 98, p. 254 428 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 101, p. 254

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until the war began in 1991 that for instance the economy had sharply declined, and that because of poor governance at national and local levels, corruption, and Bretton Woods structural adjustment policies these had all had a devastating impact on the situation for the children.429 All areas concerning education, health care and the socio-cultural situation for children were severely negatively impacted as a result. For instance, concerning education from 1970 to 1985 there had been an average yearly increase of 6 per cent of the children enrolling in primary school, but from 1985 to 1990 the average rate was just 2 per cent.430 At the same time, the educational budget had decreased from 21 per cent in the 1960s to 8 per cent in the 1980s.431 The teaching profession struggled with many problems and the quality of education differed much between the urban capital area and the rural areas, with the rural areas receiving very few teachers and poor quality of education. To educate girls has been a challenge for a long time in Sierra Leone, where families made the education of boys a priority because of either/or a combination of economic and cultural factors, thinking that to educate girls was a waste of money since they were going to get married and live with a different family anyway.432 It was especially in Sierra Leone’s northern and eastern areas that this attitude was very common, which still continues. As a result, in 1990 when the war began, the illiteracy rate for girls was 88.75 per cent and for boys 69.3 per cent, and of all children fewer than 45 per cent enrolled in primary school, 9 per cent enrolled in secondary school and only 1 per cent enrolled at the tertiary level.433 (The government does not have its own statistics.) As the TRC makes reference to, the RUF gave as one of its reasons to go to war the failure of the then government to make all children able to go to school, and while the RUF did nothing to provide children with an education but instead went ahead and deliberately destroyed many schools, nevertheless at the outset of the conflict this reason had an appeal for many people in Sierra Leone and was a reason why the RUF had some sort of support in a few communities in the beginning.434 With regards to crimes of rape and sexual violence, “[t]he national 429 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 26-27, 33, p. 238 430 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 26, p. 238 431 The Ministry of Education, Science and Technology, submission to the TRC, September 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 33, p. 240 432 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 31, p. 239 433 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 32, p. 240 434 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 34, p. 240

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legal system shifts the evidentiary burden to the complaintant”, that is the victim, which makes it highly unlikely that a perpetrator is to be convicted of such a crime, together with the fact that the threshold for evidence is high.435 As the TRC remarked: Under national law, the crimes of rape, unlawful carnal knowledge, indecent assault, abduction for immoral purposes, and procurement for prostitution are inherently crimes against the honour, dignity and chastity of the victim, her family or the community. They do not adequately present the violence involved in these crimes, particularly when committed during a confl ict situation. They rather focus on the moral aspect, which could lead to a further stigmatisation of the victim. It is highly unlikely that prosecutions would take place given that the national legal system did not manage to prosecute these crimes even during peacetime.436

The Commission found in its conclusion regarding the legal status of the children before and during the war that: The dual legal system existing in Sierra Leone since before the conflict has impacted negatively on the rights of children. In many instances, both law and custom are in clear contravention of international law, particularly the Convention on the Rights of the Child. Traditional customs and practices have also exacerbated the position of children, particularly girl children. The conflict and the cleavages in the society led to the complete debasement of children, the effects of which are being felt in Sierra Leone today.437

Socio-culturally African children have traditionally not been able to take part in decisions concerning them, having to defer to the hierarchy and authority of the adults and their communities, many times in a context of patriarchy and authoritarianism.438 Importantly what the TRC found was that since “[i]n Sierra Leone the children are not allowed to speak for themselves before the elders and chiefs”, youths who still spoke their minds were severely sanctioned as a punishment for not deferring to “this rule”.439 As the TRC states:

435 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 113, p. 256 436 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 113, p. 256 437 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 118, p. 257 438 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 35-36, p. 240 439 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 38, p. 241

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The offenders were not allowed to speak in their own defence and became embittered at the exceedingly onerous punishments often imposed on them by the Chiefs and elders for defying this custom. Punishment often included the levying of exorbitant fines and resulted in many offenders working as slave labour in order to defray the costs. Many discontented youth fled their villages in order to avoid such punishments and when the confl ict broke out became easy converts to the cause of the RUF. Their embitterment also manifested itself in acts of revenge against elders and Chiefs during the confl ict.440

With regards to health care, Sierra Leone was long, between 1983 and 2004, considered to be the least developed country according to the UN Development Index, and the public health sector was in disarray years before the beginning of the conflict.441 The economic decline and the ensuing poverty led to widespread child labour before the conflict began, as children were forced to work in order to contribute to the family household, which meant that they did not go to school.442 In this context the TRC found: The position of children in Sierra Leone at all levels – education, health and sociocultural – was already in decline before the outbreak of the conflict. This backward trend gave rise to huge dissatisfaction amongst the youth, many of whom became disenchanted with successive governments and their poor delivery. Sierra Leone had become a place where many had lost hope long before the outbreak of a conflict, marginalisation and exclusion from society led many youth to take up arms. In many TRC hearings, youth who took up arms testified to the Commission that their dissatisfaction with their social and economic conditions led them to join the RUF.443

The perpetrators had complete control over the child soldiers as these children committed some of the worst violations of human rights in the context that “[t] he conflict was responsible for producing child perpetrators”.444 Many times it was the parents and families and friends of the children who became the victims of the child soldiers who were forced to commit some of the worst violations 440 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 38, p. 241 441 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 39, p. 241 442 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 43, p. 242 443 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 44, p. 242 444 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 121, p. 258

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against them including having to kill them.445 Every armed group or forces were responsible for carrying out grave violations of human rights against children, and as UNICEF stated to the TRC, “[t]he RUF and the AFRC were responsible for the bulk of violations committed against children. Nonetheless, systematic and horrific abuses were committed by the pro-government CDF and their powerful Kamajors, as well as by ECOMOG forces”.446 The TRC concluded that all children had been deliberately targeted by all armed groups and forces.447 Some of the specific violations children were exposed were included abductions and forced recruitment, rape and sexual slavery, and in these categories of crimes the children “suffered disproportionately high levels of violations”, the TRC concluded.448 13.7.2.1.1. The Education System Before, During and After the Armed Conflict Before the war the education system had many problems, however what unfolded during the war was an almost total destruction of the education system as the different armed groups targeted and attacked schools and colleges, and as a result many were destroyed.449 For a whole academic year, starting in 1997, the whole school system stopped to function and no children could go to school at all because of the war. As a consequence of the lack of schooling during the war, many children had not gone to school for two to three years, and other children were no longer of school age. In 1996 the Sierra Leone Ministry of Education, Science and Technology reported, after having conducted an assessment of the schools across the country, that the schools had extensive physical damage, many had been burnt down or their material looted, and furniture, windows, doors and sheet roofing were gone.450 The assessment showed that the few schools that still remained were in very poor condition because they had been abandoned and not looked after. In 2001 a different survey of the schools in the country was conducted which located 3,152 schools and 4,854 school buildings, and it was found that of all classrooms 35 per cent had to be totally reconstructed and that 52 per cent were in need of repair or some reconstruction, and that merely about 13 per

445 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 121, p. 258 446 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 123, p. 259 447 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 125, p. 259 448 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 125, p. 259 449 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 382-383, p. 321 450 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 383, p. 321

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cent of the schools were considered to be acceptable for usage.451 This situation led to that many children in the rural areas could not attend school as schools needed to be moved to Freetown from the provinces, and it was not until at the end of 2002 that schools could return to the provinces, with the additional problem of how to accommodate all the children. The accommodations of the teachers had also sustained much damage and especially in the eastern district of the country, and many teachers either were forced to leave the country or move to other parts of the county, about 6 per cent became displaced, which led to the situation that there were more teachers in some areas at the end of the conflict than in others and a shortfall of skills and experience since many had to leave the country as a result of the conflict.452 Another consequence of the war was that due to poverty many parents did not have enough money to send their children to school, and instead many children had to work to support their families. As the Commission stated, “[i]t is impossible to measure the real impact of the conflict on children. In reality the consequences of the war are unimaginably diverse and widespread: they affect every facet of children’s lives.”453 13.7.2.1.2. Abductions, Forcible Recruitment and Child Soldiers While all armed groups abducted and forcibly used child soldiers, the first armed group to abduct and forcibly recruit child soldiers was the RUF, which set up separate units for children, the Small Boys Unit (SBUs) and the Small Girl’s Unit (SGUs).454 This practice was then taken up by the government, at the time of Captain Valentine Strasser leading the NPRC regime between 1992–1996, in an effort to expand the number of recruits. In the end the armed groups the RUF, the Armed Forces Revolutionary Council (AFRC), the Sierra Leone Army (SLA) and the Civil Defence Forces (CDF) became some of the main perpetrators of these crimes.455 As the TRC clarified, the abductions resulted in forced recruitment or “another form of adoption” into an armed group. A boy who had been ten years old at the time of his abduction gave a statement to the TRC in 2003 saying that:

451

452 453 454 455

The National School Survey Report or NSSR of 2001, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 384, p. 321 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 386-387, p. 322 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 389, p. 322 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 127, p. 260 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 126, p. 260

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During the NPRC period, one early morning, my mother and I were on the farm. Six armed men entered the farm and hid themselves in the hut. We entered … and saw them dressed in SLA uniforms. We were captured and detained with their guns against our heads … The commander of the group was Colonel Mohammed Sesay … [H]e said to me that I should join them or they will kill my mother and myself. I choose to join them since I had no option … I joined them unwillingly at an early age of 10 years. On our way to Kailahun I was given a weapon called AK-47 and taught how to shoot on sight. We attacked so many villages I could not remember their names, until we reached Kailahun, which was the headquarter town of the RUF.456

The children who were abducted and forcibly recruited experienced many other violations as well, and in statements given to the TRC in 2002 two child witnesses gave the following accounts: In 1993, I was abducted by rebels and taken to the bush … My sister and I were taken away from my grandmother … I cannot tell for now whether my grandmother and sister are alive … [that was 11 years after the abduction] I went to stay with the rebels in a village … I used to carry loads on my head, such as looted properties, for long distances. I was taken with others to be trained in another rebel base, for about two months … [W]e were then sent to different areas. They used to kill us SBUs, or small soldiers … [W]e used to go out on food-fi nding trips to villages. When we brought the food, it was only for the commanders and we were given just cassava to eat. I and other abductees were not getting enough food to eat … [T]hey told us that if we attempt to escape they will kill us … [T]hey used to beat me and others if we failed to carry out their orders … I was with them till 1999…

The other child witness stated: … I was attending the St. Francis Primary School Makeni, I was in class three … During the 1998 intervention period, RUF Colonel Kole Boot came with five armed men to my house, they started beating all of us and raping my mother, sisters and aunts in front of me. When they finished, the Colonel turned to me and said I should choose between death and following them. I followed them to Kamakwe; there he injected me, cut my face with a blade and plastered the drug into the wound. I became unconscious and fell on the ground. When I regained my consciousness, he showed me how to fire, dismantle and couple up a gun … [H]e took me to Colonel Alabama for training. I trained for two months and passed out … I later joined SLA Major Palmer, who led me in several battles.457 456 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 129, p. 262 457 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 130, p. 262

Armed Conflict, Transitional Justice and Children and Youth

A girl who had been abducted stated to the TRC in 2003 that: …We were taken to another house where we were raped … [T]hey gave us their luggage to carry to Fadugu. On the way they flogged us. Upon our arrival we were distributed to different rebels to be married to. When we refused, they flogged us. We were raped by two or three men daily…we eventually got married to them. They gave us drugs like marijuana to smoke … [T]hey looted properties whilst we carried their ammunitions …458

The children were used as labourers for many tasks, and as children said in statements given to the TRC in 2003 explaining their ordeals: Every morning there will be a roll call to share duties between different groups: one group to find food for them; another group to carry out fishing; others to cook; others were sex workers. Little children were responsible to carry loads, whether heavy or not. After all the day’s work, we don’t eat their food; we only live on cassava.459

Another said about his promotion: When I was sent on missions, I used to capture young boys and girls and train them as child soldiers … After all my successes; I was called Merciful Killer and later transferred to join the RUF high commander Colonel Issa Sesay.460

In order to show loyalty to their captors and their cause, the children were forced to commit atrocities such as killings, amputations, rape of loved ones, community members, relatives and friends.461 The violations that the children committed against their family and community members ensured that they would not be able to go back home, instead because of the crimes they committed it would be very difficult to do so. Everything was done to prevent a child from escaping, including killing the child or putting the child in chains at night.462 Another feature in Sierra Leone was the checkpoints established all over the country by RUF and CDF with children operating these checkpoints with adults, 458 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 130, p. 262 459 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 133, p. 263 460 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 133, p. 263 461 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 135, p. 263 462 Child statement to TRC in 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 135, p. 263

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and the TRC found that many people gave testimony to it saying how fearful they had been of these checkpoints.463 After the DDR process in 1998, several children were re-recruited into the same armed groups, and those children who were particularly vulnerable to being re-recruited did not have a home or a safe place to return to (which was the case also prior to the outbreak of the war) after having spent time in the interim care centres (ICCs), which was a failure of the planners of the DDR process as a whole who had not thought about the consequences of this situation.464 It is important to keep in mind that many families had several children who were abducted and used as child soldiers, and when in the same armed group the siblings or relatives learned not to reveal their relationship as this could be used against them as they risked having to take responsibility for each other’s actions. For instance if one child escaped it was the family members or relatives who were punished, as one child witness said in a testimony to the TRC in 2003: The rebels attacked Serabu and we fled into the bush … I ran away with my brother and sister. Unfortunately for us, we were captured and taken to the town … [T]he following morning, one of the rebels came into search for us but he did not see my brother and sister. They threatened to kill me because they thought I had incited them to escape. I understood later that my brother had escaped … I was singled out and asked to lie down under the sun …Whilst standing outside, I was shot on my left foot …465

As the TRC stated, it is difficult to get hold of statistics in Sierra Leone, and there are no clear figures of exactly how many children were abducted and forcibly recruited and for how long. The figures in the database of the TRC revealed that “28.3% of the victims who suffered forced recruitment were 12 years or younger at the time of the abduction; 52.5% were 15 years or younger; and 63.1% were 18 years or younger”.466 As a consequence of the abductions and forced recruitment many children not only became separated from their families, but were never able to re-unite with their families again. As UNICEF has stated in one of its reports and referred to by the TRC:

463 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 136, p. 264 464 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 137, p. 264 465 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 138, p. 264 466 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 139, p. 264

Armed Conflict, Transitional Justice and Children and Youth

Particularly despondent were the children who had been recruited as young as seven and demobilised as teenagers. These children often were confused, disoriented, conveyed facts and information wrongly, and were frequently unable to tell the difference between fantasy and reality … [O]ne 10-year-old boy claimed he himself was twenty years old. Others gave conflicting and confused information about their places of origin or the last known location of their relatives.467

13.7.2.1.3. Becoming a Refugee or Internally Displaced About 1.8 million people became displaced in Sierra Leone during the war and had to flee to refugee and IDP camps, however this figure does not include the 2.4 million other people who also became displaced but who were hiding “in the bush” unaccounted for.468 These figures of course include children, and many children either became separated from their parents and families due to the upheaval of the war, and/or became forcibly separated from their parents. As was told in a statement by a child to the TRC in 2003: Rebels attacked us in this town, Kunnandu, and I ran for my life with my mother and sister. On our way going to Guinea … we met another rebel group RUF at Kulumbaya town, which is located along the border of Sierra Leone and Guinea … After capturing us, they instructed my mother and sister to go and leave me because the C.O. was not going to release me. He attempted to kill my mother when she refused to go … [T]he man then took me to Koidu and my mother was headed for Guinea …469

According to the Ministry of Social Welfare, Gender and Children Affairs (MSWGCA) about 15,000 children became separated “from their families and communities”, which led to the situation that many children became refugees on their own in different West African countries including Liberia, Gambia, Ivory Coast, and Nigeria.470 In a statement to the Sierra Leone TRC in 2003 by a child describing the senselessness the family had to endure while fleeing their home community:

467 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 317, p. 307 468 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 144, p. 266 469 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 139, p. 266 470 The figure is an estimate by the Sierra Leone Ministry of Social Welfare, Gender and Children Affairs (MSWGCA), Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 143, p. 266

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I was staying with my parents when the RUF attacked us here in Koidu Town. My father took us to Njagbema Fiama bush … [W]e were again attacked in the bush by RUF rebels and captured … All of us were given loads to carry, including my dad. On our going my other sister was given a load not equivalent to her strength … [T] he sooner she announced it to them that she cannot continue, her hand was amputated … [B]ecause of the nature of her profuse bleeding, we were given passage to cross to Guinea.471

It is important to keep in mind that many children were totally alone during their time in refugee camps or IDP camps, making them very vulnerable to abuse, and as the TRC explains they had “very harrowing” experiences: “The lack of a normal family structure amidst the difficult new environment was a bewildering experience for children. Sadly many suffered even further violations in these camps perpetrated by those meant to protect them. Many children did not survive these experiences.472 Again these children were many times alone and their parents and families did not know about their passing. The TRC refers to a report by the UNHCR and Save the Children UK from February 2002 about how children in the refugee camps were sexually exploited, and continues that the children “also suffered other violations such as economic exploitation and slave labour. Children were forced into adulthood before their time”.473 The UNICEF stated to the TRC that many Sierra Leone refugees, also children who sought protection in the refugee camps and in other places in Guinea, were attacked by Guinean authorities and civilians as a result of Guinean President Lansana Conté publically claiming in 2000 that every refugee in the country were either rebels or protected rebels.474 As a result UNICEF stated that several of the children who were refugees had been raped, or while held in detention were killed or died, and because of these attacks several refugees returned to Sierra Leone, but there they were subjected to abductions and/or sexual slavery among other crimes by the different armed groups.475 The UNICEF further stated in its submission to the TRC that in Guinea in the refugee camps women and 471 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 143, p. 266 472 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 145, p. 266, author’s emphasis 473 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 145, p. 266; the report by Save the Children UK and UNHCR is called “Sexual Violence and Exploitation: The Experience of Refugee Children in Liberia, Guinea and Sierra Leone”, April 2002 474 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 319, p. 307 475 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 319, p. 307

Armed Conflict, Transitional Justice and Children and Youth

girls were exposed to sexual violence which was of great concern, and that “[t] hroughout their time in these camps, refugee girls as young as five became victims of rape and other forms of sexual violence at an astonishing rate considering the ostensible civilian nature of the camp”.476 13.7.2.1.4. Sexual Violations Against Children The TRC found that all the armed groups in Sierra Leone without exception committed widespread rape, sexual slavery and sexual violence, “breaking of all taboos”, and that they did not take into account age, as for instance the youngest rape victim in the TRC database was four years old.477 The TRC recorded in its database that of the rape victims 25 per cent had been between 0–13 years, that 25 per cent of the girls having been used as sexual slaves and for whom age had been established had been between 0–12 years, furthermore that 50 per cent of all the victims of sexual slavery, when they had been abducted, had been 15 years or younger, and that the girls and young women from 10–25 years were “the most targeted” group for sexual slavery.478 In Sierra Leone there has traditionally been a great silence and secrecy surrounding rape and sexual violence, which the TRC stated still persisted in the post-conflict period.479 The TRC underlined that its data was “only a small representation of the problem and does not do justice to the total number of women who have suffered sexual violence”.480 Several girls gave confidential statements to the TRC talking about their ordeals. As one girl stated to the TRC in 2002 regarding her experience of having been raped: When the RUF rebels captured us, they took us to Kailahun … They beat us and sent us to fetch firewood and food … [W]hen we went to fetch fi re wood, the rebels that went with us raped me … After the signing of the peace, the rebel Colonel Akim told his men to take all the children they have captured back to their people … [O]n our way the man that captured me raped me again.481 476 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 320, p. 308 477 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 152, p. 268, para. 166 and 169, p. 271 478 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 153, p. 268 479 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 154, p. 268 480 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 155, p. 269 481 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 156, p. 269

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Another girl stated to the TRC in 2003 that: … At one time, Mummy Peoples went on a journey and left me in care of another lady called Marion. While she was away, a rebel called Abdul virginated me. We were over 20 in number. All of us were virginated by different rebels. I became seriously ill and paralysed …482

Another girl as so many others had been lost in a forest after an ambush and told the TRC in 2003 that: In 1998, in the forest of Yardu Sandor, the rebels captured me and my sister … At midnight one of the rebels entered into the room and said “let us have sex”. So we told him that we do not know what he is talking about. He went outside and brought his gun … [H]e then entered to us again, with his gun and raped three of us. I was bleeding seriously …483

The girls were sometimes forced to choose between getting raped or killed and as one girl testified to the TRC in 2003: During the war when the rebels entered Madina a man met me sleeping. Th is man woke me up from sleep and told me he was going to rape me. This man asked me to choose whether he was to rape me or to kill me. Indeed, he raped me.484

Gang rapes and being raped together with others were also common, and as a girl states to the TRC in 2002: We were attacked on the road, on a vehicle and I was captured again … [A]long with some other people, we were taken into the bush … [A]fterwards they went to attack and we were left with some other rebels. These rebels forcefully had sex with us. All the women and girls were raped …485

Naturally many girls died from having been raped, as this statement to the TRC in 2003 reflects:

482 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 157, p. 269 483 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 158, p. 269 484 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 160, p. 270 485 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 161, p. 270

Armed Conflict, Transitional Justice and Children and Youth

In 1992, my village Foindu Mawie was attacked by the RUF rebels … [O]n their way going; they captured a young girl called Musu who was newly initiated into the women’s society. She was taken to a village called Juhun in the Upper Bambara chiefdom, where she was raped by the rebels. Her vagina became swollen and there was no medical treatment at that time. She later died of pains because she was newly initiated …486

13.7.2.1.5. Sexual Slavery In Sierra Leone it was especially RUF and AFRC that used girls as sex slaves and as “bush wives”, and they needed to be available not only to their “husband” but to all in the group at any time.487 As one girl stated to the TRC in 2003: I lost my virginity to this C.O. Koroma, who was 45 years old. I was kept in a locked room always ready for him to sex me. Sometimes when he is away, his junior boys will come and open the door, sometimes three, sometimes four men. They will force me, telling me if I refuse them they will kill me. As a small girl I will allow them to satisfy themselves till they leave me hopelessly …488

Another girl told of her ordeal in a statement to the TRC that: When I was captured, we used to go on attacks and food raids … [W]henever my husband was not around, his colleagues would come and rape me … [S]ometimes five, even up to ten of them would rape me for the day … They used to give me cocaine … [W]e had to fight and kill people before we could get food from them … [S] ometimes we ate mud and drank human blood.”489

The girls were extremely poorly treated and often became pregnant with their “husband” or another captor but still were not spared cruel treatment, rather the opposite, and the TRC found that instead the ill-treatment became worse when they were pregnant, as this girl who was 12 years old when she was captured stated to the TRC in 2003:

486 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 162, p. 270; Newly initiated meant that the girl had gone through FGM, note by author. 487 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 170-172, p. 272-273 488 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 172, p. 273 489 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 173, p. 273

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The second bush husband who took me was too jealous. He used to sex me all the time and the day I said I was unable or tired, he would beat me up mercilessly. I was denied food each time there was confusion between us. I stayed with Morray Kamara until the year 2000. While I was pregnant, he would beat me up and at one time when I tried to run away from him, he chased me, caught me and dragged me up. My left hand wrist got sprained, up till now. I finally escaped from him, leaving the two children behind.490

The many girls who had been raped and sexually abused during the war were infected by sexually transmitted infections or disease (STIs and STDs) which encompassed gonorrhoea, syphilis, Chlamydia and HIV/Aids.491 It is important to keep in mind that for the girls who had been raped and sexually violated and who had prior to the violation(s) been going through female genital mutilation (FGM), they were at a higher risk to get infected by the HIV/Aids virus because the FGM procedure leads to extensive damage to the genital area.492 At the end of the conflict there were no precise estimates of how many girls that had become infected by the HIV/Aids virus due to the widespread sexual violence, but the WHO estimated that about 16,000 children had HIV/Aids in 2002, and that at the end of 2001 about 42,000 were HIV/Aids orphans below the age of 15 years, which was an increase of 2 per cent compared to 1997.493 The level of poverty increased for many of the girls as a result of them having been sexually violated during the war as many became pregnant and because of this situation no longer went to school, and/or were forced into early marriages, and/or could not get additional skills training to improve their lives.494 The TRC reported that a majority of the girls have after the war experienced stigma, rejection, that their children

490 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 174, p. 273 491 Dr. Rashida Kamara, Connaught Hospital, Freetown, in an interview with the TRC, 11 July 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 367, p. 317 492 Dr. Rashida Kamara, Connaught Hospital, Freetown, in an interview with the TRC, 11 July 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 368, p. 318 493 World Health Organization (WHO), Epidemiological Fact Sheet on Hiv/Aids and Sexually Transmitted Infections, 2002 Update, in Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 369, p. 318 494 Dr. Rashida Kamara, Connaught Hospital, Freetown, in an interview with the TRC, 11 July 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 370-371, p. 318

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are labelled “rebel children”, and many have been re-traumatised because of these additional experiences.495 13.7.2.1.6. Amputations The RUF and AFRC amputated the limbs of anybody no matter their age or gender, and a four months old baby was the youngest amputee that the TRC registered in its database.496 These amputations were being done in a context of no or very limited medical care available. One child testified before the TRC, stating that: At about 2.00 a.m. the rebels attacked our town Batkanu … We were asleep … [A]s I woke up, I wanted to run away but unfortunately I met a rebel at the door … [T]hey continued to capture other girls … [T]hey had to put us all in the same place … [T] hey sent one boy who was just a little taller than me … to go and bring a mortar … I was the third person they called … [T]hey said I should lay my hand on the mortar … I placed my right hand and they chopped off the hand … [T]hey asked me to lay my left hand and they chopped it three times; the fourth time I had to remove it by force. The machete was dull, otherwise the hand would have come off … I was twelve years old then.497

Another child gave this statement to the TRC in 2003: I was attending the Ahmadiyya Muslim Secondary School, I was in Form 1. I was 14 years old. On 8 January 1999, RUF and AFRC soldiers came to my house … [T] hey captured me and some boys … They used a fence stick and hung me up like a goat. The handicapped rebel among them used a blunt axe and struck it twice on my left hand and broke my bone … [O]ne of the rebels came with a dispenser who cut off my hand without anaesthetic. My hand was given to my mother and she threw it into the sea …498

Another child told the TRC in 2003 that: … I was captured alone … by plenty of rebels. They asked me to choose between death and amputation. I did not reply them. They began to decide among themselves 495 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 372, p. 318 496 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 175, p. 274 497 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 175, p. 274 498 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 175, p. 274

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what to do to me. They finally agreed to cut off one of my feet. They brought a bulky stick and placed my foot on it … [T]hey first used a cutlass but it was blunt, they finally used an axe to amputate my right foot and went away. I was left lying on the ground unconscious until when my parents came in the morning …499

The children who had been amputated also experienced a lot of hardship after the war, and a boy who was amputated when he was 14 years old stated to the TRC: …When I was discharged [from hospital], I was ashamed to go to my area, I always lock myself up in my house so that people could not notice me. I have also stopped attending school …500

Many of the armed groups also used mutilation on children, and the most used acronyms were “RUF”, “AFRC” and “Ex-SLA” which were carved into the foreheads, chests, arms and backs of the children, and as one child testified before the TRC in 2003: One Saturday night, I was sleeping when the rebels attacked Bafodia at about 6.30 am in the morning. They surrounded the village and they knocked on our doors … [T]he rebels asked for the children … [T]hey forced the door open and captured eight of us … [I]n the morning they took us to another house where they inscribed “RUF” on our bodies.501

13.7.2.1.7. Torture Children experienced, just like in Liberia, mental and physical torture and inhuman and degrading treatment, and one mother gave the following statement to the TRC in 2003 about what her family had endured: Rebels attacked us in Teblahun on 19 January 1995 … [F]rom that point we became their captives … At Baoya, we met heavy fighting. During that fighting, my daughter Soffie’s fingers from both hands were cut off. Three fingers from one hand and two from the other; by then she was only twelve years old … After that, they took us to a place called Lekono. On our arrival, we were all told to enter one house, which we did and they set it on fire … [T]wo of my children were burnt in it. Both of them were girls, one was three and the other was five years old … At another time,

499 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 175, p. 274 500 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 177, p. 275 501 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 179, p. 275

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my grandchild, a boy of about seven years old called Mustapha, was stabbed in the stomach and his intestines came out …502

A child stated to the TRC in 2002 that: …We were all captured, by the RUF and were taken to Congo Bridge. I was stripped naked, tied up and put into their “detention container”. We were there for two days, naked and without food. I was beaten severely with the butts of guns by three men … I managed to escape … but I was again caught … I was then beaten even more severely.503

The children were forced to engage in cannibalism by the different armed groups, and as a child stated to the TRC in 2003: On 6 January 1999, RUF and SLA rebels attacked my house near Kissy Mental Hospital … [T]hey shot my sister at the top of her head and all her blood spilled over my body. I had wanted to cry, but they told me that if I do they would kill me also. The rebels also gave me human flesh to eat. After they have killed my sister, they cut off her head and they told me to dance and laugh; having done that, they released me.504

Another child gave the following statement to the TRC in 2002: On 17 June 1999, my friends and I went to Sittia to buy cassava. I was fourteen years old then. We were caught by the Kamajors on the way … [W]hile we were there they told us to sit under the sun … [T]hey questioned us, asking “why did our parents send us to buy cassava at a time of war?” We said it was because of hunger … While we were sitting a Kamajor by the name of Mboi came and took one of our brothers under a palm tree in a corner and killed him, cooked his body and served it as food. They gave it to us to eat, but we refused their food … [T]hey said they would kill us …505

502 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 182, p. 276 503 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 183, p. 276 504 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 185, p. 277 505 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 185, p. 277

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13.7.2.1.8. Forced Drugging The use of drugs by the different armed groups in Sierra Leone was widespread and many children were forced to use drugs especially prior to them participating in a battle or an attack.506 The drugs used were among others cocaine, cannabis, heroin, hallucinogenic drugs, gunpowder and “brown-brown”, and these were used by most commanders to keep the children under control and to have them commit the most horrific crimes, and cannabis was used the most.507 Alcohol abuse was also very common, including palm wine, beer, whisky and brandy, and a local mixture called “omole”, and the former Adjutant General of RUF, Jonathan Kposowa, said to TRC in 2003 that in the RUF it was “staple fare” to ingest alcoholic drinks and drugs.508 The children ingested the drugs in several different ways, through smoking, snorting, interjected, by drinking, interfusion and in many cases drugs had been put into the children’s food without them knowing about this, and other times children were forced to swallow pills against their will.509 Interfusion was the method to administer cocaine, which meant that the child’s skin was cut open and then the drug was put into the wound, while heroin “was smoked or snorted”, and gunpowder was put into the children’s food or as with cocaine by cutting the skin of the child and then putting gunpowder into the wound.510 Drugs in different forms were very easily available during the war both due to the breakdown of the regulatory national institutions, the local cultivation of marijuana and through internal and external trafficking by some actors making a lot of money out of the drug abuse and fuelling the conflict. As was explained by Dr. Nahim, the only Sierra Leone psychiatrist at time: “These drugs were easily available … [E]asily available in the sense that … because of the war, people smuggled a lot of drugs into the country … and then there was no control. The police couldn’t function and the customs also couldn’t function. So it was more or less like a free-for-all situation. Those who wanted drugs got them easily … sometimes even for free.”511 A Sierra Leone state security official said in an interview to the TRC in 2003 that “I think some of the combatants brought 506 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 195, p. 280 507 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 196, p. 280 and para. 293-296, p. 302 508 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 295, p. 302 509 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 296, p. 302 510 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 296, p. 302 511 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 297, p. 303

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in drugs, sold the drugs to the rebels in exchange for diamonds and money. So it was more or less an internal as well as an external trade. Internally, drugs were sold to the combatants and paid for with diamonds or money. Externally, the drugs were brought in and out as a transit point … to be sold overseas in Europe and America. So it was quite prevalent … and I think those engaged in the drugs trade made huge sums of money.”512 In some places more marijuana was grown than food even as people were starving, which reflected the priorities of those engaged in the business. The TRC registered in its database that at the time the children were forcibly drugged, 25 per cent had been 10 years or younger, 50 per cent had been 13 years or younger and 75 per cent had been 17 years or younger.513 There was only one psychiatrist in Sierra Leone at the time of the TRC report, and he had stayed in the country during the war and treated many ex-combatants for their drug abuse after the war, and he stated to the TRC in 2003 that “[d]rug abuse was used by all the warring factions and those controlling them as a sort of mind control [tactic] … wherein these young people … they give them drugs and tell them to commit the atrocities which they actually committed.”514 One former child soldier gave a statement to the TRC in 2003 saying that: … Before I was captured, the rebels shot my father and mother in front of me … [A]nd having killed them, one of the commanders grabbed me by the throat, tied both of my hands, cut parts of my body with blade and placed cocaine in it … I had no option but to join them because I no longer had parents.515

As another child stated to the TRC in 2003: …At the age of six, Commander Gbondema took me to Camp Zogoda for training. After my passing out, I began to go to the front … Before I was sent on the front, C.O. Gbondema used to inject me with cocaine on my forehead; he also gave me marijuana and alcohol to drink …516

Another child gave the following statement to the TRC in 2003:

512

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 299, p. 303 513 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 301, p. 304 514 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 293, p. 302 515 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 294, p. 302 516 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 195, p. 280

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One night in 1997 armed SLA soldiers entered our house in Makeni and took me away. I was aged 7 at the time. I was injected with cocaine on my right hand by my commander Col. Martin. I still have the scar on my hand.517

A girl stated to the TRC in 2003 that: Sometimes in 1995, whilst in the bush fetching wood, the rebels captured me together with some other girls. I was drugged with cocaine and asked to murder some villagers. I was also raped several times.518

Many children were both victims and perpetrators, and as one child stated in 2003 to the TRC that: In May 1996, I was captured by the RUF in Koya and taken to Masiaka; I was given a heavy load to carry, and later an AK-47 gun and was trained to shoot by my boss. In Warayma, he ordered me to kill people and I did … I was later given a tablet, which made me see people like birds. I then became perfect in using the gun and killed a lot of people in every attack.519

A 14-year old girl who had been a child soldier said in an interview to the TRC in 2003 that she used to take about thirty ‘blue boats’ (pills), ate ‘jamba plasas’ (marijuana mixed in a sauce with local vegetables) and drank ‘jamba tea’ (marijuana distilled as tea) every day, except if they ran out of supplies.520

Dr. Edward Nahim had many drug users as patients both during and after the conflict and he stated in an interview with TRC in 2003 that …I admitted many patients. There were ECOMOG soldiers, there were Sierra Leone soldiers … child soldiers, civilians and most of them had drug problems … During the January invasion and before any operation … that was a special operation … all of the frontline combatants were given drugs, either to eat, drink, smoke … or through injection, so that it will enter the blood stream directly … [T]hose that

517

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 196, p. 280 518 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 196, p. 280 519 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 198, p. 280 520 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 302, p. 304

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came to Freetown had cuts on their foreheads, which they rubbed with heroine and cocaine…”521

During the course of the confl ict children became addicted to taking drugs and continued taking them “voluntarily” as a result of their addiction, but it is also true that some commanders forced children to continue to take drugs as an exRUF Adjutant General testified before the TRC in 2003.522 Dr. Nahim continued: Whenever you take drugs … it doesn’t matter whether it is marijuana, alcohol, heroine or cocaine, the effect is the same. What happens is that you become confused … you cannot concentrate very well. Your attention is not sustained … [O]rientation for place and time is disturbed. That means you cannot even understand where you are, you cannot tell the time of the day or even the month …523

Furthermore Dr. Nahim stated that: Gunpowder was cooked and put into their food and drinks were given to them … to make them feel high … Before any operation … most of these frontline fighters were young children … [T]hey are either injected with drugs like heroin or cocaine and given gunpowder to drink … and some of them carry drink, which they rub on the wounds in their foreheads and so on. So in that state … the drug is affecting their brains and in a state of temporary mental insanity … their concentration is poor, they cannot think or reason properly. They committed atrocities like burning of houses, mutilating people, killing and raping.524

The TRC states that the different leaders of the armed groups, especially of the RUF, are the ones responsible “for the high rate of drug abuse” in Sierra Leone, and that drug abuse was a bigger issue within the SLA compared to RUF, as many of the child soldiers prior to having joined the SLA had by themselves developed drug habits in the urban ghettos where they lived.525 The TRC found that: 521 522 523 524 525

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 303, p. 304 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, footnote 270, para. 304, p. 304 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 306, p. 305 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 308, p. 305 Lieutnant Colonel Simeon N. Sheriff, officer in the Sierra Leone Army (SLA), in an interview with the TRC at the Defence Headquarters, Freetown, 12 September 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 309, p. 305

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all of the armed factions deliberately pursued a policy of forcibly administering drugs to children in order to loosen their inhibitions, spur them on to commit gross human rights violations and to participate in the conflict without fear. The Commission fi nds further that many of the children committed the most heinous violations while under the influence of drugs. The Commission finds that none of the armed factions has acknowledged the widespread use of drugs, nor expressed any remorse for the long-term consequences of prolonged drug abuse on individuals and on the future prospects of the country as a whole.526

As a result of the widespread drug abuse during the war, drug abuse had become a medical emergency after the war as drug abuse had become “out of control” which the psychiatrist Dr. Edward Nahim stated to the TRC in 2003.527 He said that at the time the adolescents aged 17 to 18 years had the most problems, and as a result of the drug abuse several children had schizophrenia. Former young soldiers suffered from physical symptoms as a result of long alcohol and drug abuse like the malfunctioning of their brain, heart and central nervous system.528 Cannabis was the most commonly used drug during the confl ict and continued to be used after the conflict, and as Dr. Nahim stated to the TRC in 2003: Cannabis sativa is so commonly used or abused in Sierra Leone … that I don’t think people consider it a crime any more to use it … It is so easily available that all you want to do, if you want to smoke cannabis, you can go to any place where they drink alcoholic drinks. Nearby you can get cannabis easily available no deal … nobody will say any word. For less than Le 5000, you can get a wrap that can make you feel high. As you can see, it is grown nearly everywhere in Sierra Leone today. You can get it anytime, anywhere, either for free or for a low fee.529

One issue was that many children who suffered from drug abuse had problems in school and were falling behind, and especially adolescents at the tertiary level had problems in their school work.530

526 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 311, p. 306 527 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 374, p. 319 528 Dr. Edward Nahim, psychiatrist and commentator on the use of drugs during the conflict, TRC Interview at Kissy Mental Hospital, Freetown, 30 July 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 378, p. 320 529 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 375, p. 319 530 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 377, p. 319

Armed Conflict, Transitional Justice and Children and Youth

13.7.2.1.9. After the War – The Child Soldiers After the war many former child soldiers were rejected by their families and communities due to them having been members of different armed groups and for the atrocities that many of them had committed during the war, and especially girls were singled out for rejection and stigmatization because of their experiences as “bush wives” or of sexual slavery in the war.531 The TRC registered that it was the RUF, during the ten years that the TRC kept statistics, that “forcibly recruited the highest number of combatants”, with the AFRC and CDF in the last years of the conflict slightly increasing their forcible recruitment, and that most of the victims who were forcibly recruited were children.532 The TRC’s statistics clearly showed that it was boys between 10–14 years old that in a “disproportionate” number were the targets of forcible recruitment, which led the TRC to conclude “that the armed groups deliberately sought to enlist” the young boys to fight.533 The TRC statistics showed that the second largest group were the young boys between 15–19 years old and that thirdly, almost as many as the second group, were the little boys between 5–9 years old. The first group to use child soldiers in the war was the RUF, and some children had in Liberia been given training prior to March 1991 (by NPFL who used them in the war in Liberia) when the RUF insurgency began.534 The RUF were copying the NPFL, and as the TRC states in its report, “[t]hus, from before the first shots were fired in 1991, Sierra Leonean children were drawn directly into the conflict”.535 From the very beginning the RUF had a strategy to forcibly abduct children, and intensified this strategy between 1993 and the beginning of 1996 by a widespread campaign to abduct and forcibly train both children and adults. As a result of its deliberate strategy to forcibly recruit children, according to the TRC’s statistics, the RUF had “the highest number of abductions of children” and “the largest number of children who were forcibly recruited into any armed faction”.536 The National Committee for Demobilisation, Disarmament and Rehabilitation (NCDDR) registered 3,710 RUF children, a number which was confirmed by the TRC, and the NCDDR stated to the TRC that “RUF had 531

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 380, p. 320 532 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 236-237, p. 289 533 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 237, p. 289 534 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 239, p. 290 535 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 239, p. 290 536 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 241, p. 290

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the highest number of children amongst all the factions who participated in the programme”.537 A former RUF General Staff Officer, Moigboi Moigande Kosia, said in an interview with the TRC in 2003 that when the RUF in 1991 came to the areas of Kailahun District that “[W]hen these areas were taken under control by these [RUF] people, a lot of civilians were captured or abducted and they were forced to undergo training…men, women-even old people and children.”538 RUF’s main strategy to abduct children was when coming into an area to have the children separated from their families and communities and just take the children with them to a RUF training camp for them to become child soldiers.539 Other strategies adopted by the RUF was to abduct children from schools (mostly in the rural areas), or take children from towns and villages they would attack and loot to become their porters and use them to carry the things they had taken, and thereafter these children would be used as child soldiers.540 While many RUF adult members have said that at the beginning of the conflict several children were willingly joining the group since they believed in the revolutionary ideology of the RUF, or because the children wanted to take part in the looting and receive a share, the TRC stated that on the contrary it was shown that most of the former RUF child soldiers that the TRC talked to had been abducted and forcibly recruited by the group.541 As an insight into the RUF thinking in his interview with the TRC the former RUF Adjutant General, Mr. Jonathan Kposowa, said in 2003 that “[t]hese RUF commanders were so many that they needed small boys to be behind them or use them as you know … or shall I say … doing their odd jobs and just to follow them … or either their wives or concubines will ask them that they should capture or abduct small girls … to assist them in their houses.”542 While the RUF was said to have a training manual also encompassing ideological training, most of the children the TRC talked to had not received any 537 The submission of the National Committee for Demobilisation, Disarmament and Rehabilitation (NCDDR) to the TRC, 4 August, 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 241, p. 290 538 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 241, p. 290 539 Confidential statement to the TRC, 20 February, 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 242, p. 291 540 Confidential statement to the TRC, 18 February, 2003, Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 242, p. 291 541 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 243-244, p. 291 542 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 245, p. 291

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ideological training more than were told why the RUF started the war, but other children had absolutely no idea why they were fighting or what they were fighting for.543 However, a little military training was given to all the ex-child soldiers that the TRC had interviewed, and that training, which was very tough, consisted of teaching the child how weapons are dismantled and assembled, and how to shoot with them. As one former child soldier told the TRC in 2002: At Madina in the Tonko Limba Chiefdom, we were given tough training. I trained along with the others … [W]e used to run with heavy sticks on our shoulders. I was personally trained by RUF Colonel Emmanuel to operate a G-3 weapon with the Third RUF Battalion. After the training, which was very short, we do the hard running …544

In a statement to the TRC in 2003 a former female soldier talked about the training the RUF gave her when she was a child soldier: After taking us to their base in Mattru Jong, we were trained to become fighters for six months … [I]n the mornings and evenings, we jogged for about 45 minutes … [W]e were also taught how to crawl and other war techniques … and if anyone made as if they were tired, he or she was killed.545

The RUF did not have an organizational structure and was an undisciplined movement, which was reflected by the child soldiers receiving military or ideological training arbitrarily, it was really up to the different commanders.546 However, the RUF had a hierarchy and this was presented in that the commander who had the most child soldiers under his control was given the most prestige, and then the second under him, etc.547 Boys and girls and adults were trained in the same way, and many children died since the training was so harsh, and as the TRC states in its report “only children who were really tough survived”.548 A former high-ranking RUF official told the TRC that the children had to sleep on bare

543 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 247, p. 292 544 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 248, p. 292 545 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 249, p. 292 546 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 252, p. 293 547 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 252, p. 293 548 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 253, p. 293

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floors, did not bathe for weeks, and their clothes were ragged and in tatters.549 The children had to find food for themselves because it was included in their training that they showed that they could take care of themselves, which meant that many children were starving, and as the following account to the TRC in 2003 by the former RUF General Staff Officer, Moigboi Moigande Kosia, reveals about the children: Most times, these people are being starved … I can definitely tell you that they have to find their own food, even when they are locked up, there is nothing like food to give them … So the boys were starved on the base, even the SBUs … and then somebody had a leaf or paper wherein you just put one spoon for the boys … so some of them died … some were so thin …550

The child soldiers who were boys and who when they became combatants were under the “immediate command” of another child commander who in turn reported to the Town or Ground Commander who was the supervisor for that particular area of all the fighters constituted one kind of child unit.551 To be promoted to become the SBU Commander the child needed to show that he was a “ruthless fighter” or “a wild boy or hard boy”, which meant that the boy was able to commit the worst violations of human rights.552 A former RUF G-2 commander and RUF representative in the Eastern Province, Patrick Beinda, explained in an interview to the TRC in 2003 what kind of child that would be promoted to become a commander: “more criminally minded, that is able to take care of certain issues that are required of a group, he is made a commander.”553 The cruelty and the commissions of all the human rights violations were a totally deliberate strategy on the part of the RUF high command, and children were deliberately used in that strategy as a tool. The RUF’s Small Girls Units (SGUs) had much of the same structures as the SBUs had, except that it was women who were a bit older from the Women Auxiliary Corps (WACS) who became the commanders of these girls’ units and

549 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 253, p. 293 550 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 253, p. 293 551 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 255, p. 293 552 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 257, p. 294 553 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 257, p. 294

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not a girl child soldier herself, as it was with the boys having another boy soldier as the commander.554 As a former girl child soldier stated to the TRC in 2003: After the Kamajors attacked us, we moved to Jimmy Bagbo and were left in the hands of older women commanders who greatly maltreated us … [W]e were all trained to fight and given only a handful of dry gari per day … [W]e were also sent to raid neighboring villages to loot food … If anyone disobeyed you were cruelly beaten up.555

The TRC reported that: [t]he treatment of child combatants in the RUF was characterised by extreme cruelty. Living in an environment of total paranoia and oppression, where survival depended on being even more brutal than one’s captors, led to the kinds of atrocities that Sierra Leone witnessed on such a terrifying scale. In the process, many children became hardened and immune to the savagery they were infl icting on others. They experienced a deep sense of dislocation and disjuncture from society.556

13.7.2.1.10. The Civil Defence Forces Several children who fought for the pro-government forces, the Civil Defence Forces (CDF), said that they did this in order to “fight to preserve their communities and their cultural identities”, while others fought for social justice, patriotism and religious beliefs.557 Some parents agreed to have their children join the CDF as a means to protect their children, and as a consultant stated in an interview with the TRC in 2003 that “some parents had their children, especially male children, initiated into the CDF (Kamajors) because they felt that the magical powers that initiates were said to acquire on initiation, such as the non-penetration of bullets into their bodies, would help secure their children’s lives”.558 The CDF was comprised of several different ethnic groups and the Kamajors had most fighters in the forces, and while the fighters in the beginning were present only “in and

554 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 259, p. 294 555 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 260, p. 294 556 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 264, p. 295 557 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 218, p. 285 558 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, footnote 179, p. 285

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around their own local communities” as the conflict continued they were fighting in many other areas of the country.559 While some Kamajors members have denied that they used child soldiers, the NCDDR registered 2,026 former child combatants as having been members of the CDF and most of these children were members of the Kamajors, and children having belonged to the CDF were the second largest group to demobilize.560 The CDF leadership had made attempts prior to the start of the DDR process to end the practice of the use of child soldiers, and chief Hinga Norman, the then Deputy Minister of Defence, and a CDF National Co-ordinating Committee member, sent out a public statement ordering an end to children becoming initiated which in turn led to membership of the Kamajors.561 He furthermore ordered that all the initiated children at the time were not to be used in fighting or for security duties anymore, and that they no longer would possess any weapons. Security duties of the children included manning checkpoints where the children, spurred on by their supervisors, committed several abuses against the civilians wanting to pass through, especially beatings, which was of a major concern for the civilians.562 There was political pressure on the village elders “to hand over a certain ‘quota’ of children as soldiers or risk damage to their credibility within the community”, and as a result the recruitment of children into the CDF many times originated from the request of the village elders.563 The UNICEF in a submission to the TRC stated that children were many times told that it was their “civic duty” to fight in order to defend their communities.564 Many parents asked that the CDF Kamajors faction would initiate their boys, however at the same time the TRC found that the parents often were afraid that the initiators and their chiefs would become angry if they did not let their children join the Kamajors and thus felt forced to enlist them.565 The TRC in some of the testimonies from the children they received were told that the children were “willingly” joining the Kamajors so that they could provide protection to their villages and towns, however the 559 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 265, p. 295 560 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 267, p. 296 561 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 268, p. 296 562 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 275, p. 298 563 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 269, p. 296 564 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 269, p. 296 565 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 270, p. 297

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TRC also got information that the elders put a lot of pressure on the children to enlist.566 An initiation fee to become members of the CDF and the Kamajors Society was required by children and adults alike, which included the rites of initiation, and when they were completed amulets were presented to both children and adults and they were supposed to bring “magical powers of protection” onto their bearers.567 The Kamajors’ initiation ritual was compulsory for both adult and child recruits which in the view of the TRC “represented a cynical abuse of the good faith of its initiates, using techniques of physical and psychological manipulation for no other purpose than to assemble a fighting force”, and not as the Kamajors wanted others to believe part of traditional hunting societies’ spiritual and cultural beliefs.568 Hysteria about “the need for the communities and their people ‘to protect themselves’” originated from the initiators and the CDF leadership, which led to many people letting themselves and especially their children be initiated into the Kamajors.569 Many children were also put in additional danger as they were led to believe that they would be protected in battle by the special powers they would receive through being taught to incorporate into their rituals the art of “magic” and different herbs.570 The initiators within the Kamajors grew powerful to the extent that the individuals including children that they had initiated into the Society were more loyal to their initiator than to their commander.571 This led to “a dual leadership structure” with the initiators and the commanders becoming rivals, and where a number of initiators no longer followed the law and ignored the chiefdom elders’ authority.572 Instead these units arrested people, held kangaroo courts and punished people according to their own arbitrary rules, and for these tasks they many times used children.573 There were no rules or directions for children in the Kamajors unit, and the children soon developed distorted ideas regarding 566 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 270, p. 297 567 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 271, p. 297 568 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 272, p. 297 569 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 272, p. 297 570 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 273, p. 297 571 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 276, p. 298 572 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 276, p. 298 573 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 276, p. 298

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authority and power making it very difficult for the children to function within their communities. The TRC received testimonies about Kamajor children who invoked their membership in the Kamajors Society when their teachers asked them to carry out a task, for instance claiming that it was taboo to touch a broom and therefore they should be exempt from sweeping the floors in a classroom.574 The CDF and the Kamajors had different rules and regulations, and so did the different units within the Kamajors, where some units punished members who had unlawfully killed civilians for example. However as the conflict continued, if members paid for an initiation ceremony that would “cleanse” them from having for instance killed, raped or looted persons in the civilian population, there would be no punishment.575 13.7.2.1.11. The Sierra Leone Army The Sierra Leone Army (SLA) first began to recruit children into its ranks at the time when Joseph Saidu Momoh was the President and who recommended the chiefs and traditional leaders to make the civilian population become members of vigilante groups and to use these groups in the conduct of war, since he did not believe that the SLA would be able to carry out the war by itself.576 When the NPRC came to power, the SLA began to engage in a huge recruitment campaign of children on the grounds that this was needed as a result of the “national emergency” of war. In a statement to the TRC in 2003, Lieutenant Colonel Simeon Sheriff, SLA officer, stated that18 years of age had been the standard minimum age policy for the army to recruit persons, and that the army failed to establish a minimum age to be recruited was a major reason as to why children were recruited.577 As was the case, during the NPRC rule, as the recruitment of children grew, “a primary source for recruitment” was the teenagers from the age of 15 years who came from the vigilante groups established during the President Momoh regime and who the army came to incorporate, but a huge recruitment campaign was also carried out in the urban area of Freetown and many children and teenagers were recruited into the SLA by the NPRC government.578 Lieutenant Colonel Simeon Sheriff further told the TRC that about 16,000 people were recruited into

574 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 277, p. 298 575 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 278, p. 298 576 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 279, p. 299 577 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 281-282, p. 299 578 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 281-282, p. 299

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the army of which many were children during the NPRC government.579 There were several reasons why children became members of the army including living under “extreme hardship”, poverty, and the “patriotism” felt by youth when the NPRC became the government.580 The Army identified potential child recruits through sports in school and physical exercise, and they were for instance subjected to run long-distances to measure their strength and endurance. The Army also captured children and adult civilians, and in the war zones the children were often assigned to do logistics duty.581 Lieutenant Colonel Simeon Sheriff also stated to the TRC that when soldiers died their official roll numbers were assigned to the children, and much money was embezzled this way because it was not the children that received the salaries and benefits of the soldiers that had died and whom they had replaced.582 Instead the children were not registered in their own name, the dead soldiers “lived on” and their salaries and benefits went to the military officers and top administrators who the children had been recruited by. The Army’s standard training period before the war had been nine months, but during the war the training period had become three months, a “crash-course” which put children in danger, and the children became soldiers of the lower ranks who did the menial jobs, and the rules and procedures within the Army that existed were applied much more severely onto the children than to the adult soldiers.583 The Army during the war recruited many different individuals with suspicious backgrounds, and Lieutenant Colonel Simeon Sheriff told the TRC that “[d] uring the war years also, the cherished gate of the military was thrown open to good citizens, criminals and hooligans alike … in the hope of flooding the war front with enough manpower to prosecute the war. These undeserving individuals quickly exploited their uniforms and guns for personal, sectional and other selfish interests.”584 Furthermore he stated: “Like I said, you really need to look at the age target of the recruits … and at the time we did not really have a mechanism in place to filter people, to screen people. We only looked at people who were willing … and those who came forward to say: ‘we can go’ … Characters were

579 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 283, p. 299 580 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 283, p. 299 581 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 285, p. 300 582 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 286, p. 300 583 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 287 and 289, p. 300 584 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 290, p. 301

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not questioned at all …”585 One officer in the SLA and before that in the AFRC, Sergeant Jonathan Showers, explained that it was hard to control a number of these recruits and maintain discipline, and that some began to copy the behaviour of the insurgents the Army was fighting.586 However in some instances the Army was able to uphold discipline, and he continued that the child soldiers “were punished according to their physical size”, and that these punishments were supposed to be “corrective”.587 13.7.2.1.12. The Economic Consequences for the Children The war resulted in that many children in Sierra Leone had to work, and a survey in 2000 showed that 48 per cent of all children worked without pay for a person who was not a member of the household, and of these children 10 per cent worked over four hours per day.588 While this is not a new phenomenon, traditionally many children from poorer families have been sent to either family or friends to be taken care of, this way to foster children informally has become more prevalent as a consequence of the conflict as many people have become even more poor and destitute.589 Many children have over the years been very ill-treated while in these foster homes, and as has been explained: Generally [fostered children] do receive more severe beatings than children living with their mothers, and they perform the most physically arduous work. They receive less medical care compared to children with their mothers and their complaints of illness are often dismissed as faking to avoid work. Many receive little animal protein from their caretakers and are given food of poorer quality, such as the crusty, burnt rice at the bottom of the cooking pot. They must share a basin of food with large groups and with older, more competitive eaters … [T]hey receive few snacks, whether intentionally or through oversight. Foster children are punished frequently by food deprivation … leading many to forage largely for themselves … picking wild fruits, stealing … [R]ates of malnutrition and deaths are highest among younger ones.”590 585 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 290, p. 301 586 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 291, p. 301 587 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 291 and 292, p. 301 588 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 330, p. 310 589 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 332 and 334, p. 310 590 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 333, p. 310

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For the diamond-mining industry the war, during and after, led to “a noticeable growth” of children working in the mines, compared to the number of children who had worked in the mines before the war, and World Vision stated to the TRC that: The war aggravated the involvement of children in mining activities. In Kono District and elsewhere, many children were captured and conscripted into the RUF and AFRC fighting forces. Those children captured … were forced to engage in mining activities, where they were used to provide slave labour. These child combatants and other abducted children were ultimately seeking fortunes for their commandos. Many of the children and youth who escaped capture by the RUF were later recruited by the CDF, the Kamajors. The children who were with the Kamajors were later to become miners too.591

The World Vision conducted a survey in 2002 of children working in the mines, of which 75 per cent said that to earn money was the most important reason for them to engage in this kind of work.592 The World Vision further told the TRC that: [children] are clearly not in the mines on their own volition. Th is is clearly an act of child abuse bordering on exploitation. Many of these children have abandoned all educational pursuits, including acquiring vocational skills. There are children who are being used by their parents, other relatives and greedy crew bosses purely for their own selfish gains. These children have limited access to health care and educational facilities … [M]ost of the benefits from their mining activities will only benefit the financiers, who are in places far away from the mine pits. Ultimately, these children will be abandoned at a time when it will be too late to acquire any skills or return to any formal educational institution … thereby making them social burdens putting much demands on society.593

Another consequence of the war was a “marked growth all over the country in the sex trade” as many young girls felt compelled to engage in the sex trade because of poverty.594 Further, a high number of child-headed households have emerged after the war since so many children lost their parents or guardians, and a governmental survey from 2000 on the number of orphans was disclaimed 591

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 335, p. 311 592 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 337, p. 312 593 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 338, p. 312 594 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 339, p. 312

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by the government as not representing the reality as it meant that the number of orphans in Sierra Leone was much higher than the survey showed.595 13.7.2.1.13. Street Children A taskforce was set up by the Sierra Leone Ministry of Social Welfare, Gender and Children’s Affairs (MSWGCA) for street children as well as a programme regarding children in conflict with the law which would “co-ordinate and monitor the activities related to street children”.596 The Parliament established through an act the National Commission for War Affected Children (NaCWAC) in 2001 which began to function in 2002, which had the aim of helping in particular street children and other war-affected children be rehabilitated and reintegrated into society. This Commission came into being at the suggestion of the former Special Representative of the UN Secretary-General on Children and Armed Conflict, Olara Otunnu, and its activities are focused on Advocacy and the Voice of Children, Policy and Institutional Links and Mechanisms for Children’s Empowerment.597 However, the TRC remarked that the Commission had “lost focus” and instead duplicated work of the different child protection agencies, and that it did not establish a project on advocacy for street and amputee children until 2004 which was “a clear indication that it had been preoccupied with issues unrelated to its primary duties before this time”.598 Instead the TRC suggested that the Commission would concentrate on getting the Parliament to adopt the Child Rights Bill, and to raise awareness of the other child rights laws which at the time were not forthcoming.599 The number of street children increased dramatically in Sierra Leone due to the war, and became one of the most important child protection issues, and by 2004 at the time of the TRC’s report there were still no data available on how many children there were.600 In a survey of street children from 2003 it was shown that 38 per cent of them were on the street because of poverty, 24 per cent said because of having become displaced due to the war and 21 per cent stated

595 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 340, p. 312 596 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 415, p. 329 597 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 415-417, p. 329 598 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 418- 419, p. 329-330 599 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 420, p. 330 600 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 408, p. 328

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because of family pressure or disagreement.601 The TRC, referring to the survey, noted that 80 per cent of these children were male and 20 per cent female, and that “69% of street children and 8% of other war-affected children had a least one parent dead or missing, while 4.8% of the war-affected children were orphans with both parents dead”.602 Two categories of street children transpired, children “in the street” and children “of the street”.603 The TRC reported that the children “in the street” were growing in number in particularly the urban areas where they had menial jobs, begged for cash and sold things such as cigarettes, fruit and water, while the children “of the street” lived in uncompleted buildings, markets, churches, mosques and different communal places.604 Especially the youngest street children and the girls have been especially exposed to becoming physically, sexually and psychologically violated, and a study in 2000 showed that 60 per cent of the sex workers had prior to this work engaged in street hawking or trading.605 13.7.2.1.14. Children as Perpetrators and Victims With regards to Sierra Leone and the issue whether children as perpetrators under the age of 18 years should be held accountable, the UN Security Council members have stated that they “continue to believe it is extremely unlikely that juvenile offenders will in fact come before the Special Court and that other institutions, such as the Truth and Reconciliation Commission, are better suited to address cases involving juveniles”.606 The Sierra Leone TRC stated that it had “deliberately chosen to treat children neutrally as witnesses, seeking to understand their experiences as both victims and perpetrators”.607 As the TRC remarked, children are impressionable, easy to manage and maintain, they are obediently following orders and not questioning their leaders, they are not difficult to intimidate, and many children want to please their elders for reasons such as being safe, being affirmed and getting attention, and many 601 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 409, p. 328 602 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 411, p. 328 603 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 410, p. 328 604 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 410, p. 328 605 Cited in Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed confl ict in Sierra Leone, 2004, para. 412, p. 328 606 United Nations Security Council, Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General, S/2001/95, 31 January, 2001 607 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 198, p. 280

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commanders took advantage of this desire to please so that the child would commit atrocities.608 In Sierra Leone child soldiers were given names glorifying their deeds and these names spurred them on to commit more violations. Names that some children got were “Merciful Killer”, “Small Pepper”, “Burn House”, “Cut Hand”, “Kill Man No Blood”, “Dirty Box” and “Dead Man No Count”.609 As the TRC stated children do not have a real sense of danger and combined with lack of maturity they often take extra risks, and in the case of Sierra Leone the lack of a sense of danger together with drug abuse made it possible for the commanders and other military adults to utilize the children for the most horrific tasks and place them knowingly in utter danger.610 The TRC received testimonies from commanders where they revealed that “small children” had been scouts and had been put in the front lines, and a number of such children in testimonies to the TRC said that when they were drugged they did not feel fear or inhibited and were thus able to carry out several violations.611 The TRC reported that in Sierra Leone specifically the child soldiers were especially good at using light weapons, as well as cutlasses, axes, knives and different flammable liquids like petrol and kerosene.612 The children knew how to use them because they used many of these objects before the conflict at home every day, which was the reason why so many children turned into “effective combatants” without any real training.613 The TRC took up the issue of the children as child soldiers not only having been victims but also perpetrators who committed the same kind of violations that the adults had committed against them, and the TRC argued that to look at the role of the children as perpetrators was done in order to be able to understand how it was possible for the children to commit the kinds of violations they did, and was not done in order “to explore guilt” on behalf of the children.614 As has been noted while the TRC argued that it looked upon the child soldiers “as neutral witnesses”, the TRC also wanted to examine the children’s motivations and see if they were capable of understanding the activities and violations 608 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 206-211, p. 282 609 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 209, p. 282 610 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 210, p. 282 611 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 210, p. 282 612 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 214, p. 283 613 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 214, p. 283 614 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 225 and 228, p. 286

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they had been involved in. As the TRC stated the children had become “direct participants in the conflict” as perpetrators and “were involved in all aspects of modern warfare, ranging from serving as human shields, spies, messengers and porters to wielding guns as soldiers on the front lines and commandos in the jungles of the countryside”.615 While the children were in the beginning stages of them becoming child soldiers forced to commit many violations and atrocities, several eventually became willing participants themselves, committing some of the worst kind of atrocities, and “often behaved absolutely without inhibition”.616 The child soldiers in Sierra Leone perpetrated many violations such as killing, abduction, amputation, mutilation, extortion, looting and destruction, rape and sexual violence, abduction and forced recruitment, forced displacement, forced detention, assault, torture, beating and forced labour.617 The TRC reported that the testimonies showed a pattern where the children were forced “to become even more ruthless than their captors in order to survive”.618 This was because being ruthless many times was a guarantee to gain not only “respect” but safety, and as the TRC stated the “[c]hildren learnt very quickly that the more violently they behaved, the more they would be assured of protecting themselves within their group and surviving”.619 It was especially in RUF, AFRC and the West Side Boys that this pattern became visible. Another factor in the children committing violations was peer pressure, where group acceptance and affirmation and group conformity all contributed “to a sense of belonging and pride”, since many times the other child soldiers as well as their leaders praised them when they had showed their fearless capacity to meet violence.620 One of the findings of the TRC was: that the abduction of children by the armed groups and in particular the RUF and the AFRC and their forcible recruitment of child soldiers constitutes a grave violation of international law for which the leadership must be held accountable. The Commission also finds that the notion of children ‘volunteering’ to join the armed groups such as occurred mainly within the CDF but also in the SLA completely un-

615 616 617 618 619 620

Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 226, p. 286 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 227, p. 286 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 228, p. 286 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 230, p. 286 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 230, p. 286 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 232, p. 288

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acceptable as children do not have the ability or the capacity to ‘volunteer’. Simply put ‘they have no choice.’621

Another finding was “that the recruitment of children within the armed factions as soldiers constitutes a violation of international law for which the leadership must be held accountable. In the course of recruiting children as child soldiers, the rights of children have been violated.”622 In the final report by the TRC it was concluded that:623 While it may be illusory to think that bodies like truth commissions can establish a complete historical record, they can nevertheless discredit and debunk certain lies about conflicts. If they can accomplish only this, their work may contribute validly to the rebuilding of a stable social environment on the ruins of conflict and war.

13.8.

The Liberian Truth and Reconciliation Commission

The women of Liberia played a very significant and well-known role in ending the long-term internal conflict in Liberia and one of their most important achievements was that they were able to bring “the warring parties together to talk to each other”, which other actors had not been able to do.624 However, the women were not invited to be formally part of the peace negotiations more than as observers and only very few women were invited to sit in at the peace talks “observing”.625 As it is stated in the report of the Liberian Truth and Reconciliation Commission, while the negotiations went on without the women being formally part of these “the remaining factions in Liberia engaged in a ‘frenzy’ of rape, playing out fear and rage at the impending arrival of the peacekeepers once more through the bodies of women and girls”.626 The peace agreement that ended the war in Liberia, the Comprehensive Peace Agreement of 18 August 2003, specifically requested the Liberian National Transitional Government “to accord particular attention to the issue of rehabilitation of vulnerable groups or war victims (children, women, the elderly and 621 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 234, p. 288 622 Sierra Leone Truth and Reconciliation Commission, Final Report, Vol. 3B, Chapter 4, Children and armed conflict in Sierra Leone, 2004, para. 234, p. 288 623 Sierra Leone Truth and Reconciliation Commission Final Report (2004), Vol. 1, Chapter 1, para. 26 624 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 6, http://trcofliberia.org 625 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 6 626 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 6

Armed Conflict, Transitional Justice and Children and Youth

the disabled).”627 Furthermore in Article 12 of the Peace Agreement a truth and reconciliation commission was to be established “as an opportunity for both the victims and perpetrators of human rights violations to share their experiences, in order to get a clear picture of the past to facilitate genuine healing and reconciliation.”628 The Truth and Reconciliation Commission for Liberia was set up by “An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia”, which the National Transitional Legislative Assembly of the National Transitional Government was enacting in May 2005. President Ellen Johnson Sirleaf who had been elected in November 2005, formally in February 2006, appointed the nine members of the Commission when it was installed, and it began its work in June 2006 and presented its report on 30 June 2009 after it had received 22,000 statements from people in 15 of all the country’s counties.629 In the preamble to the Act establishing the Liberian Truth and Reconciliation Commission, the TRC was to take into account not only a list of international and regional treaties and documents but also “other international conventions and protocols relating to the rights and protection of women and children”.630 The mandate for the TRC ranged from investigating events between 1 January 1979 and 14 October 2003 and included:631 –

Investigating gross human rights violations and violations of international humanitarian law as well as abuses that occurred, including massacres, sexual violations, murder, extra-judicial killings and economic crimes …

627 Peace Agreement Between the Government of Liberia (GOL), the Liberians United for Reconciliation and Democracy (LURD), the Movement for Democracy in Liberia (MODEL) and the Political Parties, Accra, Ghana, 18th August 2003, Republic of Liberia, Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, (Updated December 3, 2009), footnote 3, p. 3-4 628 In the Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 4 629 An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, Enacted by the National Transitional Legislative Assembly on May 2005, Article III, Section 2, Republic of Liberia, Truth and Reconciliation Commission: Volume Three: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 10-11; and Volume II: Consolidated Final Report, p. vi, Executive Summary, p. 2; President Ellen Johnson Sirleaf was not only the first woman president in Liberia but in the whole of Africa; It was the Chairman of the National Transitional Government, Charles Gyude Bryant, that on October 19, 2005 first presented the nine Commission members: Introduction, p. 14: see also Preamble to The TRC Act, and Article V, Section 7 and 10: Four of the nine members needed to be women. 630 An Act to Establish the Truth and Reconciliation Commission of Liberia (The TRC Act) of 12 May 2005 631 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 4; An Act to Establish the Truth and Reconciliation Commission of Liberia (The TRC Act) of 12 May 2005, Section 4

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–

–

–

–

Helping restore the human dignity of victims and promote reconciliation by providing an opportunity for victims, witnesses, and others to give an account of the violations and abuses suffered and for perpetrators to relate their experiences … giving special attention to … the experiences of children and women during armed confl icts in Liberia. Adopting specific mechanisms and procedures to address the experiences of women, children and vulnerable groups, paying particular attention to gender based violations, as well as to the issue of child soldiers … Addressing concerns and recommending measures to be taken for the rehabilitation of victims of human rights violations in the spirit of national reconciliation and healing. Compiling a report that includes a comprehensive account of the activities of the Commission, and its findings.

The Liberian TRC that was established was gender sensitive, and it was acknowledged that women had been excluded from the peace negotiations which led to that the TRC Act specifically stipulated that women should participate and be included in the work of the Commission and gave specific guidance for how women should be treated by the TRC.632 The Act establishing the Liberian Truth and Reconciliation Commission stated that: [t]he TRC shall consider and be sensitive to issues of human rights violations, gender and gender-based violence thus ensuring that no one with a known record of human rights violations are employed by the TRC and that gender mainstreaming characterizes its work, operations and functions, ensuring therefore that women are fully represented and staffed at all levels of the work of the TRC and that special mechanisms are employed to handle women and children victims and perpetrators, not only to protect their dignity and safety but also to avoid re-traumatization.633

As a result the Liberian TRC Act includes several provisions on the involvement of women in its process, as the Act:634 –

reaffirms the commitment of the Liberian people to ‘international conventions and protocols relating to the rights and protections of women and children’, The preamble, paragraph 12;

632 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 10-11 633 An Act to Establish the Truth and Reconciliation Commission of Liberia (The TRC Act) of 12 May 2005, Section 24 634 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 10-11; An Act to Establish the Truth and Reconciliation Commission of Liberia (The TRC Act) of 12 May 2005

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– – – – –

calls for the Commission to adopt specific measures to address the experiences of women, children and vulnerable groups, Article IV, Section 4e; stipulates that no fewer than four of the nine commissioners be women, Article V, Section 7; explicitly states that the TRC shall be sensitive to issues of gender and genderbased violence (GBV) Article VI, Section 24, and Article VII, Section 26f; calls for special programs to enable women and children to provide testimony, Article VII, Section 26o; and calls for the provision of witness protection for children and women who may experience trauma, stigmatization, or threats if they tell their stories, Article VII, Section 26n.

Also, the TRC Report specifically clarifies that in Section 4(a) of the Act the meaning of the term “including” was that “other serious human rights violations” that women had experienced during the 14 year long conflict and that had not been explicitly referred to also were to be investigated by the TRC if needed, and they included disappearances, torture, disembowelment of pregnant women, decapitation, maiming, mutilations, amputations and cruel treatment.635 In its report the TRC issued “Recommendations to Address the Needs of Women and Girls and to Advance Gender Equality in Liberia.”636 First of all the TRC in its report addresses the issue of gender inequality in Liberia and makes reference to the Convention on the Elimination of Discrimination Against Women (ratified by Liberia in 1984) as it mentions that Liberia would in July 2009 present a report to the CEDAW Committee.637 The TRC in its report “strongly recommended” that Liberia would set up a mechanism that would report on and monitor how the Liberian government was implementing the awaited recommendations by the CEDAW Committee, as the TRC explicitly anticipated that the CEDAW Committee “will make a number of recommendations to the Liberian government for them to fulfi l their obligation to eliminate all forms of discrimination against women”.638 Other recommendations that the TRC issued included recommendations on reparations to women for the suffering and abuses which women had endured during the 14 year long civil war, since “the state is responsible for reparations to victims”.639 The TRC cited various forms of repara635 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 11 636 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, Part III, p. 81 637 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, Part III, p. 81 638 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 81-82 639 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 86

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tions such as “restitution (restoring the victim to the original situation before the violation), compensation for economic damages, rehabilitation (medical and psychological care, legal, and social services), satisfaction (public disclosure of the truth, public apologies, commemorations and tributes to victims), or guarantees of non-repetition through reform of state institutions”.640 The TRC in its report specifically states that:641 – – – – –

All women who suffered sexual violations must receive free medical services; All women who suffered physical violence and are suffering as a result must receive free medical services; Psychosocial/trauma counselling for women must be continued; Scholarships must be provided to the children of women whose husbands, partners or breadwinners were killed; Individual reparation to be determined on a case-by-case basis must be given to all women who either gave statements to the TRC or who testified at the public or in-camera hearings.

The TRC report further stipulates that:642 GOL [Government of Liberia] must facilitate the reunification of women who were used as sex slaves, bore children for fighters but whose children were taken away from them by fighters at the end of the war, and who want to be reunited with their children the opportunity to be reunited with their children. Most women have said this will facilitate their healing process and promote the ends of justice.

The Liberian TRC also recommends that specialized clinics be established for women who were sexually abused during the war, and that all survivors of rape and sexual violence would be given “free and consistent” medical and psychological healthcare.643 In post-conflict Liberia after years of war the situation for adolescent girls is especially difficult, where only 39 per cent of girls have enrolled into primary school, 14 per cent of the girls have enrolled in secondary school, and 24 per cent of the adolescent girls and young women between 15–24 years of age are illiter-

640 Republic of Liberia, Truth and Reconciliation Commission, Volume Three: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 86 641 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 86 642 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 86 643 Republic of Liberia, Truth and Reconciliation Commission, Volume Th ree: Appendices, Title 1: Women and the Conflict, June 30, 2009, p. 87

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ate.644 Furthermore, girls between 10–14 years of age are the most frequent victims of rape and this is the most frequently reported crime. Among the young women between 15–24 years of age 21 per cent have good knowledge of HIV/AIDS. The rate of child marriages is high, with 40 per cent of the women between 20–24 years having been married before 18 years of age. Liberia has the second highest adolescent birth rate in the world for girls between 15–19 years of age with 221 births per 1,000, and the maternal mortality rate is 1,200 per 100,000 live births. The girls between 10–14 years in Liberia have a five times higher risk from dying from pregnancy and childbirth related causes than women between 20–24 years of age, this in an environment where only about 37 per cent of the births occur in institutional settings and where only 51 per cent of the births are attended to by a qualified health professional. In Liberia the lifetime risk of maternal deaths is 1 in 12, and 1 in every 10 new-born infants dies before their first birthday. As Liberia’s Minister of Gender and Development Honorable Vabah Gayflor states, the adolescent girls in Liberia probably will not have any support from a partner even if she is married and she will have little or no recourse to protection from further abuse, exploitation and disempowerment.645 13.8.1.

The Liberian Truth and Reconciliation Commission and Children Consisting of members of all armed factions that operated during the Liberian wars, perpetrators specifically targeted children in the commission of gross violations of international law, including gross violations of international human rights law and serious violations of international humanitarian law. These violations included targeted killings and extermination, abduction and forced recruitment, forced labor, rape and other forms of sexual violence including sexual slavery and gang rape, forced marriage, and torture.646

The Liberian society has been deeply divided and unequal since its foundation in 1822 and its establishment as the independent Republic of Liberia in 1847, where the native Liberians were made to have inferior status lacking citizenship (until 1904) compared to the Americo-Liberians, the settlers, who estab-

644 The information in this section is taken in full from the Honourable Vabah Gayflor, Minister of Gender and Development in Liberia, The Challenges faced by adolescent girls in Liberia, in UNICEF, Maternal and Newborn Health: Where We Stand, the State of the World’s Children 2009, p. 64 645 The Honourable Vabah Gayflor, Minister of Gender and Development in Liberia, The Challenges faced by adolescent girls in Liberia, in UNICEF, Maternal and newborn health: Where we stand, the State of the World’s Children 2009, p. 64 646 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, (Updated December 3, 2009), p. 96

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lished themselves as the superior class.647 Subsequent authoritarian regimes first with President Tubman (1944–1971) who according to the TRC introduced “the culture of extermination of political opposition”, then the regimes of Tolbert, Samuel Doe with his “targeting of political opposition” and the warlord politics by Charles Taylor all created the conditions for violence and armed conflict.648 Inequality has persisted in Liberia up until the present day leaving the majority of the population without an education, health care or work opportunities because of lack of access and resources. The internal armed conflict took place during two phases between 1989–1997 (the Liberian Civil War) and between 1999–August 2003 (the insurrection against the Charles Taylor regime by LURD and MODEL), and the TRC found that “[t]he major root causes of the conflict are attributable to poverty, greed, corruption, limited access to education, economic, social, civil and political inequalities; identity conflict, land tenure and distribution, etc.”.649 Access to education, primary and secondary, has traditionally been extremely limited to children in Liberia, affecting all children but mostly girls, and in the Liberian 2008 Poverty Reduction Strategy it was acknowledged that “[i]n the past, education has been a means by which certain groups dominated Liberian society and sustained their domination”.650 The huge inequalities and few opportunities for social mobility could have been one reason why some children and youth chose to join an armed group to both “rapidly reverse traditional power structures and to gain access to material wealth and consumption”.651 The traditional practice of rural families sending their children to foster families in Monrovia to work in the family for exchange to be able to go to school, which 647 The Republic of Liberia, Truth and Reconciliation Commission, Volume one, Preliminary Findings and Determinations, B. Summary of Findings and Determination, TRC Final Report (updated December 3, 2009), p. 50-53, http://trcofliberia.org 648 The Republic of Liberia, Truth and Reconciliation Commission, Volume one, Preliminary Findings and Determinations, B. Summary of Findings and Determination, TRC Final Report (updated December 3, 2009), p. 52-53; During the editing process of this book the Special Court for Sierra Leone found Charles Taylor guilty on 11 counts, including rape (as a crime against humanity), sexual slavery (as a crime against humanity) and the recruitment, enlistment and use of child soldiers, Special Court for Sierra Leone, Outreach and Public Affairs Office, Press Release, Freetown, Sierra Leone, 26 April 2012, Charles Taylor Convicted on all 11 counts; Sentencing Scheduled for 30 May. 649 The Republic of Liberia, Truth and Reconciliation Commission, Volume one, Preliminary Findings and Determinations, B. Summary of Findings and Determination, TRC Final Report (updated December 3, 2009), p. 48-50, para. 2 and para. 14, p. 4: Between 1989-1996 about 800.000 Liberians were displaced and between 19992003 an estimated 530.000 were displaced, p. 40 650 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 22 651 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 23

Armed Conflict, Transitional Justice and Children and Youth

before the wars was a reciprocal arrangement, has deteriorated after the wars with many children in these foster families being used as domestic workers and not being able to go to school and some being abused.652 At the same time the TRC reported that there was a very high increase in rural children being sent to urban families with about 20 per cent of all children not living with their parents in 1999/2000. In order to be able to best implement its mandate in relation to the children, the TRC in September 2006 signed a memorandum of understanding with 81 Child Protection Agencies, of which eight agencies established the Liberian National Child Protection Network and the TRC Task Force.653 The Network and the Task Force helped the TRC with awareness-raising, statement-taking and technical expertise in making sure that the mechanisms and procedures of the TRC as concerned all of its work on children were child-friendly. In December 2007 the TRC signed a project agreement with the UNICEF which set up the TRC Children Agenda Project which gave “the overall framework for the TRC’s efforts to achieve the participation and protection of children in the TRC process all across Liberia”.654 It was UNICEF that gave the main technical expertise and funding to the implementation of the mandate of the TRC concerning children. The TRC also worked with the Liberian Children’s Parliament, and for coordination purposes the TRC set up the TRC National Committee on Children (NCC) with the purpose of coordinating all the issues relating to children between the TRC and its partners, with the Commissioner Oumu Syllah having “the lead role” for children’s issues within the TRC.655 The TRC’s agenda with regards to its work on children and the supervision of how its work was implemented was the responsibility of the TRC Committee on Children. Some key principles with the purpose to provide guidance to the Commission in its work with the children as witnesses were developed together with UNICEF and they included:656 1. 2.

The participation of children in the TRC process shall be guided by the best interest of the child. The Children will be treated with dignity and respect. Any participation of children shall be voluntary on the basis of informed consent by subject children and guardian.

652 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 24 653 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 8-9 654 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 8-9 655 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 10 656 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 10-11

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3. 4.

5.

6.

7. 8.

The safety and security of all child statement givers is paramount. Statements can only be obtained in places considered safe and friendly to the child. Children must be in an appropriate psychosocial state to give statements. The taking of statements from children must ensure the protection of their physical, spiritual and psychological well-being. The confidentiality and anonymity of the child shall be guaranteed at all stages of the work of the TRC. All statements given by children shall be confidential; information obtained by the TRC shall not be shared with any outside body. In principle, statements shall be obtained on a one-by-one basis, with only the statement taker and the child present, except when the child wishes the presence of a social worker and/or guardian. Girls shall be interviewed by female TRC statement takers only. Psycho-social and other appropriate support services shall be available for child statement givers. All statements takers and designated social workers shall receive further training on taking statements from children.

The TRC was also to establish special mechanisms in order to be able to work with women and children victims as well as with perpetrators, with the purpose of both protecting their dignity and safety as well as to prevent re-traumatization.657 In doing so the TRC was to “take into account the security and other interests of victims and witnesses when appearing for hearing, design witness protection mechanisms on a case basis as well as special programs for children and women both as perpetrators and victims under burdens of trauma, stigmatization, neglect, shame, ostracization, threats, etc …”.658 In order to raise awareness of the work of the Commission as it pertained to children and to lessen concerns and ambiguity among the children and their parents about having the children participate in the work of the TRC, the TRC conducted an outreach campaign and had workshops in all of the15 counties’ capitals in the country between February 2007 and May 2008, where the children could ask questions and express their fears and expectations about the process.659 These workshops were attended by about 5,000 children and the TRC commissioners conducting the workshops promised the children to guarantee their best interests and protection during the work of the TRC. The children and their parents were told that the purpose of their statements was only to have a public record, that the TRC was not a court that could prosecute, and that the statements would enable the TRC to provide recommendations on what actions would be needed to 657 Section 24 of An Act establishing the Truth and Reconciliation Commission for Liberia, http://trcofliberia.org 658 Article VII of the Act establishing the Truth and Reconciliation Commission for Liberia 659 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 13-14

Armed Conflict, Transitional Justice and Children and Youth

implement to overcome “differences and achieve long-term peace, unity, justice and reconciliation”.660 Importantly through the workshops the TRC and its personnel got to know what kinds of war experiences the children had been going through, as well as the consequences from these experiences. The TRC conducted three regional hearings on children on 24 May 2008 in Gbargna, Bong County, on 5 July 2008 in Tubmanburg, Bomi County and on 19 September 2008 in Zwedru, Grand Gedeh County.661 These hearings addressed only children and their issues, and children from all over the country participated. The hearings were conducted in such a way that first there was a public hearing where both the TRC commissioners and the Liberian public were able to listen to the first-hand accounts of the children witnessing, with the commissioners being able to ask questions after each child had finished his/her statement. The children were testifying behind a screen and the public could not see the children, so that their identities were protected.662 During their testimony, the children were assisted by social workers and they had been told not to say their names or the names of their family members to keep their testimonies confidential. To protect their identity, the children had to walk into the buildings of the hearings in a separate entrance than the general public and even the commissioners, and they came to the hearings several hours prior to the others. After the children had given their testimonies, it was the children’s turn to ask the commissioners questions, an opportunity that was open to children members of the Children’s Parliament, the invited children to the hearings and school children from neighbouring community schools.663 Here the children talked about what they thought about and expected from the TRC, and “what the TRC might be able to do for the future of Liberian children”, such as its mandate, how the TRC differed from a court, how the TRC would use the statements given by the children as advocacy for the rights of children. At every regional hearing many hundreds of school children came as well as a few parents, caretakers and teachers, and the children were very positive and grateful to be able to have their voices heard.664 The TRC had invited to the three hearings 128 children who had been pre-selected as they had provided statements to it, and 32 of these children 660 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 14: In end the entire TRC for Liberia received 22.000 written statements, several dozens of personal interviews and more than 5000 live public witness testimonies, see p. vi. 661 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 14 662 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 15 663 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 15 664 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 15

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gave their testimonies at these regional hearings before the TRC and the general public, but at the question and answer sessions all could take part. From October 2006 to February 2008 the TRC received statements in all 15 counties from 280 child witnesses who were 17 years or younger which two TRC statement takers per each county collected.665 After each interview a CPA social worker met with the child to see to that the safety and psychosocial well-being of the child were protected. The TRC had been commissioning several expert studies on what consequences the wars had on the children in addition to the statements the children gave, and at a public hearing in Monrovia between 20–22 September 2008, 300 children, parents and school teachers were able to attend, and others such as governmental institutions and child protection agencies presented their findings from these studies.666 Also, included in the children’s agenda project of the TRC some children were invited to draw, paint and/or write about their memories of their experiences from the war, which were presented at the Children’s Art Gallery on 28 September 2008 in Monrovia, and these works of art are now part of the archives of the TRC. Finally, in May 2009 three regional consultations were arranged by the TRC where the stakeholders of the process attended with the purpose of discussing the TRC’s findings, and to draft recommendations that the TRC would consider including in its final report. Further between 15–19 June 2009 a five-day national conference was held in Monrovia where the results from the consultations in the counties were discussed and validated and a final document written, with recommendations to the government on how the lives of the children can be improved so that they will no longer be as abused as they were in the Liberian wars ranging from 1989–2003.667 A child-friendly version of the TRC report was to be produced. 13.8.1.1.

Children Being Directly Targeted

During the long-ranging conflicts children were deliberately targeted and killed and including because of their ethnicity (which they are well aware of today), and in some cases these ethnic killings were carried out in a ritual way. One such case was three ethnic Krahn children who in May 1990 were killed because of their ethnicity by NPFL rebels in Konola in the Margibi County who beheaded them, mutilated their corpses and took out their hearts and put these in a bag and then the rebels with a stick hit the bag.668 In another case, “General Butt Naked” told 665 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 16 666 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 16 667 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 18 668 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 33

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the TRC that he was responsible for killing himself around 20,000 persons and that the majority of these had been children, and clarified that the killing of children as opposed to the killing of adults was mostly carried out using witchcraft or by supernatural ways.669 No one was spared from the killings, and babies were in many instances specifically targeted and killed. For instances the NPFL killed many babies such as was described in a statement before the TRC: In my presence, the NPFL collected all the young babies and put them in the mortar and pounded them while these children were crying.670

In another statement before the TRC a witness told of a case in 1993 in Lofa County where a NPFL group under the commander General Musa “took all the young babies and children in a house and locked it. After that they put fire on the house with the children.”671 The longstanding conflicts in Liberia capture the total lack of awareness of human dignity and the value of life as one woman told the TRC about how soldiers in 1993 followed her family into hiding and killed her three month old baby: “[T]hey … took my three month old baby and threw him away.”672 Another woman told the TRC about how fighters had in 1995 entered her home: While I was looking, they killed my three years old daughter and they killed my brother and they killed my mother and while she was shouting my step mother came and they killed her too. I was pregnant at the time and they also killed my seven years old daughter and they said if I cry they will kill me. While two of my kids were crying and coming shouting don’t kill us they killed the two of them with an axe and there was an old woman and she said before they killed her she want to say her prayer and after that they killed her.673

Many women who were pregnant and the women’s unborn children were also deliberately and specifically targeted during the conflict and as was stated before the TRC by a 15-year old witness in May 2008 before the TRC Children Hearing in Bong County: 669 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 35: This figure has been contested by others. 670 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 34 671 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 33-34 672 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 35 673 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 35

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My mother’s little sister … was killed in Red Light, Monrovia. Her stomach was opened in my presence; at that time she was pregnant. We came from Red Light and we were going to our church … when this occurred. Th is took place during the MODEL war. The soldiers that committed the act were in soldiers’ army uniforms. They killed the woman for no reason.674

The total disconnect from being a human being with feelings that so many of the Liberian fighters showed during the course of the conflict was reflected in the following case that took place in Grand Bassa County in the beginning of the 1990s and that was brought up before the TRC: While in the village, two LPC soldiers started betting on one woman who was pregnant and said ‘that a boy [or] that girl?’ When the woman noticed that she was the one the two of them [were] betting on, she began with heavy cry, begging for mercy. They couldn’t listen to her. They collected that pregnant woman in my presence and lay her head [on] a log and cut her neck off … and split her stomach and took her baby out. The baby was a boy child. While arguing, the one who said the baby was a boy started telling his friend to pay him …675

In other cases babies and children were killed only because the combatants laid eyes on the child or that they were in the crossfire, such as when a toddler was killed in April 2003 in Lofa County by a LURD fighter, as told by the 12 year old sister before the TRC: We decided to cross to Guinea. While going, a LURD fighter came and grabbed my grandmother and cut off her finger … While crying … our last born … he was a crawling child … began to crawl to our mother. Just at that time a fighter of LURD shot the baby in his side and my little brother died instantly…676

On top of the deliberate killings of babies and children, children themselves were recruited to carry out the war of the adults and as one boy from Lofa County stated before the TRC: What I really experienced was that we, the children of Liberia, were used as killing machines to kill our own brothers, sisters and other family members.677 674 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 34 675 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 34 676 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 35 677 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 36

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Apart from the children that were abducted and forcibly recruited into the armed forces and the different armed groups, many other children were deliberately separated from their parents by the different armed groups, and many were not only separated but were being kept from ever reuniting with their parents again and thus disappeared. The following account given by a victim to the TRC in an interview in 2007 reflects this situation: One day in Bong while we were asleep, my sister and myself, the rebels came and put us all outside. They took away our children. One was five years old, the other was four and the other was just about two years old. The rebels put the children in the truck and asked us to walk … They took the children to one displaced camp and left them there … while walking we were captured by the LPC rebels and forced to go with them to Grand Gedeh. We were used as their wives all the time we were there … They never allowed us to leave. We used to be concerned about our children and we heard news that our children were in the camp. But when we told the LPC rebels that we wanted to go and get our children they refused and told us if we try to go they will kill us. So we were afraid. Since 1994 we have not seen our children and don’t know where they are, whether they are alive or dead.678

The author notes that the fact that some of the children that were taken from their parents were very young at the time of their separation means that they have no concept of who their parents are anymore nor are they in any way able to remember where they originally came from. From the parents’ perspective their children disappeared, and from the children’s perspective their parents disappeared, with all the confusion and anger that might have resulted in for the child, together with the deep-seated guilt and sadness of their parents. Elements of cannibalism were also present during the wars in Liberia and children were not spared from this as the following account shows concerning a young woman who was taken from her mother when she was three years old to go stay at Prince Johnson’s camp with another woman, and when the camp was attacked by an armed group she was abducted and: taken into the forest and used as a mascot, fed only on human flesh and urine. She had to hold down the pregnant women while they were being slaughtered, eat the heart as it was taken out and carry the special parts (breasts, vagina, penises, etc.) to the medicine pot for cooking. She was fingered while too young to be raped. She stayed with four different factions for ten years before being left to survive alone in the bush for more than a month, encountering leopards and other wild animals. At age 13 she was rescued and taken to safety.679 678 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 45 679 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 36

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The age group 15–24 years of age was the group that was mostly targeted for assault the TRC findings show, males and females alike, where females were targeted with specific assaults such as savage beatings, while males experienced more assaults.680 13.8.1.2.

Sexual Violence and Rape [T]here is overwhelming evidence that sexual abuse and rape during the conflict was predominantly targeted at girls and young women. Among all the violations reported to the TRC, rape affected most severely girls and young women, with the age groups between 5 and 19 years of age making up approximately 50 percent of all reported rape cases.681

All armed forces, government forces, affi liated militias, the Liberian National Police (LNP) and insurgent groups were sexually assaulting and raping girls, and they were raping girls from the age of being babies and up.682 Liberian rebels also raped women and girls in the Ivory Coast. An Amnesty International report from an IDP camp in 2003 which the TRC referred to showed that younger children were especially targeted as “[t]hey [the soldiers] like seven to 11 year olds” and “[s]ome can even rape a baby girl if they get the chance”.683 The TRC was also given several descriptions of rebels that came into the different towns with the only purpose to rape the very young girls who they “deliberately selected and separated” from the rest of their families and population. One such account was given to the TRC by a 25-year old woman who when she was 11 years old in 1993 was raped in such a way: [I]t was the 1st of August 1993 … [w]hen ULIMO fighters came here … [T]hey told us to form a line for inspection. We were more than 200 persons … [T]wo of the fighters came and asked us off the line. It was me and [another girl] from this town … That time I was just 11 and [she] was 10 years … He carried us in a house where their commanders were … They divided us among them … [T]he one took [the other girl] in a room and he and I left. He told me to take off my clothes. I refused. He started beating and punching my face while at the same time tearing my clothes. He began to put his penis in my vagina. I felt it seriously because it was the first time … He 680 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 35 681 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 47 682 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 47-48 683 Amnesty International, No impunity for rape-a war crime and crime against humanity, 2004, p. 8, see also The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 48

Armed Conflict, Transitional Justice and Children and Youth

spent two hours in me. When he got through, I bled and I could not even stand up … Everywhere in the town people were crying because the fighters were just raping teenage girls. It was not easy. They raped more than ten girls. Since that time, I can still feel pain in my stomach.684

Although there are no specific statistics, it seems that gang rape and multiple rape were indeed more prevalent then rape by an individual perpetrator alone, and this resulted in the death of many of especially the young girls who were physically destroyed and bled to death.685 One study by the International Rescue Committee which the TRC referred to showed that in 2003 60 per cent of all the rapes in Montserrado County were gang rapes, and that 40 per cent of all the rapes were conducted by individual perpetrators.686 One interview by the TRC with a child in 2007 reflects this situation: I, my mother and my sister were on a bush road around [Margibi County] during World Wars I and II…While my sister was easing herself in the bush a group of militia fighters spotted her. They were nine in number and so they went to my sister in the bush and raped her. When my mother heard my sister crying she hid herself in the bush to avoid being raped also. When they finished they came towards me and one of them wanted to take me away, but one said no let us leave the little girl to help her sister because we have really suffered her. My sister spent two weeks after that she died.687

As this examples shows the perpetrators wanted to hurt and injure the little child and they were very aware of what they were doing: “because we have really suffered her”; they did this with deliberate intent and should be punished for this crime, in the view of the author. To claim that they were under the influence of drugs and/or alcohol should not be an argument that should be accepted as they evidently were clear enough to know that she was a little girl, that they knew exactly what they were doing and with intent, and they knew that they had hurt and injured the little girl. Another statement given to the TRC again shows how young the girls were and that they died from the assaults as a result from them being children and the immense cruelty of the perpetrators:

684 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 48 685 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 49 686 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 49 687 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 49

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…The LPC came … in 1993 under the command of one General Kofi … and took my sister’s daughter … and carried her to the beach and raped her. She was about 10 years old and the soldiers that raped her were 20 in number. This rape act resulted to the death of [my daughter] on July 15, 1994, after being sick for some time … Whenever I think about this I want to cry.688

As the TRC stated “[n]o woman or girl child was spared and little girls were raped to death in front of their parents and siblings”.689 The following account was given to the TRC and showed the cruelty of the situation: Sixteen armed men jumped over the fence, burst the gate and came into our apartment. They took cell phones, money – everything. I had my children – my son, my daughter, my two nephews, and my nurse – with me. A boy with a hammer came towards me and said “this woman is for me”. He hit my head with the hammer. He pulled down my jeans in order to rape me. My little daughter started screaming. And the man grabbed my screaming child from my side and knocked her down and started raping her. He just grabbed her from me, raped her to death, and laid her to the side.690

As a result of the fact that the armed conflict went on for a long period of time many women and girls were also raped more than once by the various armed groups, just like the situation is for women and girls in the DRC and other conflict situations.691 Just like in for instance Sierra Leone and DRC, the different armed groups were abducting Liberian girls and young women and used them as “bush wives”, for forced marriage and/or held them in sexual slavery.692 The Liberian TRC described “bush wives” as being “i.e. attached by force or coercion to a commander or regular fighter, living a life of dependency, entirely at the mercy of the soldier’s whims”.693 A study from 2004 showed that “of all Liberian girls in Liberia that had been associated with the armed forces” about three quarters had

688 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 49-50 689 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 40 690 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 41 691 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 50 692 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 50-53 693 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 50

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been raped or otherwise sexually violated.694 As bush wives the girls were used as concubines, cooks, cleaners, became mothers, and were many times treated as commodities. In Liberia it was especially the higher-ranking commanders that “systematically abducted, abused and raped young girls”, which the interview with a young woman who was 12 years old at the time of her abduction and rapes in 1990 shows: The 1990 war broke out and … the rebels captured our area and put people in long queue on the road … The rebels’ commander …, a Special Forces of Charles Taylor, … killed my mother and cut her into pieces. He took me and my brothers … to [another country] where he raped me several times. There were about 25 children [that this commander] abducted … He had killed the parents of some of the children and he raped other girls among the children and used all of the children as forced labourers on his farm and at home.695

As in all post-conflict environments, Liberia being no exception, rape and sexual violence persists including domestic violence, at increased levels and with increased impunity, and a specific issue is “the large number of reported cases of raped children”.696 Many of these child rapes are committed by a belief that rape when committed as a ritual will increase the power and virility of the man.697 It shows that the harmful traditional practices that existed before and during the wars continue to be practiced and that there is an urgent need to address the beliefs underlying the practices. Furthermore, the fact that the majority of the perpetrators from the war have not been brought to justice also in a way shows an acceptance by the society that such acts are not to be considered criminal acts which they are. As a result of the sexual violence that was committed during the war a study showed that 68.5 per cent of the women surveyed after the war had one gynaecological problem at minimum, and that the biggest group was the age group from 19 to 24 years.698 The problems include chronic lower abdominal pain, infertility, abnormal vaginal discharge, abnormal vaginal bleeding, leaking urine or faeces, unwanted pregnancies, sexual dysfunction, genital laxity/tears and sexually

694 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 50 695 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 51 696 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 52 697 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 52 698 Isis-WICCE study in The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Confl ict, Volume 3, Title I, 2009, p. 53

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transmitted infections, genital sores, HIV/Aids and fistula.699 The women surveyed also suffered from psychological problems and substance abuse and about 80 per cent of the women had tried to commit suicide “at least once”. The need for proper health care is enormous, including mental health care, but due to destruction of health care facilities during the war and the limited number of health care personnel available, most women and girls are not treated for their gynaecological problems and these illnesses not being treated many times lead to debilitations, chronic disease and death.700 13.8.1.3.

Child Soldiers

All the armed groups in Liberia used child soldiers, and the TRC concluded that “a systematic and large-scale effort by all major armed groups to abduct and coerce or force children to enlisting to fight” had taken place in Liberia.701 The NPFL was the first group to systematically use child soldiers beginning in 1989 with their Small Boys Unit comprised of boys who had been forcibly recruited, and from that time all armed forces and groups used child soldiers.702 While no real statistics exist, it is still estimated that between 1989 and 1997 between 6,000 to 15,000 children were used as child soldiers, and it is clear that between 1999 and 2003, 11,780 children were formally demobilized of which 9,042 were boys and 2,738 were girls. But not all children who had been active as child soldiers were formally demobilized and instead between 15,000 and 21,000 children might have been child soldiers which could be a more accurate account.703 There was a pattern to the forced recruitment, it “was deliberate, widespread and systematic by all fighting factions”, in that either the children were captured by themselves or separated from their parents by force, and a typical such situation was explained in a statement to the TRC by a boy who was 13 years old at the time of his recruitment: I was actually abducted by a group of militias … of the government forces and taken to [a base near the frontline]. Without training I was armed. I was afraid to go on 699 Isis-WICCE study in The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Confl ict, Volume 3, Title I, 2009, p. 53 700 The Liberian Truth and Reconciliation Commission, The TRC’s Women and the Conflict, Volume 3, Title I, 2009, p. 53: As the TRC noted here: “Health personnel were themselves traumatized and injured during the war presenting with excessive alcohol consumption and frequent absconding from duty”, p. 53. 701 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 54 702 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 54 703 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 54

Armed Conflict, Transitional Justice and Children and Youth

the front because every day the LURD rebels were advancing and strong men were dying … One day a General … came and told all of us to go to the front. LURD was in Clara and Vai towns, we were in Waterside. Anyone who refused to go was shot in his head or body or toes or leg.704

The different armed forces and groups not only threatened the children with death if they did not come with them, they killed children in front of other children in order to get them to join them. As was explained to the TRC by an 18 year old who talked about his recruitment: In February 2003, LURD fighters captured [the town] where I lived … [W]e … saw ten LURD fighters. We were compelled to take arms. My friend Abu refused and the fighters cut his throat in my presence, so I accepted it …705

A “typical” abduction as analysed by the TRC was told by a 17 year old boy who was abducted at the age of 13 years by LURD: During the beginning of the rainy season in 2003, my family and I were captured … near Gbargna … It was the LURD rebels that captured us. They were more than 20 in number … [M]y brother … and I were beaten with gun butts … While we were with the rebels, we were forced to go on patrol with them and look for food and carry loads for them … Whenever they were going to attack, the government troops, my brother and I were forced to carry their ammunition … We remained with the rebels until the war was over in 2003.706

Also very young children were abducted to serve as labourers or sexual slaves, as a young woman explained to the TRC in a statement recounting her own experience: I was very small when the NPFL war hit my home … in Grand Gedeh County … I saw the rebels shooting in our town in 1990, the year the war broke out. Everybody ran in the bush and I was left behind. One of the rebels …captured me and brought me to [another town] to his brother … where I grew up and got married …[the former rebel] narrated the whole story to me, that I was captured … but that I was

704 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 54-55 705 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 55 706 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 44

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a Krahn girl from … Grand Gedeh … I am an orphan, no brother and sister. I don’t know my [real] name.707

A former girl child soldier who had been forcibly recruited by LURD and turned LURD commander explained in an account to Amnesty International in 2003 and referred to by the TRC that: I captured other girls and brought them back to Bomi. They did it to me so I had the intention of paying back. I captured nine girls, beat and tied them. I fought in Monrovia in June and July. Many of the girls died in the fighting…During World War I, I lost six girls mainly because they were not familiar with the area and were captured by government soldiers. In World War II, I lost two girls ‘face-to-face’ fighting. Some of the girls were ordered to cook and carry food to the front line and were killed at that time. Girls from 11 years old were captured and were part of my group. Even the small girls fought. The youngest in the camp is now 13 … I had 46 girls under my command.708

The reasons for joining an armed group in Liberia ranged from being captured, abducted, forcibly recruited, taking revenge for the death of a loved one, receiving protection, political motivations, nationalism, admiring the commanders and because of poverty and economic reasons. In Liberia the inequalities and poverty in the society were motivating factors for some children and youth to join armed forces and armed groups.709 The TRC referred to a World Bank report from 2004 which showed that “[y]ouths were riled by the inequities of the traditional system: ‘everything went by what [the elders] said, even when they were in the wrong’… Resentment at traditional leadership and its privileges picked up the issue of who takes part in community work: ‘if everyone has to work the chief should also’”, and furthermore the same report stated that “[T]he militia are ‘fed’ by the large number of young people in the interior no longer able (or willing) to integrate within a traditional social system based on family land and social deference. Where parents are deceased, or through poverty cannot give their children a start in life, militia membership is a major (if unstable) alternative to becoming an exploited rural client.”710

707 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 44 708 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 55-56 709 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009 710 See World Bank, Community Cohesion in Liberia, 2005 in The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 57

Armed Conflict, Transitional Justice and Children and Youth

The TRC asked the children who they interviewed what they believed were the root causes of the conflict, and many children said that a major cause was being at “disadvantage”.711 In one statement given to the TRC, a 17 year old said that “[d]isadvantage caused the war in Liberia. Some people want to pay back any wrong that is done to them”.712 The inequalities and disadvantages in the Liberian society also made some parents press their children to join an armed group, which was reported in a World Bank report from 2005 which quoted a female ex-combatant: “I joined the rebel forces to fight inequality in the country, and because of this issue I also encouraged my three children to join.”713 The TRC acknowledged that the dynamic of the war and violence generates more violence and destruction and that in this context “a radically changed environment shaped by the power of the gun” emerged and that this new social environment fundamentally impacted the situation and choices of the children and youth.714 Loss of parents or guardians, loss of family members, loss of their homes and being displaced all led to, as it does in so many conflict environments, to a breakdown of the traditional social network and family and community ties, and instead the different armed forces and armed groups stepped in creating “new social ties and hierarchies”.715 These new social ties and hierarchies were not consummate to the well-being of the child or their families, and as the TRC noted: Children, once inducted into armed groups, often had difficulties getting out of the fighting mode and leaving their new social context behind. They got used to feeling powerful with their guns and to imposing the rule of the gun on others, the strict hierarchy that left them dependent on their commanders, who had become surrogate parental figures, and their fellow young fighters, whom they saw as ersatz siblings.716

While the TRC for Liberia should be commended for its focus on children and for its account of the situation for the children before the wars and linking that to the utter vulnerability of the children during the wars, and its description of the actual experiences that the children went through especially from their own telling, and that this is a very good start for accounting for the lack of protection and 711

The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 57 712 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 57 713 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 57 714 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 58 715 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 59 716 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 59-60

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lack of respect for children’s rights and what needs to be done, the TRC report still comes across as tentative in its account of what the children actually went through. It is a good thing that the TRC identifies typical cases of what the children went through having either the same or similar experiences. However, it is telling that there is not so much Liberian actual statistics on either the children’s war experiences, or the number of children being recruited as child soldiers, and the fact that the TRC frequently makes reference to reports from different organizations such as the World Bank, Amnesty International and Human Rights Watch without confirming those reports with its own information or adding to them but rather just accepts them. It gives the impression that the Liberian government has limited knowledge about the situation for the children during the wars and that the government does not take the lead in or ownership of really getting to the bottom of what actually took place and how to improve the situation and ultimately guarantee the human rights of children. 13.8.1.4.

The Role of Children in Liberia Traditional child-rearing practices in Africa tend on balance to be antithetical to the interest of the child. They stress subjugation, subordination, corporal punishment and sometimes extreme forms of violence, rather than communication, dialogue and participation.717

Liberian statutory and customary law have not had the same age of majority, where maturity according to customary law has come with the onset of puberty which has been reflected for instance by the Hinterland Act where girls at the age of 14 years have been permitted to get married.718 In April 2009 the Liberian House of Representatives adopted the Children Act which is in full compliance with the CRC and where the legal age of majority for all children in all situations is 18 years of age. Children have traditionally been seen as resources for the family and community and not individuals with their own needs and rights, instead traditional practices like the payment of bride price and child labour have been very common and prevalent.719 In Liberia there has not been any state institution that has had the responsibility for the welfare of children, instead traditionally it has been the parents, extended family and community that were involved in the rearing of 717

African Child Policy Forum, 2008, The African Report on Child Wellbeing: How child-friendly are African governments? Addis Ababa: The African Child Policy Forum, p. 34, in The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 22 718 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 20 719 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 20

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children.720 Obedience and becoming productive members of the household were the prevailing traditional views of children, and the socialization of the children through traditional practices by traditional societies was the norm to ensure continuity.721 While the purpose of traditional practices has been the protection of children and giving them guidance, still the traditional societies “reinforce existing social hierarchies” where children have been at the bottom of the hierarchy and girls have been seen as inferior to boys.722 13.8.1.5.

Why Children Have Been Used as Soldiers in Liberia and Their Treatment

The reasons as to why children are being used as child soldiers vary, including that children are easily manipulated. The TRC for Liberia reported that the statements given to it gave the impression that other reasons for child recruitment by the different armed actors were that the children were fearless and were considered more brave than the adults were.723 As one child said in July 2008 at one of the Children’s Hearings of the TRC in Bong County: The reason why they can give the children the gun is because they feel the children can fight more than the big people and they can even kill their own parents and they can’t know what they are doing.724

Human Rights Watch (HRW) has reported that specific to the situation in Liberia is that “[c]hildren are very obedient; it’s a strong cultural trait in Liberia. The children don’t question their orders; they act out of blind obedience.”725 One child

720 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 20-21 721 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 21 722 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 21: Dr. Rev. Julius Nelson in an interview with the TRC on October 29 in 2007 said that: “In the socialization of children and young people in Liberia, the question of the Poro and Sande societies was meant to socialize boys on the one hand, and girls together on the other hand, as to the norms and values of our tradition/culture that will enable them to be productive citizens of that community as the grow up in society.” 723 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 60 724 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 60 725 Human Rights Watch, Easy Prey: Child Soldiers in Liberia, September 8, 1994 referred to by the Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 60

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protection officer explained with regards to the Liberian situation in the same HRW report that: I think they use kids because the kids don’t understand the risks. And children are easier to control and manipulate. If the commanding officer tells a child to do something, he does it. In this society, children are raised to follow instructions

And furthermore that: Children have no responsibilities at home; adults worry about their families while at the battlefront children don’t. They are easily programmed to think of war and only war. So it’s easy for the factions to involve them. They are easy prey.726

One former child soldier said to the TRC that [t]hey forced us to take up arms and they gave us drugs and they will send us in front and when there is no way they will follow”.727 Another former child soldier who had been recruited forcibly by LURD in 2002 stated that “they cut our hair and took us to beer factory and forced us to hold gun and they taught us to shoot, they said if we refused they will kill us”.728 An experience that many child soldiers shared is exemplified by a discussion between an 18 year old former child soldier, who was 13 years of age at the time of his forcible recruitment by LURD, and the TRC in September 2008: TRC: “Where did you go to fight? Witness: In [town in Lofa County] TRC: Were there girls when they trained you? Witness: Yes there were 20 boys and 12 girls TRC: What was the training like? Witness: We used to be singing and jogging and they used to be beating us with the iron because they say we were not jogging. TRC: Did anybody die at the base? Witness: Yes three boys, they beat them and they died.”

The children were trained with the adults and as if they were adults, with the exception of all-children’s units like the Small Boys Unit of NPFL, and the training was “infrequent, hardly systematic and arbitrary” and the children lived under

726 Referred to in the Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 60-61 727 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 61 728 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 61

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the threat of being punished at all times.729 A former child soldier who had been 12 when LURD forcibly recruited him said that he had been given a gun which he needed to learn how to handle and for which he was not big enough being a child: [T]he gun they gave me I can’t shoot it and it was just dragging on the ground. So my brother’s friend said he will teach me how to shoot it. We used to go in the bush and he was teaching me how to shoot at birds.730

As the TRC commented, in terms of how the children should be treated while with the armed forces or groups there were no ethical guidelines available or even thought of, and the treatment and punishment of the children was totally arbitrary and depending upon the individual. Further, the TRC stated about the situation for the different child soldiers that: coercion, violence and abuse were not only used at recruitment, but marked the entire experience of children associated with the armed forces. Commanders expected unflinching loyalty and violations of internal rules were severely punished, usually through physical abuse such as arduous exercise such as push-ups and “pump-tire (knee bends) until the day ends”, beatings, floggings and other forms of corporal punishment. The physical abuse was not only a main instrument to instill discipline in the young recruits, it was also meant to make children tougher in battle and increase the fighters’ general “wickedness” or fierceness.731

The TRC also reported that the physical punishment and abuse that the children were exposed to by the different armed groups in some cases constituted torture, and that “[t]orture was thus systematically used against children to compel their compliance or conformity as to the rules, whims and caprices of their commanders or groups. It made them to become obedient or risk a continuous punishment or sudden death for violating a rule or an order.”732 The torture included hanging children upside down on a rope for a long period of time, dragging a person behind a car, forcing a child to undress himself and walk naked around town, and tying the two arms of a person behind his back until the two elbows touched

729 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 62 730 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 62 731 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 62-63 732 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 63

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which was called ‘tabay’.733 Inevitably sometimes children died as a result of the physical punishment and torture. In the Liberian conflicts drug use was very common and all armed groups used drugs such as marijuana, opiates, cocaine, alcohol and different unknown tablets and local concoctions of the named drugs or amphetamines.734 The reasons as to why child soldiers were given drugs varied from as a means to endure more, lessening pain, to make the children feel fearless and be inhibited and for protection from bullets and many times traditional and spiritual healers provided them with drugs.735 One former child soldier stated in an interview with the TRC in 2007 that: As a child in the armed struggle we were compelled to drink alcohol and smoke marijuana, cocaine and dugee. When we smoked these, absolutely, we will do whatever we are ordered to do whether it is good or bad; that is we have to eliminate you … [T]he things you do you cannot go because we are under the influence of drugs … so that we can be strong because we were depended upon to fight. They sent us ahead to fight because we don’t know what we are actually doing. The older ones will stay behind.736

Another former child soldier said to the TRC in a statement that he was 11 years old when he in 2003 became a member of MODEL after his father had been killed by the government forces: The fighters accused him [my father] of being a spy. They tied and beat him continuously … When the MODEL group attacked, the government forces killed my father before retreating … Out of frustration I did join the MODEL group. General Pepper was the commander … After joining them, I went at the front only one time. After taking in some drugs which they gave me, I bravely stabbed an enemy fighter with a knife …737

The TRC for Liberia considered the issue that most of the combatant child soldiers had committed atrocities themselves, such as lootings, forced displacement, 733 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 63 734 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 64 735 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 64: the TRC also referring to HRW, 2004, How to Fight, How to Kill: Child Soldiers in Liberia, p. 28-29 736 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 64 737 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 65

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forced labour, murder and killings, and rape, citing a statement given to it by a former child soldier who was 13 years old when LURD forcibly recruited him: During 2003 while displaced in one of the camps near Monrovia, the LURD fighters entered with heavy shooting … I was caught along with three other boys. We were taken to [another IDP camp] and given AK-47 rifles to fight. My first encounter was with the government forces when the LURD forces launched an attack. Me and the other fighters exchanged fire. After the firing became heavy, I managed to escape to the swamp. I noticed that one of our men was dead; besides I saw an elderly woman [who had] dropped dead in the swamp from stray bullets. Most of the time, before leaving for the front line, we took drugs and harsh drinks to keep me numb so that I can’t feel that anything is happening. There were times when I killed people on my way or looted their food stuff because I was hungry. Our commander … never one day gave us any supplies of food or medicine. During World War II, in 2003, LURD forces controlled [a large area just outside Monrovia]. On that Saturday evening, I along with the other fighters of LURD attacked the position of the government forces. While fighting, we used mortars, grenades, AK-47s and AK-60s and we seriously engaged them … [O]n the government forces’ [side] about 15 persons died … [I]n World War III after the attack there was no food to eat. We the fighters, about 16 in number, went to [a nearby town] … At night we entered the town and looted farina, fufu, pepper, meat and fish and we forced the civilians to take the load to [our] camp.738

Some children received promotions and as a result they got child soldiers under their command, whom they treated the way they had been treated, and as a 17 year old former child soldier, who had been 13 years when he was promoted to be the commander of ten boys who were looting villages and towns, testified before the TRC in September 2008 saying: “I used to punish them and they never used to eat the whole day.”739 13.8.1.6.

Accountability for the Crimes Committed by the Child Soldiers

The TRC for Liberia in relation to whether children who have committed crimes as child soldiers should be prosecuted or not refers to the practice of the ad hoc criminal tribunals of former Yugoslavia, Rwanda and Sierra Leone which have chosen not to prosecute children and focus only on those who have had the greatest responsibility for the atrocities committed during the armed confl ict. It also refers to the ICC and its Rome Statute which states in its Article 26 that the ICC has no jurisdiction over those who are under 18 years of age when a crime under 738 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 66 739 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 66

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its jurisdiction has been committed.740 As a result in its determinations in its final report the TRC stipulates first that “[g]eneral amnesty for children is desirable and appropriate. Amnesty for crimes lesser than gross violations is also desirable and in certain circumstances appropriate to foster national healing and reconciliation.”741 However, in its final recommendations in its report on children the TRC came to the conclusion that: [c]hildren were among the main victims of the Liberian confl ict. They were forced to participate in fighting and to commit grave human rights violations under the direction of their commanders. Refusing to take part in hostilities was not an option for children. Therefore, children under the age of 18 do not have any criminal responsibility for their actions and they cannot be held accountable for crimes committed under international human rights or international humanitarian law. Since children are not considered to be responsible for gross human rights violations and serious violations of humanitarian law, there can be no amnesty extended to children.742

That accountability for committed crimes is a complex issue is reflected by that many former child soldiers told the Liberian TRC that they wanted “some form of local reconciliation and processes of forgiveness for the wrongs they know they have committed during the war”.743 Many of them were regretful and remorseful and said that they had wanted their families and communities to acknowledge their feelings. At the same time the children did not expect to face any criminal prosecution nor be given amnesty, because to be amnestied would mean that the children had actually committed crimes.744 In terms of accountability and criminal responsibility for the armed groups, the TRC in its recommendations did not talk about individual responsibility but rather the responsibility of armed groups as the TRC recommended that: [a]rmed groups in the Liberian wars and those who directed their actions deliberately targeted children and were responsible for the following gross human rights 740 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 67 741 The Republic of Liberia, Truth and Reconciliation Commission, Volume one, Preliminary Findings and Determinations, B. Summary of Findings and Determinations, TRC Final Report (updated December 3, 2009), Determinations, p. 6, para. 6, www.trcofliberia.org 742 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 7. Recommendations, 2009, p. 105 743 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 98 744 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 98

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violations and serious violations of international humanitarian law directed against children: extrajudicial killings and mass killings, forced recruitment, torture, rape, multiple and gang rape, sexual slavery, and forced marriage, need to be brought to account to give children a sense of justice and to remedy the sense of betrayal children feel toward the adults who exploited and abused them during the war.745

Over 50 per cent of the population today in Liberia is children.746 The legal framework for child protection and child welfare has been improved in Liberia after the conflicts including the Rape Law of 2006, the President making commitments that free primary education to all children will be provided, the Domestic Relations Law which deals with adoptions, the Children’s Parliament being reliven, and the drafted Children’s Law.747 But at the same time, the Liberian government has not prioritized issues concerning children and has not exhibited leadership on developing a child protection strategy that would address the issues related to the war that most children are dealing with, which the 2008 African Report on Child Wellbeing clearly showed.748 The 2008 African Report on Child Wellbeing listed Liberia as one of Africa’s “least child-friendly” countries, at the 47th place among 52 African countries.749 As the report stated “the poor performance or low score of the ‘least child-friendly’ governments is the result of the actions taken by their governments – or lack thereof – and the outcomes in terms of the wellbeing of children in their respective countries”.750 As the TRC states the Liberian Ministry of Gender and Development and the Ministry of Health and Social Welfare’s Social Welfare Division are to look after the well-being of children, and these state institutions are “extremely weak” as they lack resources and personnel.751 There is really no monitoring of violations of children’s rights by neither state institutions nor NGOs that could hold the government accountable. The Liberian National Police has established a Women and Children Protection Section, and one juvenile court has been established in Monrovia, but there is

745 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 7. Recommendations, 2009, p. 105 746 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 70 747 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 98 748 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 98 749 In the Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99 750 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99 751 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99

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one juvenile judge alone for the whole country, and the magistrate courts do not know much about issues related to child protection.752 Children also told the TRC that they had not received enough medical care for their war injuries, and as a result these injuries were continuously painful.753 Health issues such as stunting among many children and the children having both physical and mental development problems are the result of the war and ensuing depravation, malnutrition and displacement.754 Children’s vaccinations have gone down during and after the war, and even as polio was believed to have disappeared, polio has returned. Because of the widespread sexual violence against girls during the war, the health of the girls has declined and they have many both physical and mental problems as a result. The teenage pregnancy rate in post-conflict Liberia is “extremely high”, where about 48 per cent of the women become pregnant prior to the age of 18 years.755 A governmental study showed that pregnant adolescent girls have a significant higher HIV infection rate of 5.7 per cent compared to the population in general where the rate is at 1.7 per cent.756 Especially for the children who are suffering from trauma, for the children who do not have any support from their families and for those children who are in conflict with the law very limited child welfare services are available.757 The TRC in its recommendations acknowledged that children who suffer from severe trauma are in need of specialist treatment, and that even as there is a very limited capacity currently in Liberia to provide psychological and psychiatric assistance, the government should seek resources for programs specializing in children who suffer from severe trauma and depression.758 This became clear after the many testimonies from children the TRC was given about how they continued to suffer from long-term trauma such as having recurrent nightmares, difficulties concentrating or feeling generally distressed.759 It needs to be reminded that the war

752 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99 753 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99 754 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 99 755 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 79 756 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 79 757 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 101 758 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, Recommendations, 2009, p. 110 759 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, Recommendations, 2009, p. 110

Armed Conflict, Transitional Justice and Children and Youth

ended in 2003 and the final report with the recommendations was published in December 2009. As a result of years of war, widespread poverty and the breakdown of families and communities have led to an increase of child labour and street children. Furthermore, the Liberian long-held practice of rural parents sending their children to relatives or acquaintances in the urban areas has developed into the children instead being abused by their foster families which in turn in many cases leads to that children become street children or being trafficked.760 Today in Liberia the TRC reported that “a small industry of false orphanages and commercial adoptions has developed in Liberia, with hundreds of non-orphaned children being kept in orphanages and being sold” without their parents knowing about this.761 The TRC noted that girls are “routinely trafficked out of Liberia” for work or marriage and are sexually abused both contracting and then infecting others with sexually transmitted diseases and HIV/Aids.762 Many civilians saw the cash payments to the demobilized combatants including the children as a reward for them having taken up the arms, and leading to much resentment towards the children.763 However, the children the TRC interviewed and who gave statements before the TRC expected to be given reparations for the suffering they have endured, making up for their lost opportunities and to give them real help to rebuild their lives.764 The TRC agreed and stated in its findings that “[a] form of both individual and community reparations is desirable to promote justice and genuine reconciliation,” and determined that “[r]eparation is a desirable and appropriate mechanism to redress the gross violations of human rights and shall apply to communities and individuals, especially women and children, to help restore their human dignity, foster healing and closure as well as justice and genuine reconciliation”.765 That ethnicity was one factor in the violence against children was acknowledged by the TRC which found that “[c]hildren were also targeted by members of armed groups for belonging to particular ethnic groups in the commission of violations of international law. In particular in the early 1990s, and to a lesser de760 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 101 761 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 101 762 The Liberian Truth and Reconciliation Commission, Women and the Conflict, Volume 3, Title I, 2009, p. 54 763 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 72 764 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 98 765 The Liberian Truth and Reconciliation Commission, Volume one, Preliminary Findings and Determinations, B. Summary of Findings and Determination, TRC Final Report (updated December 3, 2009), 2009, p. 4 and 6, www.trcofl iberia.org

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gree between 1999 and 2003, children from the Gio and Mano groups on the one hand, and the Mandingo and Krahn ethnic groups on the other, were specifically targeted in killings by armed groups representing ethnic interests.”766 That the pre-existing conditions, the economic and social conditions, in the Liberian society played a role in the war and were some of the causes of the war and one reason to become a member of an armed group was one finding of the TRC: “Many children found themselves in vulnerable situations due to the extreme socio-economic, urban-rural, and ethnic inequalities in Liberian society. Educational opportunities and opportunities for social mobility have always been limited largely to urban areas and to children from privileged groups. Having been ‘disadvantaged’ was a common reason children mentioned as a root cause of the conflict, and for some a motivation to join armed groups.”767 The TRC went as far as to claim in this regard that: “Liberia as a nation has not invested the necessary resources in its children in many decades. Many children feel that they are inferior citizens. They feel abandoned, betrayed, and abused by adults. The TRC found a clear desire among many children who have been victimized by the war to bring those who caused their suffering to justice.”768 The children recognized that accountability by adults for the manipulation, use, abuse of them and the violations committed against them was necessary. 13.8.1.7.

Education in Liberia

Because of the war a whole generation of Liberia’s children and young people either never received an education or had their education disrupted by the war, and as a result it is very common today for 16 to 18 years old adolescents to attend first or second grade schooling.769 After the war due to the devastation and widespread ensuing poverty many young people need to both financially support their families and their own schooling, which leads to a situation where many do not go to school. Before the war access to schooling was very limited for especially the children living in the rural areas, and especially girls were excluded from going to school. About 35 per cent of Liberia’s total population and about 44 per cent of the total female population have never been to school, and the illiteracy rate for the

766 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 97 767 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 97 768 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 97 769 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 80

Armed Conflict, Transitional Justice and Children and Youth

whole population is about 56 per cent.770 The illiteracy rate for children and young adults is 68 per cent, with 55 per cent for boys/men and 81 per cent for girls/ women. The schools are sub-standard where 45 per cent of the country’s schools in 2008 had an adequate standard conducive to a proper learning environment, with 22 per cent of the government run schools having benches, and where merely onthird of all the public schools had latrines and toilets that worked.771 On average about 27 students share one textbook. With regards to access to education and equipment there is “a significant urban-rural divide”, where the schools in the urban areas have a much better standard than the rural public schools. In the post-conflict era the government has been rebuilding many schools after 2003 and equipped them with about 13,000 benches and desks and introduced the Free and Compulsory Education Policy which made education in public primary schools free of charge, and the tuition fees for secondary schools have been reduced.772 This has resulted in an increase of enrolment in primary school with 597,316 students in 2005/2006 to 1,087,257 students in 2007/2008, and for secondary school enrolment with 132,224 to 153,467.773 The government has also introduced adult literacy and Accelerated Learning Programs in order to give people an opportunity to gain basic literacy and numeracy skills, and “to catch up on primary education”.774 But, problems persist and merely 37.3 per cent of all eligible children attend primary school, and about 15 per cent of all eligible children attend secondary school.775 The girls are enrolling in primary school almost at the rate of boys, but boys are still at a much higher rate enrolling in secondary school. In addition there are significant regional and urban-rural differences, where in the capital Monrovia region about 50 per cent of the children are enrolled in primary school, while in the country’s central and southeast areas merely about 26–46 per cent are enrolled.776

770 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 771 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 772 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 773 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 774 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 775 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 81 776 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 82

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Importantly poverty and household income are major reasons as to why many children do not attend school, where of the poorest fift h of the population merely about 23 per cent are enrolled at the primary school level, compared to 66 per cent of the wealthiest fi ft h of the population.777 At the secondary school level, of the children from the poorest households merely 4.5 per cent are enrolled, while such enrolment for the children of wealthiest top fift h households is 38 per cent. In Liberia the quality of education is very poor, and this needs to be seen in the context that about 41 per cent of the teachers have no high school diplomas.778 No more than one-fourth to one-sixth of the teachers in primary and secondary schools are women. The Liberian educational system is also struggling with “mismanagement, corruption and abuse”, including that school materiel that is supposed to be given to the students is instead sold at a profit, teachers in exchange for giving passing grades for tests or classes or handing out grade sheets require to be paid or to be given specific services, teachers demand to be paid for school “packets” which include course material that has been printed or copied, and secondary school level male teachers sexually abuse the girl students and require sex in exchange for passing exams or grades.779 The TRC made the conclusion that “the current generation of young Liberians is actually significantly less educated than the previous generation”, and the Liberian 2008 Poverty Reduction Strategy stipulates that “Liberia’s young people lack the necessary tools to make productive contributions to the social and economic development of the nation”.780 13.8.1.8.

“General Butt Naked” The priest stands before an altar, naked. The elders bring a little girl, unclothe her and smear her body with clay. The priest slays the child. In a ritual that spans three days, her heart and other body parts are removed and eaten. In the course of those days the priest has a vision: he meets the devil who tells him he will become a great warrior. The devil says to increase his power he must continue the rituals of child sacrifice and cannibalism. The initiation is complete and the priest is now one of the most powerful leaders in West Africa. The priest is 11

777 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 82 778 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 82 779 Harvard Law School Human Rights Program, International Human Rights Clinic, 2009, Eliminating and Accounting for Abuses in Liberia’s Education Sector (Draft), Cambridge, MA, in The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 82-83 780 The Liberian Truth and Reconciliation Commission, The TRC’s Children’s Agenda, Volume 3, Title II, 2009, p. 83

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years old. As prophesied, the boy priest grew up to become one of Liberia’s most notorious warlords: General Butt Naked.781

The above true story was the first time the then eleven years old boy who would become the notorious “General Butt Naked” killed somebody, while in the 14 year old war he claimed before Liberia’s Truth and Reconciliation Commission in 2008 that he and his group of boys and men killed 20,000 people dressed in boots and machine guns but otherwise naked (the number is disputed: Liberia’s Information Minister Norris Tweah says “How can he know”… Two hundred and fift y thousand people were killed in the 14-year-old war. He is using this to make himself sound like a great warlord.”782 During the civil war in Liberia he and his group committed child sacrifice and cannibalism, used child soldiers, and were trading in blood diamonds in exchange for guns and cocaine (cocaine that he gave to the child soldiers including nine year olds). In this context the Liberian TRC had “called for a pardon for him because of him telling the truth”. Today Joshua Milton Blahyi, “General Butt Naked”, who claims he has been reformed, has become a pastor, is a married man with three children and works as a Christian preacher. He advocates for an end to the tribal religious practice of child sacrifice and cannibalism which he means still continues in secrecy in Liberia. He says that “[s]ince my conversion, I know witchcraft is wrong. I know ‘eating’ is wrong. I must speak out now.” In an interview in late 2010 he describes his childhood explaining that his father was the first to tell him that he was born to be a warrior, and that tribal elders ordered that he would be conceived and that he would be taken from his mother just minutes after birth which he was. His father gave him over to the elders when he was seven years old for them to teach him the rituals of priesthood. After his initiation at 11 years as the high priest, every tribesman began to bow to him as he had become a powerful person. Also at the age of 11 years in 1982 Blahyi at the presidential palace carried out black magic rituals as a form of protection from enemies of the then President Samuel Doe, who also came from the Krahn tribe just like Blahyi did. Carrying out sacrifice rituals and cannibalism were some of his most important tasks as a high priest. As a priest, he says, he would have a vision about a chosen child. He would tell the elders the child’s village, the family name, and certain secrets of that child known only to the family. The elders would then lead the procession to the child’s house, 781 Fernandes, Edna, Face to Face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html 782 Fernandes, Edna, Face to face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html: Everything in this section on General Butt Naked is taken from this article.

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known as ‘the House of Honour.’ The child would often remain oblivious until the moment came where he was taken away from the village to the altar, where he would be stripped and covered in a type of mud. ‘As a priest, I said the invocation. The child is killed. His body has different parts taken off ’ … ‘I was the only one with the body’.783

When he was the tribal priest, “the rituals were for the good of the tribe”, however as the leader for the Butt Naked Brigade the child sacrifices which he carried out before every battle and the cannibalism had “no religious significance for his tribe”. The reason behind the child sacrifices before every battle was that the soldiers would be strengthened and purified as a preparation for the battle by having a child killed and then eaten. As many of the members of the Butt Naked Brigade were child soldiers, these children had to eat other children and were exposed to the danger of being sacrificed themselves. Blahyi did not say how many battles a child had been sacrificed for. The Butt Naked Brigade traded gold and diamonds for weapons and cocaine that the Mexican drugs cartels provided (as they used the Liberian coastline as a drop-off point), and Blahyi said that he gave the cocaine to the boys from the age of nine years and “mashed it into their food”. The Butt Naked Brigade had its naked dress code in order to install fear and terror in people, and it proved to be a very “effective military tactic”, and as Blahyi explains “[t]he fear principle was behind it. The first thing you want to impose on the enemy is that you’re an animal, not a guerrilla.”784 Blahyi says that a turning point for him came personally with regards to child sacrifice and killings during the summer of 1996 when he and his clansmen during a battle made the decision that a sacrifice had to be carried out involving a three year old girl brought by her mother. He explains: “The child was very unusually beautiful and kind. Most of the children are brought to me by elders, they are crying, they’re fighting. This child was peaceful.” He further recalls: “I thought, this child must not die. I struggled … Of all of the thousands that I killed, I wish I did not kill that little girl … Right after killing her, I had my epiphany.”785 As a result he stopped carrying out the killings, sacrifices and cannibalism, and eventually “left the Butt Naked Brigade” and was baptized in September of 1996. To talk about his life as a high priest and a warrior is painful 783 Fernandes, Edna, Face to face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html 784 Fernandes, Edna, Face to face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html 785 Fernandes, Edna, Face to face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html

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for Blahyi and those around him, and after his confession at the TRC in 2008 there have been assassination attempts on his life, and his wife and children live in Ghana in hiding. Now he says that his greatest fear is to lose his children, “an irony not lost on him”. He has established a rehabilitation centre for the former child soldiers outside of Monrovia, and he claims that he would go to the ICC to be tried for war crimes if that would be the case. However, many in Liberia cannot forget his violent past and see him as “the murderous General and cannibal”, and as the reporter interviewing him explained they could not be seen in public places or be seen eating together.786 Here witchcraft, child rituals and traditional harmful practices intertwine with violence and war, and the view of the role of the child in society and the rights of the child to be free from harm, linkages that have been a neglected area of research and where much more attention needs to take place. 13.9.

Transitional Justice for Children in Peru and Colombia

The transitional justice processes in Colombia and Peru have been conducted in two different contexts where in Colombia the armed conflict is on-going, while in Peru the transitional justice process began after the Shining Path (PCP-SL) and MRTA (Movimiento Revolucionario Tupac Amaru) had been defeated, as well with the stepping down of the then President Fujimore and the appointment of a transitional government in November 2000.787 As a result Peru re-recognized the jurisdiction of the Inter-American Court of Human Rights and ratified the Rome Statute of the ICC and established a Truth and Reconciliation Commission in 2001. National courts in both Peru and Colombia are able to directly apply international human rights treaties as they are part of their respective Constitutions, which Herencia Carrasco argues could have considerable consequences for how the national courts interpret the rights of the most vulnerable groups in these countries that belong to the majority of the victims of human rights violations, such as children, women and the indigenous peoples.788 The Inter-American Court of Human Rights has in this context decided that any national judicial

786 Fernandes, Edna, Face to face with General Butt Naked ‘the most evil man in the world’, The Mail on Sunday, 28 November, 2010, http://www.dailymail.co.uk/news/ article-1333465/Liberias-General-Butt-Naked-the evil-man-world.html 787 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 2 788 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 1

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proceeding concerning human rights has to follow the American Convention on Human Rights.789 Herencia Carrasco means that the policies the Colombian and Peruvian governments have so far implemented with regards to the children affected by the armed conflicts and violence have been more reactive than preventive, in that these policies and programmes have not been designed in an integrated fashion excluding for instance the socio-economic consequences for these children.790 Nor has enough resources been allocated or institutional support been established to address the real needs of these children, while specific programmes targeting the internally displaced population including children and child soldiering have been created. Herencia Carrasco has created a summary of the two different transitional justice frameworks in Colombia and Peru which will be used here:791 Table 1 summarizes the transitional justice framework for Colombia and Peru:

Judicial Measures Non-judicial Measures

Oversight

Colombia Peru – Constitutional Court – Constitutional Tribunal – Justice and Peace Law system – Sala Penal Nacional – Supreme Court of Justice – Supreme Court of Justice – National Commission on – TRC: Final report published Reparation and Reconciliation August 2003 – Reparation programme established – National Reparation Council Under Law 286 (1995) – Psychosocial attention to victims – Administrative reparations under – Adoption of National Human Decree 1290 of 2008 Rights Plan (December 2005) – DDR and social programmes Rulings of the Inter-American Court of Human Rights and oversight by United Nations agencies.

789 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 1 790 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 1-2 791 This table is taken from Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 3. Footnotes omitted

Armed Conflict, Transitional Justice and Children and Youth

In Peru those individuals who are accused of having committed terrorist activities and/or grave human rights violations are being prosecuted by the Sala Penal Nacional.792 Some of the measures of Colombia’s transitional justice process that have been adopted or attained are:793 (i) (ii) (iii) (iv)

The Justice and Peace Law; A National Commission on Reparation and Reconciliation; Demobilization of paramilitary groups; Implementation of disarmament, demobilization and reintegration (DDR) programmes.

The mandate of the Colombian National Commission on Reparation and Reconciliation under the Justice and Peace Law is to:794 (i)

recommend the implementation of an institutional programme of collective reparations; (ii) assure the victims’ participation in judicial proceedings; (iii) present a report regarding the origin of illegal armed groups and their activities; (iv) verify the reincorporation of demobilized members of illegal armed groups.

The main components of the mandate of Peru’s Truth and Reconciliation Commission were to:795 (i)

analyse the social, economic and political conditions that gave rise to the conflict; (ii) contribute to the establishment of the truth regarding the crimes committed by all parties involved; (iii) establish a reparation programme for victims.

792 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, footnote 10, p. 3 793 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 2 794 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, footnote 8, p. 3 795 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 2

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In both countries the transitional justice process has been held back by insufficient resources and political divisions, however all the discussions about and the actual establishment of the transitional justice measures have had the effect of putting human rights onto the political agenda in both countries, and have highlighted the value of dealing with the linkages between truth and reconciliation and peace.796 The situation for children during the armed conflicts has been more visible in Colombia than in Peru, some reasons being that Peru during the 1980s had not ratified many human rights treaties except for the 1959 UN Declaration on the Rights of the Child, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which were very little known or applied.797 Furthermore, the situation for children has not been a priority issue in either country. In Peru the report by the TRC in 2003 led to greater awareness about the actual magnitude of the conflict, and the value of institutional changes, collective reparation, the adoption of the National Human Rights Plan and DDR programmes were highlighted.798 With regards to the crimes committed against the children during the conflict a continuous challenge in Peru is “how to apply international law to a situation that took place before human rights and international humanitarian law obligations were in force”, and this concerns in particular reparations.799 In Colombia the realization among the officials and the public of the actual situation for the internally displaced persons, including that more than 50 per cent of the IDPs are children, together with the on-going forcible recruitment of children have made the situation for children visible, and the challenge there is “how to overcome a turbulent present and how to apply effective reintegration and reparation programmes”.800 Carrasco means that despite the many differences between the two countries, they still have four characteristics in common with regards to the armed 796 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 4 797 Colombia got a new constitution in 1991 and Peru in 1993, Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 4 798 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 4 799 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 4 800 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 4

Armed Conflict, Transitional Justice and Children and Youth

conflict and transitional justice process: “the conflicts originated in an ideological struggle for power, not a struggle based on race, ethnicity or religion; these conflicts are or were between a national government and illegal armed groups in state territory; with few temporary exceptions, governments have maintained control of the territory; the situation of children has not been dealt with as an integral part of a transitional process but has been addressed through specific issues, such as the situation of children associated with armed forces, or internally displaced persons”.801 Importantly, Carrasco argues that the situation for the children during the armed conflict in Peru became visible through the report by the TRC even as the children could not take part in its hearings, and that a framework was created for the prosecution of crimes against humanity and how to address the issue of reparation by the conclusions and recommendations issued by the TRC, which however were not binding.802 The Peruvian TRC referred to the CRC as the minimum standard and applied the Convention’s terminology to its section on violence against children, and stated that the CRC “should be applied along with other international human rights conventions”, and the Optional Protocol on children in armed conflict “became the legal framework for analyzing the responsibilities of all parties in the conflict regarding the recruitment of children”.803 In Peru during the conflict when the human rights violations took place many human rights and international criminal law treaties were not in force, and this is the reason as to why today there is a discussion in Peru on how these laws can retroactively be applied while not “violating the law and constitutionally pledged rights”.804 The Peruvian judiciary addresses this situation by using a case-by-case approach. Colombia’s TRC had issued one report as of June 2010, however it did not address the situation for children.805 801 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 3 802 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 5-6 803 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 5 804 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 6 805 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 5

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The main challenges to the transitional processes in Colombia and Peru are the issues of reparations and non-repetition measures to victims including children.806 With regards to Peru attempts to follow-up on the recommendations issued by the TRC have been conducted by the Ombudsperson and the Reparation Council (Consejo de Reparaciones), however lack of political will and resources have resulted in that institutional and pecuniary measures to compensate victims have been limited.807 For instance, because of insufficient resources the registration of victims including children by the Reparation Council (Registro Único de Víctimas) has stopped. Despite the structural inequalities in Peru with the gap between rich and poor still existing and the victims “treated as second-class citizens”, some basic health care and education services for the poor have been improved.808 Carrasco means that social investment in those areas that were most affected by the internal armed conflict, like Ayacucho and Huancavelica, should be a priority for the government, as “the social map of the Peruvian Andes in 2010 is similar to the map in 1980, before the violence began”.809 The system of reparation for victims including children of human rights violations in Colombia includes Decree 1290 of 2008 under the Justice and Peace Law, in which “a victim is any person whose fundamental rights were violated by any illegal armed group before 22 April 2008 (when the Decree entered into force)”.810 One issue is that there is a time limit of ten years within which compensation can be received. There is a need for more integrated policies in terms of the treatment of children in Colombia, even as efforts regarding children who have been recruited by illegal armed groups and IDP children have been made. Assessments by the Colombian Inter-Sectoral Committee for the Prevention of Forced Recruitment of Children have shown that about 8,000 to 14,000 children are associated with illegal armed groups, and the official figures by the Colombian Office of the Prosecutor’s Unit for the Justice and Peace Law show

806 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 12 807 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 12 808 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 12 809 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 15 810 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 12

Armed Conflict, Transitional Justice and Children and Youth

that between 1990 and 2005 paramilitary groups had recruited 2,824 children.811 A System of Early Alerts (Sistema de Alertas Tempranas) has been established by the Office of the Ombudsman to warn about different situations that put the civilian population at risk like the risk of children and adolescents being recruited.812 For instance in 2007, 90 warnings of risk situations had been issued by the system and 60 per cent of these warnings concerned potential recruitment of children by armed groups.813 For Peru, violence against children took place before the adoption of the CRC, but the CRC has been an important part of the framework for the TRC, and “the challenge for the State is to honour its international obligations to children and focus on reparation programmes, especially collective ones”.814 For Colombia, “the CRC and its Optional Protocol on children and armed conflict, as well as the 1977 Second Additional Protocol to the Geneva Convention have framed the implementation of policies and programmes for children. The main challenge is to carry out reparation programmes and utilize these international standards to end the violence.”815 There is a need in both countries to strengthen the role of the judiciary and administrative measures, and to establish transitional justice programmes that focus on children and are guided by international law, and include access to health, education and social investment.816 In Peru the National Human Rights Plan from 2005 is law and official state policy, and Carrasco means that this law should be implemented by government agencies, the Ombudsperson and the civil society organizations.817 While in 811

Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 3 812 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 13 813 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 13 and footnote 39 814 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 14 815 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 14 816 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 14 817 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 14

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Colombia, he means that truth seeking mechanisms that focus on the situation of children should be a priority, and that judicial mechanisms should concentrate on the prosecution of those responsible for conscripting children.818 13.9.1.

The Truth and Reconciliation Commission for Peru and Children The Shining Path took my husband out and they asked me where the money was, they asked my son too. They took my husband away and left me with my five children. In 1989 we were left like that, widows, and we went from hole to hole trying to hide, frightened at the least sound, we couldn’t even go back to our homes. They grabbed one man and cut his throat saying it was about time we took up the armed struggle. (…) ‘I’m not doing anything’, I told him and he hit me on the head with a stick. They slashed my baby. We were all hooded, and they started hitting us. (…) They took them to the square. Some said ‘I don’t know anything’. They called them dogs, killed them and later piled the bodies up one on top of the other. – An inhabitant of the Community of Paccha819 My mother disappeared in 1991 when I was 12 years old. The next day I went to the police to look for my mother and they told me she hadn’t been taken there. I cried all night but I had to be strong for Paul, my brother. We went to the police so often that we made friends with one man there, the same one who tortured my mother, and he told me that she had been taken there. Sometimes I leave the door open because I still expect her to come back but no, she’s not going to come back but I still can’t rest … On the first of November, the day of the Dead, in Ayacucho candles are taken to the dead. But I don’t know where to take mine because I don’t know where to go … – Liz Marcela Rojas Váldez 820

The Truth and Reconciliation Commission for Peru was inaugurated on 13 July 2001 and issued its final report on 28 August 2003, and in this section follows its work specifically on the experiences of the children during the internal armed

818 Herencia Carrasco, S., Transitional Justice and the Situations of Children in Colombia and Peru, Innocenti Working Paper, UNICEF Innocenti Research Centre, IWP 2010-16, June, 2010, p. 15 819 Amnesty International, Peru: The Truth and Reconciliation Commission – a first step towards a country without justice, AI Index: AMR 46/003/2004, August 2004, p. 6 820 Amnesty International, Peru: The Truth and Reconciliation Commission – a first step towards a country without justice, AI Index: AMR 46/003/2004, August 2004, p. 8

Armed Conflict, Transitional Justice and Children and Youth

conflict.821 The Peruvian Truth and Reconciliation Commission (TRC) began by stating that the TRC recognized children as subjects of rights, and making reference to the CRC which Peru ratified in 1990 stated that children were individuals between one month and 18 years.822 The TRC registered 2,952 cases of crimes and violations against children in its database and found that the types of human rights violations that the children had been exposed to between 1980 and 2000 were (beginning with the most common and then down to the least common) forced recruitment, sexual violations, kidnappings, disappearances, assassinations/extrajudicial executions, detentions and torture.823 With regards to forced recruitment the TRC made clear that it considered forced recruitment to be “actions by agents of the State and the subversive groups to force minors under the age of 18 years to participate in the hostilities”, which included direct participation in confrontations and combat, but also indirect participation such as acting as guides, cleaning and transporting arms.824 The TRC made reference to several international treaties and documents that the Peruvian government had ratified and/or adhered to (such as the Universal Declaration of Human Rights of 1948, the American Declaration of the Rights and Duties of Man of 1948, the American Convention of Human Rights of 1969, Additional Protocol II to the Geneva Conventions of 1977, the CRC of 1989, the Rome Statute of ICC of 1998) and in terms of forced recruitment the TRC in addition referred to the Peruvian Constitutions of 1979 (which made all forms of forced recruitment illegal) and 1993 (which made taking away the freedom of an individual without any regard to the law and without the police detaining a person a “flagrant crime” and thus an arbitrary detention) and stated that forced recruitment of minors by the state was to illegally restrict the freedom of the individuals and thus was a grave violation of their rights according to both national and international law.825 The TRC explained that the government had in 1992 issued the Decreto Ley 25564 which allowed for the minors in the age group 15-17 years of age to be “prosecuted” by el Fuero Militar, military tribunals, which was in contravention of existing Peruvian law as well as of international norms, however the Law 26447 of 1995 reinstituted the special jurisdiction for children and adolescents, and since that date the number of illegal detentions of minors significantly decreased.826 821 For dates see United States Institute of Peace, USIP, Truth Commission: Peru 01, http;//www.usip.org/print/publications/truth-commission-peru-01 822 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 585-586; http;//www.usip.org/print/publications/truth-commission-peru-01, The whole text from the Final Report is translated from Spanish to English by the author. 823 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 586, Gráfico 1; and p. 620 824 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 586, footnote 2 825 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 586-589 826 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 590

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However, illegal detention of minors who were accused of terrorism and treason of the country peaked in 1983–1984, 1989–1991 and 1993 and affected mostly the age group between 16–17 years of age, where the TRC was able to show that of all the illegal detentions of minors, 45.13 per cent were between 16 and 17 years of age.827 Minors made up 13.19 per cent of all cases of forced disappearances, which were carried out in an indiscriminate manner, and this number came from that the Defensoría del Pueblo had registered 46 cases of disappeared children who were under the age of four years.828 Forced disappearances peaked in 1983–1982, 1989–1990, and 1992, and 56,45 per cent of all the cases of disappearances of children took place in the Department of Ayacucho where most children disappeared (La Mar, Huanta, Huamanga and Cangallo were the other most affected areas). The age group between 16 and 17 years of age was also the most affected by detentions (45.13 per cent) and forced disappearances (53.14 per cent).829 The TRC had registered in its database that 12.06 per cent of all registered arbitrary executions were committed against minors and that state agents were responsible for 42.20 per cent of these cases.830 The arbitrary executions of minors peaked in 1983–1985, 1987, and 1989–1992 and were most common in Huanta, La Mar, Huamanga and Cangallo in the Department of Ayacucho, which was considered to be “the cost” of eradicating the subversion.831 The TRC reported that neither the state agents nor the subversive groups showed any consideration to neither the victim’s age nor gender, as all could become victims of arbitrary executions.832 The TRC took notice that several children and minors were the victims of landmines and grenades and other explosives, and that many either died or were injured because of them, however the TRC did not provide any statistics of the scope of this violation.833 The TRC had registered that of all victims of torture, minors constituted 7 per cent, and of these state agents were responsible for 70 per cent of the cases.834 The majority of these violations took place in Ayacucho, Huanuco and Junín, with peaks in 1983–1984, 1986 and 1988–1992, and again the age group between 16 and 17 years was the most affected amounting to 47.19 per cent of the victims of minors.835 The abovementioned Law of 1992 which reduced the age to 15 years for detention in terrorist cases corresponded with many cases of torture, and other cruel, inhumane and degrading treatment of minors, and many of these cases took place by the state (agents) “ ferias” during prejudicial de827 828 829 830 831 832 833 834 835

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 590 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 593 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 594 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 595 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 596 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 597 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 598 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 599 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 599

Armed Conflict, Transitional Justice and Children and Youth

tention in order to get their confession and/or collaboration.836 Threats of torture were a common practice to force children to give information about their family members and many children were forced to watch while their parents or other family members were subjected to abuse and “extreme violence”. In some situations whole families were detained by the Fuerzas Armadas or the police where children were subjected to threats of torture and in some cases were tortured as a way to get them to give information and to “tell on” their parents or other family members.837 The children were considered easy to manipulate and were thus used to gain information. The TRC registered 85 cases of sexual violence against minors including boys, and state agents were responsible for 70.59 per cent of those.838 Ayacucho, Huánuco and Ucayali departments were those departments where sexual violence was most common. The majority of the girls who were victims of sexual violence were very young as 58.33 per cent of all the girls who were sexually violated were between 10 and 15 years of age, while 35 per cent were girls between 16 and 17 years of age.839 There were several different reasons that the children were sexually violated including that sexual violence was used as a method of torture to gain information, or to intimidate the population, and as one witness testified that a girl “was violated by a line of marines, in front of all of us, in front of her father”.840 Furthermore, in many cases it was possible to establish that a girl who had been executed had been sexually violated before she was killed such as during the Operativo Aries in 1994. An autopsy of children who had been assassinated in Cayumba Chico revealed that a six year old girl and a 14 year old girl had been sexually violated before they were killed, and their sister gave a testimony to the TRC stating that: My mother was violated, she had her arms broken, … My sister, a girl who was six years old was violated, her legs were cut. Th is is not right. What had a baby done wrong, she had just begun to live. She did not know anything.841

The TRC reported that in many cases of sexual violence there were several perpetrators involved, and that many of the girls were also subjected to other forms of sexual violence such as sexual servitude and forced prostitution in military bases.842 836 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 599 837 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 599-600 838 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 600 and 602 839 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 601 840 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 601 841 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 601 842 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 602

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The Peruvian TRC stipulated that sexual violence was committed against mainly women and girls because of their gender, and that all the registered victims of sexual violence in the TRC’s database were female.843 Sexual violence was narrowly defined and the database omitted several different forms of sexual violence such as forced prostitution, and the database only included those victims whose full name was known.844 The TRC found that of all the reported crimes reported to it, sexual violence made up about 1.53 per cent of them, and that it was an invisible crime for which one reason was that sexual violence was often committed at the same time as other violations were being committed such as massacres, arbitrary detention, arbitrary executions and torture.845 Sexual violence was being committed in the context of much violence and gender discrimination where the human rights of women had not been respected and where in the context of general impunity, the crimes of sexual violence were treated as secondary and as a form of collateral damage and not as a violation of human rights.846 The TRC pointed out that while the Commission had received a limited number of testimonies related to only sexual violence, its database included information about 7,426 women who had been the victims of forced disappearances, detentions, torture and extrajudicial executions and that while it was not possible to state that all of these women had been sexually violated it was still possible to assume that many had been victims of sexual violence and that the actual number of women who had been sexually violated would considerably increase if it had been possible to confirm all these cases.847 It was possible for the TRC to confirm that the victims of sexual violence belonged to the social groups that were the least integrated into the economic and political centres of power in the society, and that these victims were part of those groups that were especially vulnerable and marginalized of which a vast majority were illiterate and had either not been able to attend any education or only at the primary level.848 About 25 per cent of the victims of sexual violence registered in the database had not had any education at all, while about 45 per cent had had primary education. Seventy-five per cent of the victims were women called the ‘quechuablantes’, 83 per cent of the victims came from the rural areas and 36 per cent were farmers, the women who were victims of the most intense sexual violence belonged to the most excluded and least protected group of the population.849 The majority of the victims of sexual violence registered in the TRC database were between 10 and 843 844 845 846 847 848

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 273 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 274 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 274-275 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 275 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 275 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 275-276, Gráfico 3 849 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 276

Armed Conflict, Transitional Justice and Children and Youth

29 years of age, with the victims in the age range 20–29 years of age constituting the absolute majority, closely followed by victims in the age range between 10–19 years.850 Sexual violence had been widespread in the country where registered victims had come from 15 departments of the country, but Ayacucho was the one department with the most registered cases of sexual violence, followed by Huancavelica, Huánuco and Apurímac and the majority of the population in these departments were farmers.851 The TRC stated that it was important to stress that sexual violence was not conducted in the same manner in all the contexts, and therefore it was necessary to look at the perpetrator, age and the location of the crime.852 It was found that perpetrators representing the state were responsible for 83 per cent of the crimes reported, and that Sendero Luminoso and MRTA were responsible for about 11 per cent. The TRC reported that the state was responsible for the majority of the acts of sexual violence, while Sendero Luminoso and MRTA were responsible for such acts as forced abortion, forced union (forced marriage or forced cohabitation) and sexual servitude. An analysis of the database showed that sexual violence tended to follow the carrying out of other human rights violations, so that when enforced disappearances and torture increased as well as were at their highest level, sexual violence also increased and was at its highest level at the same time as these two other violations.853 During many years the poorest young people in the country were forcibly enrolled into what were called the “batidas” and the “levas” operations by the military as a result of the Law on Compulsory Military Service, “la Ley del Servicio Militar Obligatorio (SMO)” and the procedures following the Law.854 These young people were mainly between 15 to 17 years of age, and some were under the age of 15 years. Forced recruitment into the “levas” mainly took place in cities in the centre of the country among students with secondary education all coming from the poorest areas in the cities and who were between 15 and 30 years of age. Furthermore, even as the Comités de Auto Defensa had regulations that 18 years of age was the minimum age for participating in these Comités, the TRC reported that many children between 13 and 15 years of age nonetheless participated in these groups and in their military activities.855 The most common violations of children that the Sendero Luminoso (PCPSL) committed were first forced recruitment, then sexual violence, kidnappings,

850 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 276, Gráfico 4 851 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 277 852 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 277 853 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 278-279, and Gráfico 8 854 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 602 855 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 603-604

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assassinations/extrajudicial executions and torture, and forced recruitment, sexual violence and kidnappings by the PCP-SL were to a large extent targeted towards children.856 The TRC registered in its database a total of 891 children who had been killed (assassinated) in the armed conflict and PCP-SL was responsible for 49.72 per cent of those assassinations with the highest number killed between 1983 and 1988 and with another peak in 1993–1994.857 Most of the assassinations took place in those areas that were the most affected by the armed conflict, in the rural areas in Ayacucho, Huanuco and Junín where the population was unprotected, and the assassinations against the children were committed in the context that whole communities were assassinated with the PCP-SL indiscriminately killing just anybody irrespective of age (all were equally targeted men, women, children, babies and elderly people).858 As a witness in a testimony given to the TRC testified about PCP-SL regarding the town of Chaupihuasi of Soras in Sucre, Ayacucho:859 The ‘compañeros’ killed everybody in the community, everybody … So far I have asked myself: How can it be that these persons that they killed, where they had been buried, … these babies of two, three, eight, nine months …, why had the pupils, of which the majority were 7, 8 years, all been killed together with their teacher in the school, only to leave behind to live the children who were 3, 4 years of age whom for sure these ‘compañeros’ have not considered or have in any hidden place??? …

In a testimony about PCP-SL given to the Court by a witness:860 [T]hese terrorist women picked up (the babies) like a rabbit and tore them to pieces without compassion …, ‘it is difficult to bring them up, then let’s have them killed’.

This indiscriminate violence and grave human rights violations that the PCP-SL carried out created an increasing fear among the PCP-SL that the children would carry out some revenge against them, and in this situation some of the members of the PLP-SL chose to assassinate the children.861 The PCP-SL had a rule that there should be no distinction made regarding age when it came to executions, and a member of the PCP-SL would each time be punished if he/she were to backslide on this rule, and if this person continued

856 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 605 857 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 605, Gráfico 7 858 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 606-607 859 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 607 860 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 608 861 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 608

Armed Conflict, Transitional Justice and Children and Youth

to disobey or tried to escape this person was killed.862 As the TRC explained this was a way for the PCP-SL to maintain discipline and any consideration of the age of the victim was not a reason to be exempted from punishment. When the military moved into areas over which the PCP-SL had some control, the PCP-SL began to force the population to move to different bases, and during these movements of hundreds of people many died, and it was foremost the infants and the children that due to a shortage of food suffered a high degree of malnutrition and anaemia, and they were put to death because they were viewed as a burden and because of a fear that they would inform against the PCP-SL if the government captured them.863 Another reason as to why babies and children were killed in these kinds of situations was because their crying could alert the government and reveal their hiding places. A witness gave this testimony to the TRC describing events in La Mar in Ayacucho department during 1986 to 1987 of how little babies were deliberately killed without any mercy by the PCP-SL:864 When some child cried a lot often because of hunger, the terrorists would say: kill the child, because it is the child’s fault that we are discovered, this took place with the babies who were breast-feeding and who were crying … [A]ll of them had to be eliminated. After they had been assassinated some were thrown into the rivers and some over the cliffs.

The TRC had registered in its database that 7 per cent of all the victims of torture and other cruel, inhumane and degrading treatment were children, and of these the PCP-SL were responsible for 21.82 per cent of all the cases.865 Most of these violations took place during 1983–1984 and 1989–1992 in the departments of Ayacucho (La Mar), Cuzco, Apurimac, Huancavelica, Huanuco and Ucayali, of which 43.06 per cent of the victims were between 10–17 years, and 38.89 per cent between 16–17 years of age.866 Children were tortured for a number of reasons, such as in order to create fear in the communities. In the district of Iguain at the time of the general elections in 1990, many peasants’ hands were mutilated as well as the children’s which was a way to keep people from voting.867 Furthermore, in the camps that the PCP-SL established adults and children alike were subjected to indiscriminate violence as a form of punishment, like for instance a little boy who got severely whipped for having eaten five plantains.868 The psychological torture of the children included having had to witness the death of their parents 862 863 864 865 866 867 868

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 608 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 608-609 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 609 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 609 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 609 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 610 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 610

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and family members, and many suffered from many traumas as a consequence of the brutal violence that was committed.869 The TRC received many testimonies about children who remained for days next to their dead parents and family members, and how children who witnessed the executions of their parents clinged to their bodies.870 This following testimony given to the TRC was given by a woman who was only eight years old at the time when her mother was beaten to death by members of the PLP-SL, and here she describes how she tried to care for her mother who subsequently died:871 Our children saw that our parents and bigger brothers were beaten up and started to scream … [S]o this was fear, we had to make them calm down. And I started to make my little ‘cuerpecito’ become sleepy. Much of our (intimate) needs that we had, we had to urinate and … right there, in our clothes … in my presence, one would think that they would have some mercy and compassion for us, having killed my mother and the lady; even her little boy they cut his neck off. I could not do anything … I wanted to lift up my mother to help her get well but blood began to come out bubbling up from her stomach. It was not possible to control the state of my mother regressing in my home and I dressed her with a blanket to cover her, thinking that she might survive; but she died.

The PLP-SL was responsible for 18.82 per cent of the 85 cases of sexual violence of children that the TRC had registered in its database.872 While the PLP-SL had internal rules that would punish those that committed sexual violations, there were still several members of the group that committed sexual violence against women and girls with no sanctions delivered by the group leaders. For instance the Fuerza Principal had “señoritas” stationed at their bases, and many of them were assigned to take care of the leaders and chiefs and many of them were abused.873 A witness whose nine children had been assassinated by the PLP-SL in a testimony given to the TRC recounted:874 The Senderista? The chiefs had their women: 15 to 16 years old girls, “colonas chiquillas”, they did not have children … The women were their security, they were not together with the masses. If they did not consent to this or that, if not, they were killed, …

869 870 871 872 873 874

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 610 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 611 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 611 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 611 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 612 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 611-612

Armed Conflict, Transitional Justice and Children and Youth

The PCP-SL committed many sexual violations of girls when they retreated and withdrew towards the mountains, and inside the camps men and women slept “together”. The idea was to protect each other, however it was an opportunity to violate the girls.875 Also, the TRC was given testimonies that if girls were not willing to become members of the PLP-SL, then the PLP-SL sexually violated the girls and killed them as a form of punishment.876 The PCP-SL generally and systematically apprehended and used children in hostilities, with peaks between 1983–1985 and 1987–1990, and was responsible for 42.34 per cent of all the cases of forced recruitment of children and kidnapping of children that the TRC had registered in its database.877 As much as 80.1 per cent of PCP-SL’s forced recruitment took place in four departments, Ayacucho (La Mar and Cangallo), Huancavelica, Huanuco and Junín, and on a lesser scale in San Martín and Apurimac. The leadership of the PCP-SL regarded the forced recruitment of children as part of its “Ejército Guerillero Popular”, of which the majority was male with 75.8 per cent of the children being boys, coming from peasant families from the rural areas.878 The TRC stated that “the forcibly recruited children represented the hope and the future of the political party (of the PCP-SL) and was within its vision of a prolonged war, the children served as the human reserve”.879 Most of the recruitment took place through coercion, deception and violence with many of the children participating under pressure and for fear of punishment.880 If the communities and the families refused to voluntarily supply their children to the group, that is the “quota” of children to be recruited, then the children were forcibly recruited after threats and after killing those that refused to comply.881 The subversives directly threatened the parents of the children they wanted to recruit, such as the following testimony by a parent given to the TRC shows:882 Your son has come with us until death, said the subversives to me … If you do not let your son be with us, we will kill your whole family.

875 876 877 878 879 880 881 882

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 612 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 612 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 612-613 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 612-613 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 613 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 614 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 614 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 614

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Furthermore, the subversives went into schools in order to select for recruitment the tallest, strongest and most serious children, and the teachers who opposed these recruitments were killed.883 With the recruited children the PCP-SL created what was called “pioneer children” (“niños pioneros”) and “the red pioneers” (“pioneros rojos”), and the children were forced to carry out several different tasks. The younger ones like the 11 year olds did not directly participate in confrontations or raids, but carried out tasks such as acting as watchmen and messengers, porters, engaging in spying and providing food.884 The pioneer children, as young as 12 years of age, were taught to use weapons and make bombs, and they were trained from this age on to be able to participate in armed actions and in armed confrontations.885 When I was a child I appreciated Sendero as I did not live peacefully in my home. Sendero did not teach us schooling, we were only taught physical training, we were taught how to handle weapons … My organization was called Fuerza Principal. Young people of different ages between 12 and 30 years old were integrated, men, women and children made up from people from the mountain, native people from all the places …

Within the logic of the PCP-SL’s use of children as taking part in their armed attacks, these children were called “niños bomba” (children bombs).886 The “niños bomba” method entailed giving to a child or a young person a cartridge of dynamite with a burning fuse, and the child or youngster had to run about one hundred meters and throw the dynamite towards the target, however, in many cases the dynamite exploded while the child or youngster still held it and they died.887 Once the PLP-SL had recruited the children, they did not belong to their families anymore, their families were “ancient”, and by keeping them separated from their parents and attempting to train them for future combats of the PLPSL, they were living only for the revolution and all affectionate relationships were forbidden.888 Many children tried to escape from the PLP-SL which was very risky and they were threatened and punished all the time to the extent that many times the child died.889 The children were told that the PLP-SL would come and kill the

883 884 885 886 887 888 889

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 614 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 615 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 615 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 616 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 616 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 616 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 617

Armed Conflict, Transitional Justice and Children and Youth

child if the child escaped: “[W]e will come and kill you like that as well, with your whole family if you try to escape.”890 The MRTA, Movimiento Revolucionario Tupac Amaru, was only found responsible for about 1.63 per cent of the violations against children that were registered in the TRC’s database.891 However, the TRC received several testimonies regarding sexual violence of children committed by the MRTA, and also regarding that girls were given injections by the MRTA in order to put an end to their menstruations so that they would not get pregnant.892 A testimony given to the TRC revealed that in those cases where a girl did get pregnant, the MRTA took the newly born child and gave the baby away to strangers.893 The MRTA forcibly recruited many children and was responsible for 47.8 per cent of all the forcibly recruited and kidnapped children registered in the TRC’s database, and most such cases took place in Ayacucho, San Martín, Ucayali and Junín.894 In some cases the children were promised some form of payment, salary or compensation if they were recruited, but this never took place. However in most cases the children were recruited through coercion and threats, and the children that did not want to participate were forcibly taken to the camps.895 A witness stated in a testimony given to the TRC that to recruit children was part of MRTA’s strategy and that the MRTA considered the children as “better than the adults, they are more agile, and with them it is possible to recover many weapons”.896 For instance, child soldiers participated in the MRTA seizure of the Japanese embassy in 1997 in Lima, and they had been recruited and then indoctrinated for several years by the MRTA.897 The child soldiers were used to carry out many different tasks, including providing food but also having to participate in armed confrontations. The child soldiers lived under very harsh conditions while with the MRTA, and the long marches and little food affected the health of the children and many children developed anaemia which in many cases led to death.898 Furthermore, many children tried to escape, but they were all the time discouraged to do so, and they were frightened by death threats towards themselves and their families. The TRC concluded that the forced recruitment of children by state agents was a systematic and general practice, and that the armed forces turned to the “levas” as a compulsory recruitment mechanism, targeting children aged 15 to 17 890 891 892 893 894 895 896 897 898

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 617 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 617 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 618 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 618 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 618 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 618 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 619 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 619 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 619

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years, mostly from the rural and most impoverished areas in the country, which was in contravenience with the national law and international norms regarding human rights and international humanitarian law.899 In this way, thousands of children from different parts of the country became “levados” and were moved to the emergency zones in order to participate in the antisubversive actions by the state. The TRC continued stating that this practice by the armed forces had been going on for years and the judiciary which included the different judicial instances such as Poder Judicial and the Ministerio Público y Tribunal de Garantías Constitucionales diminished the freedoms of the children, and treated forced recruitment as something normal and not as a crime that violated the human rights of the children.900 With regards to the PCP-SL the TRC concluded that the PCP-SL did not have a systematic strategy to target children per se, but that all the assassinations, torture, the cruel, inhumane and degrading treatment and the sexual violence that they carried out were all committed indiscriminately against everybody that did not support their ideas no matter the age.901 However, the forced recruitment and kidnappings of children were a planned strategy directed against the children, so that they could participate in the fighting. The TRC stated that the PCP-SL had a persistent, repetitive and on-going strategy to forcibly recruit children and then mostly in the departments of Ayacucho, Huancavelica, Huanuco and Junín. The TRC continued that the PCP-SL saw the children as being part of the “Ejercito Guerillero Popular”, creating the organization of the “niños pioneros” and the “pionero rojos” in which children carried out different tasks such as being watchmen, spies and providing food.902 The TRC stated that la Fuerza Principal of the PCP-SL had for 12 years among other things taught the pioneer children how to use weapons, with the objective of having these children being able to participate in the armed actions and confrontations. As a result, the TRC stated, the grave violations that the PCP-SL had committed amounted to grave violations of the fundamental rights of all people and international humanitarian law.903 With regards to MRTA the TRC concluded that it did not have a systematic and generalized strategy to use sexual violence against children, but that MRTA had within the strategy to incorporate people into the organization a practice to forcibly recruit children, while not a generalized practice, and that this practice was mostly carried out in Ayacucho, San Martín, Junín and Ucayali.904 The lack of state presence or institutional mechanisms in areas most affected by the armed conflict was highlighted by the Peruvian TRC, and one of the re899 900 901 902 903 904

The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 620 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 620-621 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 621 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 621 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 621 The Peruvian Truth and Reconciliation Commission, Final Report 2003, p. 621

Armed Conflict, Transitional Justice and Children and Youth

forms recommended by the TRC was that the government would give “incentives … to those working in state education and health to go and work in the areas that were most affected by the conflict and are far away from the urban areas”.905 Furthermore, the TRC recommended reforms concerning the education system that this system would be:906 (a)

(b) (c)

promoting respect for ethnic and cultural differences and favouring a policy of bilingual and cross-cultural education that, by prioritizing children from the poorest areas that were most affected by the violence, can bring about greater integration and overcome racism and discrimination. drawing up a plan to teach basic literacy that prioritizes teenage and adult women in rural areas where illiteracy rates are highest. improving rural schools at the level of both infrastructure and staffi ng.

The Peruvian Education Ministry and different educational institutions began providing children of victims of the conflict grants in the education area from September 2003.907 13.10.

Conclusion

As the Truth and Reconciliation Commissions for especially Sierra Leone, Liberia and Peru reveal, the atrocities committed against children are breathtakingly cruel, and committed without any second thought to their sensitivity and vulnerability. The experiences of these Commissions also show the necessity of establishing the facts of atrocities committed against children as in all of these cases there has been absolutely no protection of children, and to have a truth commission established at least at some level demands the accountability of the state of having so fundamentally failed to protect its children, which a state is legally obliged to do under all circumstances. The issues of reconciliation are very complex, and the factors that constitute reconciliation need to be examined in a deeper way. People might have been exposed to different traumatic events in a conflict situation, and in addition, people experiencing the same types of events might be affected in different ways and perceive their situation differently from each other. As was shown earlier sexual 905 Amnesty International, Peru: The Truth and Reconciliation Commission – a first step towards a country without justice, AI Index: AMR 46/003/2004, August 2004, p. 25 906 Amnesty International, Peru: The Truth and Reconciliation Commission – a first step towards a country without justice, AI Index: AMR 46/003/2004, August 2004, p. 25-26 907 Amnesty International, Peru: The Truth and Reconciliation Commission – a first step towards a country without justice, AI Index: AMR 46/003/2004, August 2004, p. 28

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violence can have deep-seated consequences that fundamentally affect the whole society as it was more difficult for some people who had been sexually violated to reconcile, which is another reason to include women and children in transitional justice processes such as reconciliation processes. Very difficult situations such as in Rwanda during the genocide or the ethnic cleansing in Bosnia-Hercegovina require a much deeper understanding of the underlying factors that contribute to tolerance, justice and reconciliation than high-flying language and concepts of peace, justice and reconciliation. We cannot afford to assume associations between different factors as a result of simplistic thinking or inability to go deeper into difficult social issues, as there is a great need to explain why such violence could take place and how it can be prevented in the future. This needs also to be seen in the context that sexual violence for instance has continued in these countries in the post-conflict phase.

14.

Children Associated With Armed Forces and Armed Groups

They are soldiers. You can’t call soldiers children. If they are old enough to carry a weapon, they are old enough to be soldiers.1

In an on-going armed conflict situation, it is very difficult to establish the exact number of children that are being recruited since the recruitment of child soldiers is not conducted openly but in concealed ways with no formal registration or documentation. It has been very challenging to estimate how many child soldiers there are in the world, for a long time the most common estimate was about 250,000– 300,000 child soldiers, but this number seems to have been abandoned, and instead for instance the Global Coalition to End Child Soldiers does not anymore give any estimate as they mean it is not possible to present an accurate number.2 UNICEF has used a 10 per cent ratio of children to adult combatants to estimate the number of children associated with armed forces in a given country.3 The Global Coalition to End Child Soldiers reported in 2008 that between May 2004 and October 2007 children had been used as child soldiers in 19 countries by government forces and non-state armed actors, and those countries were Afghanistan, Burundi, Central African Republic, Chad, Colombia, Côte d’Ivoire, Democratic Republic of Congo (DRC), India, Indonesia, Iraq, Israel, Occupied Palestine Territory, Myanmar, Nepal, Philippines, Somalia, Sri Lanka, Sudan, Thailand and Uganda.4 Another development as noted elsewhere is the 1612 MRM mechanism of 2005 where the UN Secretary-General to his annual re1 2

3 4

As a militia leader explained to a Child Protection Officer, Goma, DRC, April/ May 2007 The Coalition to Stop the Use of Child Soldiers, Global Report 2008 Summary: The Coalition to Stop the Use of Child Soldiers and Unicef, Guide to the Optional Protocol on the Involvement of Children in Armed Conflict, December 2003, p. 3; Human Rights Watch, Amnesty International, Save the Children; DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, Footnote 19, p. 17 The Coalition to Stop the Use of Child Soldiers, Global Report 2008 Summary, p. 9

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ports on children and armed conflict since 2006 lists the armed forces and armed groups in the world that recruit and use child soldiers in his two annexes. While by June 2010 about 9,500 children had been demobilized from armed groups where the MRM had been implemented, at the same time “[n]o accurate figures on child soldiers on children associated with insurgent groups exist because the MRM captures the situation only in areas covered by the Security Council”.5 Furthermore not all child soldiers participate in formal Demobilization, Disarmament and Reintegration programmes (DDR programmes) where registration and documentation are taking place of the children. Such a registration process is not always accurate either since many times the military groups do not always voluntarily identify the children. It is also well known that a majority of the girls that have been associated with armed groups do not participate in DDR programmes, by choice or because their military commanders do not let them. In addition many child soldiers self-demobilize informally, by fleeing the groups. However what is clear is that both boys and girls are being recruited and used as child soldiers. It is also clear that children have played a major role in conducting and sustaining current conflicts worldwide. It is important to examine who the children and youth are that are being recruited into governmental armies and different armed groups and where they come from. Some children and youth are forcibly being recruited around the world into armed groups through threat, intimidation and abductions, while other children choose to join an armed group because of reasons such as poverty, domestic abuse and violence, revenge for the death of a family member or for the loss of their whole family. 14.1.

Voluntary and Involuntary Recruitment and Use of Child Soldiers

The difference between voluntary and involuntary recruitment of children is very much debated, as many children do voluntarily join an armed force or group, but they do it in a context of war and as being children having a limited understanding of what being a member of an armed force or group in reality means. As the Coalition to Stop the Use of Child Soldiers argues, the recruitment of children does not take place in a vacuum.6 There are specific societal and economic conditions that make children and youth vulnerable to the recruitment and use of child soldiers. Issues such as poverty, loss of family, revenge, discrimination, exclusion within a context of rampant violence, continuous conflict, ethnic tensions, issues of religion and identity all contribute to creating conditions condu-

5 6

Paez, Beatrice, Recruiters of Child Soldiers Face UN Sanctions, (IPS), June 17, 2010 The Coalition to End the Use of Child Soldiers, Child Recruitment in South Asian Conflicts: Bangladesh, April 2007, www.child-soldiers.org, p. 2

Children Associated With Armed Forces and Armed Groups

cive to children joining armed groups.7 The causes of conflicts such as oppression, exclusion, poverty, ethnic and religious tensions and inequality are all also causes of the phenomenon of child soldiers. It has been documented that there is an increased risk for children to participate in community violence or becoming child soldiers if they as children have been exposed to violence through witnessing, victimization or perpetration.8 For instance in the DRC the commanders of the different groups know that poverty is a cause of recruitment. They can tell child protection officers when they confront the commanders about the illegality of recruiting and using children: “Address the cause of the conflict instead: ‘poverty’. When you address the cause we can talk about child soldiers.”9 They acknowledge themselves that poverty is one reason that children join the armed groups. They take advantage of the situation, and justify their use of the children by implying that they provide an alternative instead. However, instead of choosing to build up a community which would provide the children with safety and a viable future they use the children to destroy the communities. For some being a member of an armed group may provide identity and some form of social standing, while for other children such membership is only painful and frightening. What can be said is that there are different degrees of a voluntary choice, as child soldiers globally come from very different circumstances (e.g. a 16–17 year old British volunteer soldier comes from a very different situation than a child soldier from Colombia).10 This also applies to the national and local level in a country as the reasons to join differ from child to child. As Brett and Sprecht discuss it is necessary to examine the circumstances that lead a child or a young person to voluntarily join an armed force or group, since if these circumstances have not changed after demobilization, they might return to combat.11 Brett and Sprecht carried out a study among child soldiers that revealed how difficult it is to define voluntary recruitment even as former child soldiers themselves said that they had voluntarily joined an armed force or group. For instance one boy from Sierra Leone, Arthur, said that he had voluntarily joined, however at the same time a friend of his who said no to joining was killed in front of him because of his refusal.12 In this context it is difficult to state that Arthur indeed voluntarily chose to join. 7 8

9 10 11 12

The Coalition to End the Use of Child Soldiers, Child Recruitment in South Asian Conflicts: Bangladesh, April 2007, www.child-soldiers.org, p. 2 Wessells, M.G., Monteiro, C., Healing the wounds following protracted conflict in Angola: A community-based approach to assisting war-affected children, 2004, p. 600-601 Another warlord expressing himself in North Kivu, Child Protection Officer in Goma, North Kivu, DRC, April/ May 2007 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 112 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 105 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 109

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In other cases the environment of war makes joining almost an imperative that does not have very much to do with choice. The complexities involved in voluntary recruitment are highlighted in the following statements that two former child soldiers from DRC told Brett and Sprecht:13 Involuntarily – if you have nothing – you volunteer for the army. Involuntarily, because the situation requires it. Michel, DRC I didn’t choose this situation. You know that we are in a country at war, and then you don’t have much choice. You can run away or fight. Christine, DRC

Others talked about how easily impressed they had been by watching action movies on TV, and wanting to be like the actors, and as their own environment was one of war it was possible to kind of live out that dream but with no understanding of what war really meant for them and the acts they had to carry out and the consequences deriving from these acts. As Germain from DRC explained:14 … You see at the beginning I didn’t think of that, because I watched the television, and I didn’t know the consequences and how it could happen, and so on. I didn’t think of that, I was still a kid. I was so impressed by the actions, the way of handling the weapons, their way of getting dressed. I said to myself that one day, I would also wear the same outfit … I didn’t know that in the army, I would suffer.

Furthermore, the voluntary choice of a child soldier must also be seen in the context that very few child soldiers are ever allowed to leave an armed force or group once they have been recruited (except for the NPA in the Philippines) where only the initial choice was voluntary with few choices left.15 Furthermore, when children have been injured in action and have required medical care, parents, as in DRC, have been made to pay the medical bills so that the children become fit enough to go back into action. The former child soldier Germain from DRC had been seriously injured and was getting medical treatment at a hospital when he realized that it was his mother that was sitting by his bedside all the time. He also learned that she was the one who paid his medical bills, and that she did not want him to go back to fight but instead to come back home with her:16

13 14 15 16

Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 109 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 109 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 110 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 110

Children Associated With Armed Forces and Armed Groups

… But then I realized that it was my mother … [S]he paid all the hospital treatment you know. (Silence) I asked her forgiveness, she began to cry so did I; she spoke of our family, my father, our family, you know. She wanted to take me back home with her … She asked permission, from a superior, to take me home with her; he told her that a soldier could never go back as a civilian and that if I had been hospitalized it was so that I could go back to fight. They took me back. (Silence) She was against it. (Silence) My mother really wanted to take me back, so they transferred me to another hospital without telling her.

The children in the study had all said that they consider themselves as having voluntarily joined an armed force or group, however when examining the circumstances around their recruitment, serious concerns about the degree of voluntary recruitment were raised. First regarding the proof of age requirement only one of the 53 former child soldiers studied said that his recruiters had been concerned about his young age and had suggested that he continued his education “instead”.17 Many of the children had not had their parent’s consent to join, and most of the children had not had any understanding of what a child soldier was expected to do. With regards to the requirement of the recruitment being “genuinely voluntary”, factors relevant for each child needed to be determined as for instance the environment of war was one factor indicating no choice for some, while for some they saw friends being killed if they did not want to join and also the fact that most of the child soldiers were not free to leave a group once they joined show the limitation of their choices, and raise questions about the degree of their voluntary consent.18 In DRC all parties to the conflict have recruited and used children.19 There are estimates that about 30,000 children have been associated with armed forces and groups in DRC, a number which the government of DRC and the World Bank agreed on at the time the DDR programme including for children was being planned in 2002.20 Amnesty International reported in 2006 that four categories of armed forces and groups included children in their ranks in DRC and they were:21 –

17 18 19 20 21

Armed groups that resist government authority and refuse to join the reform of the army process;

Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 115 Brett, R., Specht, I., Young soldiers, Why they choose to fight, 2004, p. 115 Watchlist on Children and Armed Conflict, Struggling to Survive: Children in Armed Confl ict in the Democratic Republic of the Congo, p. 2, April 2006 See footnote 1, Amnesty International, Democratic Republic of Congo: Children at War: Creating Hope for Their Future, AFR 62/017/2006, October 2006, p. 2 Amnesty International, Amnesty International, Democratic Republic of Congo: Children at War: Creating Hope for Their Future, AFR 62/017/2006, October 2006

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– – –

Non-integrated FARDC (former armed group) units awaiting to enter the brassage/DDR programmes; Integrated FARDC brigades; Foreign armed groups.

The manipulation of children includes taking advantage of their situations, such as being refugees. Congolese refugee children of Tutsi ethnicity, living in refugee camps in Rwanda, have regularly been recruited to fight in DRC. Children see their parents and families suffer, and some want to help pave the way for their return by participating in fighting for this. Revenge is also a motive for some children. However, their adult recruiters use and manipulate the children for their own purposes. For child protection officers, to negotiate the release of these children is very complex. The adult militia leaders make statements such as: “The child soldiers, where are you going to reunify them with their families? In the refugee camps?”22 For instance Congolese children were recruited from refugee camps in Rwanda by Laurent NKunda’s CNDP forces (the National Council for the Defence of the People); NKunda’s forces were notoriously known for recruiting children, and the DRC government issued an international arrest warrant in 2005 regarding Laurent NKunda who was accused of having committed war crimes in Kisangani 2002 and Bukavu 2004. The Rwandan government finally agreed to have him arrested in Rwanda on 22 January 2009.23 Many children have been fleeing from having to be recruited into different armed groups in Northern Kivu in DRC as a preventive measure.24 The children know that they can be recruited and thus try to flee from having to be recruited, and since there is no protection for the children and their families it is really up to the children alone to act. Once children have become members of the armed forces or armed groups child protection officers working with child soldiers in DRC have stated that “[c]hildren flee from the armed groups as soon as they can”.25 In Sri Lanka the Tamil separatist group the Liberation Tigers of Tamil Eelam, LTTE, was notoriously known for recruiting and using children during the civil war in Sri Lanka which finally ended in 2009. At first the Sri Lankan government and the LTTE had been involved in a civil war going on from 1983 to 2002, and a

22 23

24 25

Another warlord to a Child Protection Officer, Goma, North Kivu, DRC, April/ May 2007 Amnesty International, Amnesty International, Democratic Republic of Congo: Children at War: Creating Hope for Their Future, AFR 62/017/2006, October 2006, Amnesty International, Democratic Republic of Congo (DRC): Escalating violence in North-Kivu deepens risk of mass ethnic killings, Press Release, News Amnesty, 09/10/2007, and Democratic Republic of Congo: Laurent NKunda and Bosco Ntaganda must face justice, Public Statement, 28 January 2009, AFR 62/001/2009 Visit to Goma, North Kivu, the DRC, April/ May 2007 Child Protection Officer in Goma, North Kivu, DRC, April/ May 2007

Children Associated With Armed Forces and Armed Groups

cease-fire was brokered by the Norwegian government in 2002.26 The cease-fire did not prevent the LTTE from continuing to recruit children, but had instead the consequence that the LTTE moved into areas formerly under governmental control and thus instead expanded their reach.27 The LTTE withdrew from the peace talks in April 2003, and after the presidential elections in November 2005 the situation worsened.28 More than 20,000 people were displaced and over 1,000 people died. The LTTE focused on children aged 14 to 16 years, however they also recruited much younger children aged 11 and 12 years.29 There are accounts that the LTTE used ten year olds to carry out suicide missions.30 The LTTE was long considered the leader in the world in suicide-bomb attacks. The LTTE mainly used a combination of force and coercion to recruit and use children in their ranks. The situation was particularly complex in Sri Lanka since the use of children by the LTTE was so well organized. During the Eelam Wars, children made up 40 per cent of the whole LTTE fighting force and participated in major battles.31 Girls have made up 40 per cent of all the children recruited. The child soldiers have been termed the “Baby Brigade”, which referred to the widespread use of children by the LTTE, and the Leopard Brigade (Sirasu Puli) was made up of only children and became one of the strongest fighting forces of LTTE.32 In some parts the LTTE introduced a “one family, one child” policy which meant that the LTTE told families that they had an obligation to give a son or daughter to “the cause”.33 Especially in the district of Batticaloa was this “one family, one child” policy intensified from September 2001.34 If a family did 26 27 28

29 30 31

32

33 34

Human Rights Watch, Living in Fear, child soldiers and the Tamil Tigers in Sri Lanka, Nov. 2004, Vol. 16, No. 13, p. 3 and 13 Human Rights Watch, Living in Fear, child soldiers and the Tamil Tigers in Sri Lanka, Nov. 2004, Vol. 16, No. 13, p. 2 Hogg, Charu Lata, Child Recruitment in South Asian confl icts, A comparative analysis of Sri Lanka, Nepal, and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 2-3 Human Rights Watch, Complicit in Crime: State collusion in abduction and child recruitment by the Karuna group, Jan. 24, 2007, p. 74 Beyler, C., Messengers of Death – Female Suicide Bombers, February 12, 2003, p. 3 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9 Human Rights Watch, Complicit in Crime: State collusion in abductions and child recruitment by the Karuna Group, Jan. 24, 2007, p. 74 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 10

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not comply and “give” a child to the movement, children risked being abducted which led to that families fled to other areas to protect their children.35 Also, since the 2002 cease-fire agreement, families were no longer as willing as before to let their children join the LTTE. In Sri Lanka children coming from a disadvantaged background have been the ones most vulnerable to recruitment by the LTTE.36 These children were orphaned, poor, came from abusive family environments, many with very few educational or vocational opportunities. Within this difficult context, many children and their families saw them joining the LTTE as an improvement in their lives since there seemed to be no other alternatives. The LTTE gave financial packages both to the children and their families.37 Another motivator to join was the many abuses carried out by the governmental security forces towards Tamil children.38 Abuses have included torture, rape, unlawful detention, execution and enforced disappearances. To fight the national army and become a hero was often invoked by the LTTE recruiters visiting schools as an incentive.39 Also, children joined in order to protect their families and communities, because they had witnessed violence committed towards a family member.40 The LTTE was very effective in its recruitment activities, which was reflected by how well organized and disciplined the organization was in itself. The families of the child soldiers were called the “Great Hero families”, and the families did not have to pay any taxes to the LTTE and they got preferential access to the services LTTE offered.41 To become someone worthy of the title “hero”, the LTTE invoked a cult of martyrdom, and the child was manipulated into joining through posters of heroes, speeches, videos and heroic songs, and the pride of mothers 35

36 37

38 39

40

41

Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 10 Human Rights Watch, Complicit in Crime: State collusion in abductions and child recruitment by the Karuna Group, Jan. 24, 2007, p. 73 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9 Human Rights Watch, Complicit in Crime: State collusion in abductions and child recruitment by the Karuna Group, Jan. 24, 2007, p. 73 Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9 Human Rights Watch, Complicit in Crime: State collusion in abductions and child recruitment by the Karuna Group, Jan. 24, 2007, p. 74: a 1993 study showed that ¼ of the children in Vaddakoddai in the north of Sri Lanka had been witnessing a family member being abused. Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9

Children Associated With Armed Forces and Armed Groups

to have their sons sent to war to die for “the cause” was taught to the children through the verses of a Tamil collection of war and wisdom poems.42 Moreover, once the child had joined LTTE, the child could no longer have any contact with his family. In 2006, Amnesty International reported that an estimated 50 children a month were recruited in the north and east of Sri Lanka.43 It is important to acknowledge the explosiveness of the situation for the future, when children fight other children from other ethnic groups as they have done in DRC. In terms of reconciliation for the future, when different children fight each other by being members of different groups, the use of children in the manipulation of ethnicity by adults will need to be addressed. In Burma/ Myanmar children fighting for the Burmese government participate in fighting different armed ethnic groups, where also children participate in the ranks of these other different ethnic groups.44 During the 20 year long armed conflict in Uganda, an estimated 20,000– 25,000 children were abducted by LRA, and about 1,500 children were still in the Lord Resistance Army (LRA) ranks and 10,000 children remained unaccounted for as of January 2007.45 Tens of thousands of other children became “night commuters”, walking long distances every night into towns to escape being abducted and then walked back home in the morning again. The UN Secretary-General appointed Joaquim Chissano from Mozambique as his Special Envoy for the LRA-affected areas in November 2006.46 The African Commission on Human and People’s Rights issued a resolution on 5 December 2005 stipulating that among the 1.8 million people who had become displaced because of the confl ict in Northern Uganda, there were “young children who are constantly trekking between their villages and towns at night to avoid abduction”.47 It further stated that it was “deeply concerned and disturbed that the LRA has committed grave human rights violations against the civilian population in particular, the mutilation of their victims, abduction of young boys into its rebel forces as child soldiers and forces the young girls into sexual slavery”, as well as welcoming the arrest

42

43 44

45 46 47

Hogg, Charu Lata, Child Recruitment in South Asian Confl icts, A comparative analysis of Sri Lanka, Nepal and Bangladesh, An Asia Programme Report, Chatham House, the Coalition to Stop the Use of Child Soldiers, 2006, p. 9 Amnesty International, Report 2007, The State of the World’s Human Rights, Sri Lanka, 2007 Human Rights Watch, Burma: Use of Child Soldiers Continues Unabated, HighLevel Government Committee Fails to Combat Recruitment of Children, September 2006, p. 1 Save the Children, News: Uganda, 22/01/2007 United Nations, Security Council, Letter Dated 30 November 2006 From the Secretary-General to the President of the Security Council, S/2006/930, 1 December 2006 The African Commission on Human and People’s Rights, ACHPR/ Res.94 (XXXVII) 05, Resolution on the Human Rights situation in Uganda, 5 December, 2005

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warrants of leaders and commanders of the LRA by the International Criminal Court.48 In Colombia, the academic group “El Observatorio Sobre Infancia” at the Universidad Nacional has been studying the reality of the children and youth who are affected by armed conflict.49 El Observatorio has been doing this together with the International Organization for Migration (IOM) with funding from USAID and in collaboration with Corporacion Macando y Punto de Luz, and they have worked to understand the situation for children and youth during the armed conflict in Colombia. Professor Duran Strauch of “El Observatorio” says that it is difficult to establish the exact number of children and youth associated with the different armed groups, because the numbers are complicated to analyze and there are several social and political factors that need to be weighed in.50 This reflects the gravity of the vulnerability that children and youth experience during the conflict. The official Colombian number by the Defensoria del Pueblo was 6,000 children registered to be associated with different armed groups in 2006, while Human Rights Watch gave the number of 11,000 children.51 However, the number of 11,000–14,000 has also been mentioned.52 In addition, there are many children under 18 years that are members of the urban militia groups where in Medellín, the Defensoria del Pueblo estimated in 2006 the number to be 7,000– 10,000.53 There are various reasons why children and youth in Colombia would chose to voluntarily join the different armed groups as opposed to being forcibly recruited. The reasons range from economic reasons, poverty, lack of work opportunities, liking of weapons, the search of status or recognition, friendship and other relationships.54 Some are motivated by revenge, and some leave home 48 49

50

51

52

53 54

The African Commission on Human and People’s Rights, ACHPR/ Res.94 (XXXVII) 05, Resolution on the Human Rights situation in Uganda, 5 December, 2005 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, p. 187, in Ministerio de la Protección Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, p. 187, in Ministerio de la Protección Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006 Duran Strauch, E., Impacto de la participación en los grupos armadas sobre la salud de los adolescentes, p. 187, in Ministerio de la Protección Social, Informe Especial; sobre Violencia contra la Infancia en Colombia, 2006 Thomas, V., Overcoming lost childhoods, Lessons learned from the rehabilitation and reintegration of former child soldiers in Colombia, Y Care International, January 9, 2008 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 4 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 4

Children Associated With Armed Forces and Armed Groups

because of abuse and problems at home, and another significant factor is that many children and youth have parents and relatives who have links to the different armed groups.55 The majority of the children and youth that join come from “dysfunctional families”.56 Studies show that every child and youth studied had already become sexually active, and many use different kinds of contraceptives. Also it has been shown that 70 per cent use psychoactive substances like alcohol and cigarettes, 14 per cent engage in marijuana use and 8 per cent in cocaine use.57 In the context of the Colombian conflict where kidnappings are common, several children have taken part in kidnappings and it has been on their lot to care for those who have been kidnapped.58 Further children have also taken part in murders and massacres, apart from engaging in combat. 14.2.

The Paris Principles and Paris Commitments on Children Associated With Armed Forces and Groups

With regards to child soldiers, children associated with armed forces and groups, there have been several initiatives to develop a framework to help all actors including practitioners, international organizations and agencies, NGOs and governments to identify who such children are, and how to provide assistance to these children at all stages from prevention to reintegration, as well as how to ensure that the rights of these children are respected. The Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa (Cape Town, 27–30 April 1997) define a child soldier as:59 A child soldier is any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms. 55 56 57 58 59

Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 4 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 4 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 4 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 5 The Cape Town Principles and Best Practices is the result of the NGO working group on the Convention of the Rights of the Child and UNICEF symposium in Cape Town, South Africa from 27 to 30 April 1997, UNICEF in Emergencies, Children and armed confl ict, p. 2, 3 of 4, 2006

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It was UNICEF and the NGO Working Group on the CRC that convened a regional symposium on child soldiers where the Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa were adopted, and they were the first framework concerning child soldiers.60 The symposium brought together experts and different partners to develop strategies to prevent the recruitment of children into armed forces and groups, to establish 18 years as the minimum age for recruitment, and to demobilize and reintegrate child soldiers.61 As a result of this symposium, the use of “children associated with armed forces or groups” became the terminology to be used instead of “child soldiers” as it was more inclusive and more correctly described this practice.62 The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups of 2007, the Paris Principles, build upon the Cape Town Principles, by providing very detailed principles that aim to guide all actors in the prevention of children being recruited in the first place, and in the demobilization and provision of assistance to children so that they are able to reintegrate into their communities.63 It was UNICEF that initiated a reassessment of the Cape Town Principles because there was a great need to update the Principles, for reasons such as developments in international law, like making the recruitment of children under 15 years a war crime in the Rome Statute of the ICC. Also, the experience and knowledge gathered since 1997 had resulted in a much more community-based and inclusive approach. At the same conference that created the Paris Principles, the ministers and representatives adopted the Paris Commitments in which they committed themselves “[t]o make every effort to uphold and apply the Paris principles … wherever possible in our political, diplomatic, humanitarian, technical assistance and funding roles and consistent with our international obligations”.64 In the Commitments the representatives commit themselves to view children associated with armed forces and groups “primarily” as victims, and not as perpetrators. In 2007, 59 governments supported the Commitments, and at the first ministerial follow-up to the Paris Principles and 60

61 62

63 64

Office of the SGSR-CAAC and République Française, Ministerial Follow-up Forum to the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups, 29th September 2009, and UNICEF in Emergencies, Children and armed confl ict, p. 2, 3 of 4, 2006 UNICEF in Emergencies, Children and armed conflict, p. 2, 3 of 4, 2006 Office of the SGSR-CAAC and République Française, Ministerial Follow-up Forum to the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups, 29th September 2009 The Paris Principles, Principles and guidelines on children associated with armed forces or armed groups, February 2007, p. 4 The Paris Commitments, Consolidated Version, The Paris Commitments to protect children from unlawful recruitment or use by armed forces or armed groups, 2007, p. 2

Children Associated With Armed Forces and Armed Groups

Commitments in 2008, 76 governments supported them.65 At a second follow-up in 2009, one issue discussed was specifically the need for additional funds for the DDR process of children, especially with regards to prevention and reintegration, and monitoring and reporting of whether the different parties comply with their obligations.66 The Principles have the following purposes to guide interventions:67 1.11.1 To prevent unlawful recruitment or use of children; 1.11.2. To facilitate the release of children associated with armed forces and armed groups; 1.11.3. To facilitate the reintegration of all children associated with armed forces and armed groups; 1.11.4. To ensure the most protective environment for all children.

In terms of definitions, the Principles use the following terminology:68 2.0 2.1

65

66

67 68

Child – refers to any person under 18 years of age in accordance with the Convention on the Rights of the Child. A child associated with an armed force or armed group – refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.

2.2

Armed forces – refers to the armed forces of a State.

2.3

Armed groups – refers to groups distinct from armed forces as defined by Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Office of the SGSR-CAAC and République Française, Ministerial Follow-up Forum to the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups, 29th September 2009 Office of the SGSR-CAAC and République Française, Ministerial Follow-up Forum to the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups, 29th September 2009 The Paris Principles, Principles and guidelines on children associated with armed forces or armed groups, February 2007, p. 6 These definitions are not complete, but for the purposes of this paper these definitions will be used here; The Paris Principles, Principles and guidelines on children associated with armed forces or armed groups, February 2007, p. 7

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2.4

Recruitment – refers to compulsory, forced and voluntary conscription or enlistment of children into any kind of armed force or armed group.

… 2.9

Formal DDR process – is the formal and controlled discharge of active combatants from armed forces or other armed groups. The first stage of demobilisation may extend from the processing of individual combatants into temporary centres to the massing of troops in camps designated for this purpose (cantonment sites, encampments, assembly areas or barracks). The second stage of demobilisation encompasses the support package provided to the demobilised (adults), which is called reinsertion.

UNICEF has identified five priority areas regarding the Paris Principles and the Paris Commitments, and they are the prevention of recruitment, the application of a rights-based approach to release and demobilization, ensuring sustainable reintegration of children, addressing the specific situation of girls and building the capacity of national justice mechanisms.69 UNICEF has also stressed that children that have been recruited and used by different armed groups and forces are to be viewed as victims of violations against international law. This means that no child should be prosecuted for only having been a member of an armed group, and when prosecutions are taking place, appropriate international standards of juvenile justice should be applied. Moreover, UNICEF has pointed out that in terms of ending the recruitment of children into armed groups and forces, the focus has been on promoting judicial and political accountability, but that the international community needs also to investigate the social factors leading to recruitment in the first place.70 The Paris Principles and Commitments were UNICEF driven and UNICEF chose to go to France to help them develop these Principles and Commitments.71 Since the Cape Town Principles did not have enough support of the UN member

69

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Unicef, Ms. Hilde F. Johnson, UNICEF Deputy Executive Director, Address to the Ministerial Meeting on October 1, 2007 on children and armed conflict: Follow-up meeting to the Paris Principles and Paris Commitments of February 2007; Conference Room 4, 10.00 am, p. 2 and 3. Between February and October 2007, the Paris Principles and Paris Commitments have been implemented into two new agreements to protect children, one with armed forces in Chad and one with armed groups in Darfur. UNICEF, Ms. Hilde F. Johnson, UNICEF Deputy Executive Director, Address to the Ministerial Meeting on October 1, 2007 on children and armed conflict: Follow-up meeting to the Paris Principles and Paris Commitments of February 2007; Conference Room 4, 10.00 am, p. 4. Fabien Fieschi, former Expert at the UN SC working group on CAAC, Interview, France’s Mission to the UN, New York, May 2009

Children Associated With Armed Forces and Armed Groups

states, the UNICEF asked France to help them develop these new Principles, and therefore France took on the role to have the conference/forum together with UNICEF where the outcome was the Paris Principles and Commitments. 14.3.

The Demobilization, Disarmament and Reintegration Programmes – The DDR Processes

Several countries have created programmes that aim to demobilize, disarm and reintegrate children, so-called “DDR programmes”. The focus has been on the demobilization and disarming phase, by which the success of the programme has been mostly measured by how many weapons that have been accounted for.72 The reintegration phase, where former militaries are to reintegrate back into their communities and civilian lives, are not as well organized. One of the problems with the DDR programmes has been that they do not sufficiently address the particular situation of girls, even though there are estimates that about 40 per cent of children associated with armed groups are girls. Because of the military focus of the DDR programmes, many girls choose not to take part, because these programmes do not adequately address their situations.73 One important lesson regarding demobilization and reintegration of children is that it can be achieved during and on-going conflict.74 The Paris Principles 3.4.0 confirms this and states that it is in the best interest of the child making reference to the CRC Article 3(1) in that: The release of children from armed forces or armed groups, their reintegration and prevention of recruitment and re-recruitment require priority attention. Actions in this regard must not be dependent or contingent on or attached in any way to the progress of peace processes. All measures to assure the release of children, their protection and the prevention of the recruitment of children shall be determined by the best interests of such children.

Furthermore, the Paris Principles 3.11 under the heading “Children’s right to release from armed forces or armed groups” clearly stipulates that: The unlawful recruitment or use of children is a violation of their rights; therefore preventive activities must be carried out continuously. The release, protection and reintegration of children unlawfully recruited or used must be sought at all times,

72 73 74

Save the Children, Forgotten Casualties of War: Girls in Armed Conflict, February 2006, p. 1 Save the Children, Forgotten Casualties of War: Girls in Armed Conflict, February 2006, p. 2 Save the Children, Going Home: Demobilising and reintegrating child soldiers in the DRC, 28/02/2003

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without condition and must not be dependent on any parallel release or demobilisation process for adults.

In the case where no formal DDR process is in place for adults, the Paris Principles 3.12 states that this is not to be used as a hindrance to find ways to release children who have been recruited and used by armed forces and groups.75 In order to get children released from such groups, separate negotiations that are not related to any security reform or any other negotiations taking place should in such cases be undertaken according to the Principles. Save the Children has identified four important lessons regarding demobilization and reintegration of children which are:76 – – –

–

the need to stress a community-based approach to reintegration; to mobilise for prevention of recruitment and responding to child protection concerns; to prepare for the return of the child soldiers into their families and communities – including analysing where children may face particular protection and security issues; to identify appropriate interventions and partners to support the socio-economic reintegration.

Save the Children has issued some recommendations on how to approach armed groups that have recruited children in their ranks, they include:77 – – – – –

Identifying armed groups, sensitising, lobbying for the release and preventing (re-) recruitment of children. screening, documentation and information sharing the rehabilitation of child ex-combatants family and community preparation and reunification post- reunification. Care and support.

The first official programme that acknowledged the specific needs of children associated with armed forces as being able to be part of a demobilization, disarmament and reintegration process was in Sierra Leone in 1999.78 The Lomé Peace Accords of July 1999 included a passage recognizing the needs of these children 75 76 77 78

The Paris Principles, Children’s right to release from armed forces or armed groups, 3.12 Save the Children, Going Home: Demobilising and reintegrating child soldiers in the DRC, 28/02/2003 Save the Children, Cross-border DDRRR focus on cross-border demobilisation and reintegration: looks at patterns of child recruitment in DRC since 1994, 09/11/2004 The Coalition to Stop the Use of Child Soldiers and UNICEF, Guide to the Optional Protocol on the Involvement of Children in Armed Conflict, December 2003, p. 19

Children Associated With Armed Forces and Armed Groups

to be part of such a programme. The DDR process in Sierra Leone began in 1998 and ended in 2001, and UNICEF was the lead agency of the programme. However one of the key lessons was that it was very difficult to reach and include the girls who had been associated with the armed groups.79 The girls were only 7.7 per cent of all the children demobilized, even though girls constituted about 50 per cent of the children associated with the armed forces.80 Other estimates show that there were about 12,000 girls that had been associated with the armed forces in Sierra Leone, of which 506 girls were part of the formal DDR, which was about 4 per cent.81 One issue was that at first the DDR programme was very narrowly defined and required the handing in of an automatic weapon as a condition to be able to participate in the DDR programme, as well as being able to show that one could disassemble and reassemble the weapon.82 One consequence of this limited policy was that the military leaders of those girls that were associated with armed groups and who had a weapon took the weapons from them so that they would not be able to participate in the programme.83 One of the main reasons as to why girls did not come forward was that the girls were very fearful of coming forward due to the control of their commanders. The former girl child soldiers in Sierra Leone were not given much assistance with demobilization, and while the exact figure of how many girls were part of the armed groups does not exist, one study carried out by CCF/Sierra Leone found that in the districts surveyed RUF had abducted at the minimum one girl from each household in certain villages, of which there were girls that did not come back home again or the families did not hear from them again.84 The former girl child soldiers did not receive much assistance if any, and this needs to be seen in the context that many of them had children while with the armed groups, 79 80

81

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83

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The Coalition to Stop the Use of Child Soldiers and UNICEF, Guide to the Optional Protocol on the Involvement of Children in Armed Conflict, December 2003, p. 19 The Women’s Commission on Refugee Women and Children, Youth Speaks Out: New Voices on the Protection and Participation of Young People Affected by Armed Conflict, 2005, p. 13 Shereef, C. A. (CCF/Sierra Leone), Davidson J. (CCF International Program Group), Hayes M., (CCF/West Africa), Kostelny K. and Wessells M., (CCF International Program Group), The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 1 Shereef, C. A. (CCF/Sierra Leone), Davidson J. (CCF International Program Group), Hayes M., (CCF/West Africa), Kostelny K. and Wessells M., (CCF International Program Group), The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 1 The Women’s Commission on Refugee Women and Children, Youth Speaks Out: New Voices on the Protection and Participation of Young People Affected by Armed Conflict, 2005, p. 13 Shereef, C. A., Davidson, J., Hayes, M., Kostelny, K., and Wessells, M., The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 2

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as well as that many of them had physical problems such as stomach pains and skin diseases, and reproductive health challenges, including sexual transmitted diseases, for which they received no treatment. Some of their most difficult and painful experiences came in the post-conflict phase, as they reported that “[m] ost painful was their lack of community acceptance” and this was more stressful “than the traumatic experiences of the war per se”.85 The girls were stigmatized, became physically and sexually harassed and their suffering from many diseases was another reason for not being accepted by the community. It was also found that the girls at first when they returned to their families were not respectful of others, did not want to help their families and they behaved aggressively and were disobedient, which scared their families and were reasons as to why the girls were at first rejected by them.86 Furthermore, because of them having been former child soldiers and their experiences during that time, they were not seen as being able to marry. In some cases the girls had been married before becoming child soldiers, and their husbands many times refused to welcome them back, and when they did, and if the girl had had a child while with the armed group, that child was many times not accepted by the husband and could not come and live with the mother.87 While as it was noted, culturally children from another marriage many times are not accepted by a new husband, these cases further are examples of how the so called “rebel children” are being stigmatized. 14.3.1.

The DDR Process in the Democratic Republic of Congo and CONADER

The civil war in DRC ended with the signing of the Global and All-Inclusive Peace Agreement in South Africa in 2002.88 A transitional power-sharing government was established in June 2003. The power-sharing government called 4+1 was an arrangement that was comprised by one president and four vice-presidents. One main purpose of the peace agreement included to have a DDR programme to reintegrate about 150,000 former fighters back into civilian life of up to an estimated 330,000 fighters, of which about 30,000 were thought to be children

85

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Shereef, C. A., Davidson, J., Hayes, M., Kostelny, K., and Wessells, M., The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 3 Shereef, C. A., Davidson, J., Hayes, M., Kostelny, K., and Wessells, M., The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 3 Shereef, C. A., Davidson, J., Hayes, M., Kostelny, K., and Wessells, M., The Reintegration of Formerly Abducted Girls and Girl Mothers in Sierra Leone: Sealing the Past, Facing the Future, 2006/2007, p. 3 Amnesty International, DRC: DDR and Reform of the Army, January 2007, AFR 62/001/2007

Children Associated With Armed Forces and Armed Groups

under 18 years.89 The rest of the fighters were to be integrated into one unified national army, called the Forces Armées de la République Démocratique du Congo (FARDC). The governmental agency CONADER, Commission Nationale de Désarmament, Demobilisation et Réinsertion, was established to run the DDR programme for both adults and children, and it had an office in all provinces in the country.90 The national DDR programme was comprised of the National DDR Commission, CONADER, and a national DDR work plan (NDDRP), and in order to have this programme carried out for both the adults and children about USD 200 million was provided in the form of various grants.91 The military integration process has been called the “brassage” process. The whole process has been riveted by serious problems and delays, and it was carried out in a context of continuous human rights violations and with very little control of the different armed groups.92 CONADER together with UNDP, before the entire national DDR programme was put in place in all regions, carried out the first DDR programme in the district of Ituri as it had been one of the most conflict-affected areas and also importantly since not any of the armed groups in that region had signed the Global and All-Inclusive Peace Agreement.93 During the DDR process, the majority of the senior commanders were against the disarmament programme because they wanted to hold on to their power and protect their economic interests. However, at the time there was much support from the 89

90 91

92 93

Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 11: the 11 November 2004 Law on the General Organization of Defence and the Armed Forces, identifies the armed forces and armed groups that are to take part in the DDR programme and to be integrated into the FARDC. They include: the Forces Armées Congolaises (FAC), the former government army, the armed groups: the Rassemblement Congolais pour la Démocratie (RDC), Congolese Rally for Democracy-Goma, the Mouvement de Libération du Congo (MLC), Congo Liberation Movement, the Rassemblement Congolais pour la Démocratie/ Mouvement de Libération (RCD/ML), Congolese Rally for Democracy/Liberation Movement, the Rassemblement Congolais pour la Démocratie/National, Congolese Rally for Democracy/National, and the Mayi-Mayi “Patriotic Resistance” fighters, the ex-Forces Armées Zairoises (ex-FAZ), the government army of former President Mobutu, les ‘Tigres’ (the ‘Tigers’), and other military and paramilitary groups that the government would decide about. These armed groups consist of the Ituri armed groups and the Mayi-Mayi groups of the Katanga province. Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 12 This sum did not include for the Special Projects, DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 9 Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 8 Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 14

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different militia group members who wanted to participate in the disarmament process, but were many times hindered by their senior commanders from joining.94 Many of those who publicly stated that they were for joining such a programme were harassed, killed and/or tortured.95 The prospects of being able to reintegrate back into civilian life with a job and an income initially attracted the different militia members in DRC. When the voluntary disarmament programme ended in June 2005, 15,811 militia men had entered the DDR programme and were processed through different reception centres.96 Of those 15,811, 4,525 were children, and merely 780 former militia members wanted to integrate into the national army. It was the World Bank that through an IDA grant and a multi-donor trust fund funded the programmes of CONADER, however since CONADER suspended many of its activities because of lack of funding in 2006, it was left to different child protection agencies like UNICEF and Save the Children UK to assist in reintegrating children back to their communities.97 CONADER was to coordinate and supervise the DDR activities, which it did not manage to do, and during the existence of CONADER this failure led different agencies that were to implement the programmes adhering to their own planning which was carried out on an ad hoc basis and information was not shared in a coordinated fashion.98 The transitional government of DRC established the Emergency Demobilization and Reintegration Program (EDRP) to be able to work with child DDR before a national DDR institution and programme was established. To assist, the World Bank created the Special Projects in 2003 for a two year period within the MDRP secretariat to fund this programme.99 The Special Projects were created to provide for special groups that were not included in the National DDR Programme and for providing programmes before national programmes were implemented. Those special groups included child soldiers and disabled

94 95 96 97

98 99

Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 16 Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 15 Amnesty International, DRC: DDR and Reform of the Army, 25 January 2007, AFR 62/001/2007, p. 16 IRIN In-Depth, Youth in crisis: Coming of age in the 21st century, North-Kivu, DRC: Living on the fringes of society: what future for young ex-combatants?, p. 3, February 2007 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 6 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 1 and p. 31: the Multi-Donor Trust Fund, MDTF, Donors are Belgium, Canada, Denmark, European Community, France, Germany, Italy, Netherlands, Norway, Sweden and the United Kingdom.

Children Associated With Armed Forces and Armed Groups

combatants.100 Within that timeframe the Special Projects estimated that 20,291 children would participate in the programme. Four agencies specialized in child protection were to carry out the projects funded through IDA (International Development Association) grants from the World Bank. These agencies were the Belgian Red Cross, the NGO group that included CARE International, the International Foundation for Education and Self-Help (IFESH) and the International Rescue Committee (IRC), Save the Children-UK, and UNICEF.101 The work of CONADER was to be longer-term and an IDA programme and funded through MDTF (Multi-Donor Trust Fund) as part of the national programme.102 One major issue regarding the DRC child DDR process was that there was not any common standards among the implementing agencies created for the “special groups” category.103 The special groups category included the self-demobilized children, girls, and the group between 16 to 18 years of age. Each agency addressed these groups differently, and not all agencies had worked with all of these children, for instance some had not included the self-demobilized children at all in their programmes. Furthermore, there was no documentation by any of the agencies with regards to the children dropping out of the formal DDR programme.104 One issue regarding the girls associated with the armed forces or groups in DRC has been that a girl does not look upon herself as a child soldier, which has been a hindrance to being able to get in touch with them.105 Instead a girl might see herself as a wife or a cook which is better for them, as stigmatization of these girls is widespread, and has been one reason as to why girls do not come forward to get assistance together with the fact that the different child agencies have not been successful in making contact with the girls.106 The main task of UNICEF in DRC was to build up a national programme and to provide CONADER with “skills and tools for national coordination and supervision” regarding the DDR of children, and to build institutional capacity 100 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 10 101 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 10 102 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 10 103 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 15 104 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 19 105 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 15 106 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 15-16

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by “training and coaching of CONADER staff ”.107 UNICEF has been working with the DDR of children in DRC since 1997, and in December 2001 President Joseph Kabila for instance asked UNICEF to help demobilize about 300 children.108 At the time, the DRC institution the National Bureau of Demobilization and Reintegration and a partner group kept a CTO (Centre transitoire et orientation) where these 300 children went, and UNICEF being part of this partner group was the one agency alone that provided funding.109 UNICEF has provided three different reintegration programmes for children in DRC:110 1) 2) 3)

Combination of socio-economic with educational reintegration; Vocational training for community reintegration; Education.

The follow-up of the children who had participated in the DDR programmes conducted by the UNICEF by 2007 was solely to verify if the families of the children had welcomed them back.111 This has been in the context of a continuing armed conflict, with a real risk of re-recruitment that many children have had to deal with. On 3 April 2007, Laurent NKunda entered into agreement to end the conflict with the government’s troops at a ceremony in Sake in North Kivu.112 On the way to Sake there was a CONADER-DDR programme office that catered to both the demobilization of adults and children. Save the Children was present, and those child soldiers that Laurent Nkunda had were handed over to Save the Children. Save the Children brought the children to a local CTO, and already one month afterwards the children had been moved to another place. CONADER’s aim was to have a social and professional reintegration of adult ex-combatants who wanted to demobilize and of children who had been separated from armed forces or groups, as well as the creation of work opportunities for ex-combatants to prevent re-recruitment.113 CONADER’s activities were suspend107 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 3 and 11 108 UNICEF, Services for recovery and reintegration, November 27, 2007, www.unicef. org 109 UNICEF, Services for recovery and reintegration, November 27, 2007, www.unicef. org 110 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 29 111 DAI, Independent evaluation of special projects for child soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 31 112 Visit to Sake, North Kivu, DRC, May, 2007 113 Irin In-Depth, Youth in Crisis: Coming of age in the 21st century, North Kivu, DRC: Living on the fringes of society: what future for young ex-combatants?, p. 3, February 2007

Children Associated With Armed Forces and Armed Groups

ed by July 2006 because of insufficient funds.114 One example of CONADER’s lack of effectiveness was the time it took to get started in the North Katanga province, which had the consequence that the armed combatants could not begin the formal DDR programme.115 As a consequence the adult ex-combatants, the child soldiers as well as the local population did not understand the process and got aggravated about it. The local people could not comprehend why there was a difference between the DDR programmes for children and for the adult combatants. At times it has taken taken over a year for a child to reunite with his or her family.116 Child protection officers in North Kivu have stated about child soldiers that “[a]s soon as the children have a chance, they flee”.117 As an example in 2007 in Mogonga in North Kivu 33 children fled from armed groups. They were taken by Save the Children to a transit centre, CTO, in Goma. At the transit centre their situation is evaluated, and one establishes when and where they were separated from their families. In order to be able to reunify the children with their families, photographs are taken of the children to trace and identify their parents. The photographs are set up in local markets, and different locations in the local communities. Once the parents are found, and the child is to return to her/his family, Save the Children sends a recognition team together with the child to the family and the community to make sure that it is safe enough to return.118 The child is always part of the reunification process, in that the child goes with a recognition team so that he can ask questions and listen and see for himself that it is safe enough to return home. The child is never sent back without this process. When there is no family to go back to because of a death in the family or when it is not possible to find the family because they have had to flee, or when the child does not want to go back, the child goes to a foster family.119 If the child does not return to his family, one advertises for a foster family. A foster family is examined to determine whether the family has enough space for another child. The organizations look for people who already have strong families, and the support needed for the child is discussed. Because the children have been child soldiers the children have special needs that need to be uncovered, and “[t] he trauma and the experiences connected to each child need to be understood

114

115 116 117 118 119

Irin In-Depth, Youth in Crisis: Coming of age in the 21st century, North Kivu, DRC: Living on the fringes of society: what future for young ex-combatants?, p. 3, February 2007 DAI, Independent Evaluation of Special Projects for Child Soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 65 DAI, Independent Evaluation of Special Projects for Child Soldiers in the Democratic Republic of Congo, Draft final report, May 10, 2006, p. 55 Former Child Protection Officer, Goma, North Kivu, DRC, April/ May 2007 Former Child Protection Officer, Goma, North Kivu, DRC, April/ May 2007 Former Child Protection Officer, Goma, North Kivu, DRC, April/ May 2007

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and addressed”.120 Not all children have exactly the same needs or experiences which also needs to be recognized. The foster families in North Kivu were paid USD 30 every two weeks; USD 60 at once is a lot and could be spent on other things, but USD 30 is not enough money to spend on other things than food and other supplies for the child. At one CTO in Goma, the children are organized into different “families”.121 There are around 30 children in every family depending on how many children there are at the centre at a one single time. The number of children varies, because children come and go all the time. Girls sleep separately from boys. The children are at the transit centres only for a shorter period of time, no longer than three months. While schooling is provided, one does not want to offer too an attractive schooling because then some children do not want to go home again. At the centres, different games, soccer and drawing are provided for the children and there is someone at the centres that organizes these activities. All the people working in the CTOs in DRC are Congolese. To have children sent first to a CTO is not undisputed. Some argue that it would be better for the child to go directly to foster families and then to be reunified with their families as it would be a better way to create normality and stability for the children.122 The conditions in a CTO are harsh, and since the children come to these centres straight from an armed group the children are also traumatized when they arrive. The conditions in a CTO are not optimal for healing; they are really only the first stop for the protection of the child. Save the Children works with both formal and informal demobilization.123 With a formal demobilization, the warring party has made a formal decision to demobilize and disarm its soldiers. Save the Children is not invited, however MONUC (now MONUSCO) will be informed of a formal demobilization and contacts Save the Children. That has been the way Save the Children gets to know about the demobilization and the organization then goes to the place where the demobilization will take place. Save the Children identifies the child soldiers by asking the children about their ages and thus identifies them out. After Save the Children has identified the children, they get registered and then they finally demobilize by handing over the uniforms to the commanders of the armed group they belonged to. After this process of identifying, registering and demobilizing, Save the Children brings the children to a transit centre, CTO, which is the centre that takes care of children associated with armed forces during a period of no more than three months. While at the transit centre, a reunification process with the family begins, and families are traced so that the children can get back to their families. In cases where families cannot be traced, they might have died, 120 121 122 123

Former Child Protection Officer, Goma, North Kivu, DRC, April/ May 2007 Visit to a CTO, Goma, North Kivu, DRC, April/May 2007 Former Child Protection Officer, Goma, North Kivu, DRC, April/May 2007 Former Child Protection Officer, Goma, North Kivu, DRC, April/May 2007

Children Associated With Armed Forces and Armed Groups

or where families cannot take in the child for whatever reason, the child can go to a foster family. With informal demobilization the children flee from the armed group they belonged to. There are contact centres and contact persons located in different towns in North and South Kivu that the children know about, and they turn to these places if they need to. Save the Children informs about these contact centres and persons out in the provinces and the villages so that people will know about them, and so that parents can inform their children about these places. These centres are places where a child can turn to if a child decides to flee or has escaped and needs help. For instance a contact person called the Save the Children’s child protection officer one evening, and said that two children had escaped from an armed group and had come to him.124 The contact person said that the children were afraid and that he was as well. Because it was in the evening the child protection officer from Save the Children Child then called the child protection officer at MONUC and informed her about the situation. Then the MONUC child protection officer made calls within MONUC to find out who were closest at hand to the place where the children were. Within one hour she called back the Save the Children child protection officer and informed him that a MONUC vehicle was on its way to the children, and within another hour she called again and said that MONUC had the children and would bring them to Goma. Since it was late in the evening the children stayed at a MONUC compound in Goma during the night, and the next day Save the Children brought the children to a CTO. At such times, Save the Children cannot give back the uniforms to the group, because then the group would know that the child has escaped. In 2007 the renewal of the conflict between Laurent Nkunda’s groups and the governmental forces, the FARDC, even as they had entered into an agreement in April 2007, made the DDR process in North Kivu very problematic. By September 2007, an estimated 240,000 people had become internally displaced due to the renewal of fighting and more armed groups coming into the conflict since January 2007.125 There was another increase in fighting in 2009, and continuous fighting has led to children having been recruited and/or re-recruited as child soldiers. The work with DDR of children and adults continues in DRC at the time of writing as the conflict continues, and it is necessary to take into account that in this context armed groups from DRC have been listed in Annex I in the annual report (the latest 2011) on children and armed conflict by the UN Secretary-General since the first such annex in 2006, and thus they really do belong among the “persistent perpetrators.” 124 Visit to Goma, North Kivu, DRC, April/May 2007 125 Amnesty International, Democratic Republic of Congo (DRC): Escalating violence in North-Kivu deepens risk of mass ethnic killings, AFR 62/014/2007, 10 September 2007, Press Release, www.amnesty.org, and Refugee International, Democratic Republic of the Congo: NGOs Ignoring Crisis in North Kivu, July 18, 2007, Bulletin, www.refugeeinternational.org

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While an important lesson is that demobilization can be carried out in an on-going conflict, there are still limits to demobilization. Demobilization also creates a lot of insecurity in environments with few work opportunities and many able ex-soldiers, in a context of easy availability of weaponry. In DRC a very pressing issue with the DDR process has been that there has not been any independent verification of the disarmament process.126 The different military units are suspected of having left behind a great number of weapons in the rural areas, and during the DDR process no heavy weaponry was turned in by the different fighters. 14.3.2.

Colombia and the Children Associated With Armed Forces and Groups The younger generation does not see another future than joining the military service and afterward ending up with the guerrilla.127 – La Defensora Comunitaria de la zona de Teteye, municipio de Puerto Asis

Many young people do not have an understanding of the politics of the armed conflict in Colombia and the political differences between the governmental army, the paramilitary groups and the guerrillas.128 Also in some families different family members belong to different armed groups. For example, as one boy commented: “My father was in the FARC (leftist guerrilla) and my uncle killed him, the brother of my old man, because he was in the AUC (rightist self-defence groups). I have several brothers in the AUC and another one in the ELN (leftist guerrilla). I do not want to return; I am tired of this life, and besides, if I do return I would have to fight with my own brothers.”129 This is also, as will later be seen, one reason as to why it is impossible for child soldiers that take part in the official governmental DDR programmes to demobilize and be re-integrated back home. The children that are being recruited by either FARC or the paramilitary groups need to prove their loyalty to their commanders, and the way to do that is

126 Amnesty International, DRC: DDR and reform of the army, AFR 62/001/2007, January 2007, p. 28 127 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia, Impacto del confl ict armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 11, Putchipu, enero-junio, 2007, boletín 15-16 128 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia, Impacto del confl ict armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 11, Putchipu, enero-junio, 2007, boletín 15-16 129 Duran Strauch, E., The rights of the children in the context of the armed conflict in Colombia, 2006, p. 1

Children Associated With Armed Forces and Armed Groups

to kill either an enemy soldier or their fellow child recruits accused of wrongdoing including friends. Bernarndo was a street child when he at the age of seven became a member of a paramilitary group:130 They give you a gun and you have to kill the best friend you have. They do it to see if they can trust you. If you don’t kill him, your friend will be ordered to kill you. I had to do it because otherwise I would have been killed.

Another boy recruited by the paramilitaries said about the time he was initiated into the group:131 I was really scared at first. The first test they give you is to kill a man, a guerrilla. Bring me so and so, they say, so that he can learn. And they bring you and tell you to kill the man. If you don’t kill him, they will kill you. They used to bring guerrillas captured in Caquetá to the camp, and tie them up by the hands and legs and a man would come up with a chainsaw, and slice them piece by piece. Everybody could watch. I must have seen it ten times. It’s part of the training.

FARC child soldiers must watch or execute the punishment of other guerrillas who are members of the same group, and who have either done something against the rules of FARC or those who try to escape from the group.132 In one case a deserter of the group had been seen in a town by the FARC guerrilla, and as a result the FARC ordered a child soldier, Mauricio, to go and get him and bring him to the group to be punished. Mauricio had not killed anyone after having been a member for four years in the FARC-EP and was now to prove that he could:133 We went to his house and picked up him, then brought him back to the camp. There, they held a war council. He had a defender, but everyone knew what the verdict was going to be. It was automatic. There was no real possibility that he would escape shooting. His crime were “theft from the movement and desertion”, the most serious crimes of all. In the war council, no one voted to save him. After the council, we went and dug his grave. Then we brought him to the side of the grave. He closed his

130 Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation child soldiers to participate in violence, April 16, 2008, Number 1, p. 5 131 Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation child soldiers to participate in violence, April 16, 2008, Number 1, p. 6 132 Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation child soldiers to participate in violence, April 16, 2008, Number 1, p. 6 133 Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation child soldiers to participate in violence, April 16, 2008, Number 1, p. 6

of of of of

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eyes, and I shot him in the head. I had never executed anyone before, but this time I had to do it. If you don’t do it, they’ll kill you.

It is important to keep in mind that the children are on their own and that they are being separated from their families and any familiar circumstance. They know that if they would want to leave, they cannot do that. They know from experience that if they would try to leave, they would be killed if found out. Many also believe that they will never be released, so they are left to please their commanders by doing what they are ordered to do, including killing other human beings.134 The children live in an environment where they are forced to participate in grave human rights abuses and in killings, and where there is no way to turn to for help:135 I felt happy afterwards. I wanted to please the commanders. Because if you say no, they’ll kill you. [Laidy, 13 years of age after having shot a policeman in the head. She was a member of a paramilitary group.]

14.3.2.1.

The Demobilization Regime for Combatants in Colombia

Of the three different illegal armed groups operating in Colombia, the FARC, ELN and the paramilitary groups, only FARC has not entered into formal negotiations with the government to demobilize its combatants. Ejercito de Liberacion Nacional, ELN, entered into negotiations with the government with the purpose of demobilizing and disarming its group in February 2006, and the Colombian government stated in October 2006 that it intended to start formal peace negotiations with the ELN.136 However the ELN as a group has not demobilized and the group still uses child soldiers. The Vice-President of Colombia has stated that the government is ready to negotiate with FARC under certain conditions such as that they release child soldiers and youth soldiers.137 After about 50 years of armed conflict in Colombia, the demobilization regime of the ex-combatants including child soldiers from the two guerrilla groups, FARC and ELN, and the paramilitary groups is complicated, reflecting an evolving situation. The demobilization of all armed actors in Colombia, that is the members of guerrilla groups and the paramilitary groups, is established by Law 134 135 136 137

Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation of child soldiers to participate in violence, April 16, 2008, Number 1, p. 7 Human Rights Watch, Colombia, Backgrounders, Coercion and intimidation of child soldiers to participate in violence, April 16, Number 1, 2008, p. 7 Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 6 His Excellency Angelino Garzón, Vice-President of Colombia, Woodrow Wilson International Center for Scholars, January 26, 2011

Children Associated With Armed Forces and Armed Groups

418 of 1997 which provides the legal and collective basic framework for the demobilization of these armed actors, and under certain conditions it awards amnesty “from all criminal investigations, prosecutions and convictions to those combatants who choose to participate in individual or collective demobilization”.138 Subsequently Law 782 of 2002 extended Law 418, and the governmental Decree 128 of 2003 regulates Law 418 and Law 782 with regards to the demobilization of members of all illegal armed groups, including how the application for benefits following demobilization shall be conducted.139 Decree 128 of 2003 regulates the social, economic and legal benefits of demobilized persons, but states that legal benefits such as receiving a pardon regarding “[t]hose who are being tried for or have been convicted of crimes which, according to the Constitution, the laws, or international treaties signed and ratified by Colombia cannot receive such benefits shall not enjoy any of the benefits indicated …”.140 It is important to keep in mind that 20 per cent of the combatants (from the FARC, ELN and the AUC) that demobilized between August 2002 and July 2004 under the Law 418, Law 782 and Decree 128 regime were children.141 With regards to the demobilization of members of the illegal armed groups that could not be demobilized according to the Law 418, Law 782 and Decree 128 regime, the Justice and Peace Law, Law 975 of 2005, was created which is a complement to Law 418.142 Law 975 of 2005 “regulates the procedures to be followed for those demobilized members of illegal armed groups who had been excluded from the existing amnesty procedures and establishes judicial benefits based on their contribution to justice and reparation”.143 The purpose with the Justice and Peace Law 975 is to facilitate the peace process and the individual and collective reintegration of the members of illegal armed groups constituting the guerrilla groups and the paramilitary groups, and to facilitate the demobilization of the

138

The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http://cja.org/article.php?id=863 139 The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http://cja.org/article.php?id=863 140 Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/ Ser.L/V/II, CIDH/INF.2/07, 2007, para. 75 and footnote 127, p. 36 of 96, www.cidh. oas.org/pdf%20fi les/Colombia-Demobilization-AUC%202008.pdf 141 Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/ Ser.L/V/II, CIDH/INF.2/07, 2007, para. 78, p. 37, www.cidh.oas.org/pdf%20fi les/Colombia-Demobilization-AUC%202008.pdf 142 The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http://cja.org/article.php?id=863 143 The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http://cja.org/article.php?id=863

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members of these groups.144 According to Law 975 if the combatants truthfully reveal their past crimes, and provide reparations to victims, and a promise not to return to their criminal activities, they are eligible in exchange as incentives to receive between five to eight years reduced prison sentences and less time in concentration zones.145 The Colombian National Reparations and Reconciliation Commission (Comisión Nacional de Reparaciones y Reconciliación, CNRR) was established by Law 975. Concerning the collective demobilization according to Law 975 several requirements need to be fulfilled in order for the ex-combatants to get benefits including that the group needs to deliver all recruited minors to the Colombian Family Welfare Institute (ICBF), and that the group cannot be involved in drugtrafficking or making illegal profits.146 Furthermore, Law 975, also covers the demobilization and criminal responsibility of individuals, and the requirements for the demobilization of these individuals include to “1) provide information on or cooperate in dismantling the group to which he belonged; 2) sign a commitment document with the national government; 3) have demobilized or laid down his arms according to the terms established by the national government; 4) cease all unlawful activity; 5) turn over all proceeds from illegal activities, to benefit the victims; and 6) have not been involved in drug trafficking or making illegal profits”.147 After the declaration of a unilateral ceasefire by the Autodefensas Unidas de Colombia (AUC) in December 2002 the paramilitaries entered a demobilization programme of which only about 10 per cent were demobilized according to Law 975, while 90 per cent demobilized according to the regime of Law 418 which offered more extensive amnesties.148 Only about 2.2 per cent of the paramilitaries were expected to face trial under Law 975, which was those who already 144 Colombia, Diario Oficial 45.980, Ley 975 DE 2005 (Julio 25), Article 1, http://cja.org/ article.php?id=861, Translated by the author 145 The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http://cja.org/article.php?id=863 146 Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/ Ser.L/V/II, CIDH/INF.2/07, 2007, Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia, Para. 20, p. 56 of 96, www.cidh.oas.org/pdf%20fi les/Colombia-DemobilizationAUC%202008.pdf 147 Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/ Ser.L/V/II, CIDH/INF.2/07, 2007, Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia, Para. 21, p. 56 of 96, www.cidh.oas.org/pdf%20fi les/Colombia-DemobilizationAUC%202008.pdf 148 Footnote 26 in The Center for Justice and Accountability, CJA, Background, Colombia: The Justice and Peace Law, http//cja.org/article.php?id=863

Children Associated With Armed Forces and Armed Groups

were being prosecuted or were in prison.149 One main problem was that those paramilitaries that chose to demobilize according to Law 975 and in exchange for a truthful account of their crimes and the handover of illegally obtained assets would get reduced sentences failed to provide truthful accounts and return such assets as there was no effective mechanism in place that would ensure that they would be sanctioned for their actions.150 Colombia’s Constitutional Court amended Law 975 in 2006 after having examined the constitutionality of the Law and while it found that the Law was constitutional it also needed some changes. The Court stipulated that the paramilitaries should not be given reduced sentences if it turned out that they were lying, and established several requirements that the government agencies needed to safeguard of which one was “[t]he deposition given by those applying for benefits under this law must be complete and truthful and must include the right to learn the causes and circumstances of time, manner and place in which the crimes were committed, thereby enforcing the right to truth”.151 This led to that some paramilitary commanders gave important and useful information about their activities and other people. Also at that time the Colombian Supreme Court initiated investigations concerning links between paramilitaries and members of the Colombian Congress, which have concerned about 80 such members of which some have received convictions for these kinds of activities.152 However, most of the crimes that have been committed by these paramilitary groups will remain unresolved, as most of the demobilized AUC members were given pardons according to Decree 128 of 2003 and Law 782 of 2002, and did not demobilize according to Law 975.153 The government had treated the crimes 149 Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 7 150 Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 18, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print 151 Constitutional Court, Case D-6032, Judgment C-370/06, made public on July 13, 2006, Para. 57, p. 65, as in Inter-American Commission on Human Rights FollowUp on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/Ser.L/V/II, CIDH/INF.2/07, 2007, Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia, and footnote 5 in the Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, www.cidh.oas.org/pdf%20fi les/Colombia-Demobilization-AUC%202008.pdf 152 Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 18, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print 153 Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 17, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print

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that the paramilitaries had committed as “political crimes”, and this was a practice that the government followed until July 2007 when the Supreme Court of Colombia ruled that the crimes that the paramilitaries had committed could not be considered as “political crimes” which are the sole crimes that Law 782 of 2002 and the Constitution of Colombia award pardon for.154 Colombia’s Penal Code was changed in July 2009 by the Colombian Congress, which made it possible for the Office of the Attorney General to use the “principle of opportunity” which is a type of prosecutorial discretion “to suspend investigations against or refuse to prosecute demobilized persons”.155 There were many frauds connected to the demobilization of the AUC including that some groups were able to use stand-ins to replace the “real” paramilitaries since the identification process was so flawed, and in addition some members that were formally part of the demobilization process did not end their illegal activities. There was no functional process established that would have made it possible to identify who the paramilitaries were, and in addition, the paramilitaries were never required to give in detail information about their groups and their activities, networks and assets.156 When in 2003 the Cacique Nutibara Block from Medellín demobilized, Luis Carlos Restrepo, the High Commissioner for Peace in Colombia, reported that “48 hours before [the demobilization] they mixed in common criminals and stuck them in the package of demobilized persons”.157 According to surveys that the Permanent Human Rights Unit of Medellín’s Personería had conducted it had been revealed that 75 per cent of those claimed to have been members of the Cacique Nutibara and Heroes de Granada Block and “demobilized” had not been members of these groups.158 The demobilization of members of the Northern Bloc was flagrantly plagued by fraud where people had been recruited as stand-ins and having received training on

154

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Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 15, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 17, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 15, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print In Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 15, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print In Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 16, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print

Children Associated With Armed Forces and Armed Groups

how to act as true members of the Bloc so as to pass as real combatants and thus be demobilized, which they were.159 According to Law 418 of 1997, it is illegal for the armed forces and illegal armed groups in Colombia to recruit children under 18 years of age, and any civilian or military state authority risks dismissal if not following the Law, and members of the guerrilla groups or paramilitaries if they recruit child soldiers risk a three to five year prison sentence.160 Furthermore parágrafo of Article 14 of Law 418 states that members of the guerrilla groups and the paramilitary groups are in addition not eligible for judicial benefits provided by Law 418 if recruiting child soldiers. Colombia stated in a Declaration when ratifying in May 2005 the Optional Protocol to the CRC on the involvement of children in armed conflict that : [t]he military forces of Colombia, in application of the norms of international humanitarian law for the protection of the best interest of the child and in application of domestic legislation, shall not recruit minors in age into their ranks, even if they have the consent of their parents. Act 418 of 1997 extended through Act 548 of 1999 and amended by Act 642 of 2001, stipulates that persons under 18 years of age shall not be recruited to perform military service. Students in the eleventh grade who are minors, in accordance with Act 48 of 1993 and who are selected to perform such service, shall defer their enlistment until they have reached age 18 …161

The Justice and Peace Law 975 does not make any exclusion for combatants that have recruited children into their ranks in terms of them receiving benefits, as it is stated in Article 64 of the Law 975 that “the handing over of minors by members of outlawed armed groups shall not be grounds for losing the benefits referred to in this law and Law 782 of 2002”.162 Children under 18 years that are associated with the armed groups are defined as victims and not as combatants according to Law 782 (Article 15), however Law 782 at the same time allows for the prosecution of child soldiers under certain circumstances, a provision that 159

In Human Rights Watch, Paramilitaries’ Heirs, The New Face of Violence in Colombia, February 3, 2010, p. 16, www.hrw.org/en/reports/2010/02/03/paramilitariesheirs?print: The Inter-American Commission on Human Rights also reported on the fraudulent demobilization of the Northern Bloc as the Commission was present at the demobilization, p. 16. 160 Ley 418 de 1997 (Diciembre 26), Articles 13 and 14 and Parágrafo, www.disaster-info. net/desplazados/legislacion/LEY418de1997.pdf 161 Declaration by Colombia (signed the Protocol on 6 September 2000 and ratified the Protocol 25 May 2005), the Optional Protocol to the CRC on the Involvement of Children in Armed Confl ict, New York, 25 May, 2000, Status of Treaties, http:// treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtsdg_no=IV=11=b&chapt er=4&lang=en#EndDec, accessed July 26, 2011 162 Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 8

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Colombia’s Constitutional Court struck down on in March 2005 in its Judgement 203.163 In this context the Childhood and Adolescence Code states that waivers from prosecution should not be accepted for acts “which may constitute grave breaches of international humanitarian law, crimes against humanity or genocide under the Rome Statute”.164 Furthermore, the Childhood and Adolescence Code prohibits intelligencegathering by demobilized children, while Decree 128 of 2003 has a provision (Article 22) that prohibits such intelligence gathering, but also has a provision where demobilized persons including children can be compensated for giving information that can be used for intelligence purposes (Article 9).165 A child soldier according to Law 782 of 2002 can only be identified by a spokesperson/leader for an armed group or if the child is able to provide evidence of its membership in the group, and the spokesperson/leader of the group is to hand over all the child soldiers to the Colombian Institute of Family Welfare, Instituto Colombiano de Bienestar Familiar (ICBF).166 However, there has been great reluctance in handing over children as it is a war crime to recruit and use children under the age of 15 years. The rules governing the demobilization of children from all the armed groups is regulated by Decree 128 of 2003, where it is stated in Article 22 that the civilian, military and judicial authorities are to within 36 hours from that they received the children and verified their demobilization hand over the children to the Colombian Institute of Family Welfare, which is the state institution in Colombia that has the responsibility for the reintegration of the former child soldiers into the society.167 One issue has been that the children have been held

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Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 7; and Child Soldiers Global Report 2008, www.childsoldiersglobalreport.org/content/Colombia Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2008, www.childsoldiersglobalreport.org/content/Colombia See Article 9 and 22 of Decree 128 of 2003, Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 6, and Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2008, www.childsoldiersglobalreport.org/content/Colombia Article 53 of Law 782 of 2002, Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 6-7 Diario Oficial Año CXXXVIII. N. 45073. 24, Enero, 2003. PAG. 10, Decreto Numero 128 de 2003 (enero 22), Articles 22, 23, 24 and 25; and see footnote 98, para. 62, InterAmerican Commission on Human Rights, Report on the Demobilization Process in Colombia, December 13, 2004, in Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of published documents (2004-2007), OEA/Ser.L/V/II, CIDH/INF.2/07, 2007, www.cidh. oas.org/pdf%20fi les/Colombia-Demobilization-AUC%202008.pdf

Children Associated With Armed Forces and Armed Groups

longer than 36 hours by the different state entities to the detriment of their needs and security. During the demobilization of the AUC, it was the High Commissioner for Peace that invited the ICBF into the concentration zone as a result that the High Commissioner had been informed by the leaders that children were to be demobilized.168 The ICBF is only present when children under the age of 18 years are being surrendered, as for instance when the AUC Bloque Norte demobilized in the La Mesa concentration zone the ICBF was there as children were being surrendered, but the ICBF was not present in the zone where the Elmer Cárdenas group demobilized as no children were surrendered. With regards to the demobilization of the AUC, the ICBF formalized the handover of a child in a concentration zone by a document of “voluntary surrender”.169 The ICBF only has responsibility of those children that after having voluntarily surrendered accept to stay in the shelters that the ICBF provides.170 The other children have been left to fend for themselves, and there have been no programmes to assist them. The demobilization, disarmament and reintegration programmes according to Decree 128 have been very limited for children, because they have only been applied to children who are leaving an armed group voluntarily, and not to those children who have been captured by the Colombian armed forces.171 In the formal DDR process for the AUC not many children were accounted for, and one reason for this was that children were let go by these groups because in that way the military commanders would not have to take criminal responsibility for having recruited and used children.172 The problem has been that these children have remained unaccounted for and they have not been able to benefit from any available help and assistance. Another issue is that the children that have taken part in the formal DDR programme under the care of ICBF have not

168 Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial stages in the demobilization of the AUC and first judicial proceedings, OEA/Ser.L/V/II., Doc. 3, 2 October, 2007, para. 28, www.cidh. oas.org/pdf%20 169 Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial stages in the demobilization of the AUC and first judicial proceedings, OEA/Ser.L/V/II., Doc. 3, 2 October, 2007, para. 29 170 Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial stages in the demobilization of the AUC and first judicial proceedings, OEA/Ser.L/V/II., Doc. 3, 2 October, 2007, para. 29 171 Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 7 172 Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 11

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always been well prepared for civilian life, and this has been one reason why some children have chosen to re-join a military group.173 The AUC groups that participated in the formal demobilization should have included into their fi les the registration of the boys and girls that they had recruited and that were associated with these groups and were not part of the formal demobilization, and then give these files to ICBF so there would have been an official record of these children that were unaccounted for.174 This way it would have been possible to identify those children that had returned to their home communities and be able to give them the assistance that they would have needed as victims of recruitment. The ICBF reported in July 2011 that 4,688 children and adolescents had gone through its demobilization programme, and that so far in 2011 159 children and youth had taken part in its reintegration programme “Programa de Atención Especializada a niños, niñas y adolescentes que se han desvinculado de grupos armadas organizados al margen de la ley”, where in 2010 338 had taken part in this programme, and 315 minors in 2009, 415 minors in 2008, and 380 minors in 2007.175 Since 1999 when the programme was implemented until 30 June 2011 the majority, 72 per cent, of the minors that have gone the programme had been male, that is 3,395 minors, and 28 per cent, that is 1,293, had been female. In order to enter the programme, 83 per cent (3,869) had voluntarily surrendered, while 17 per cent (819) had entered in other ways. Of the total number of children that had formally gone through ICBF’s programme, 2,724 had come from FARC, 1,050 had come from AUC, 696 from ELN, and 218 from other groups. Antioquia is the department in the country where most of the demobilized minors have come from, with 689 minors, and thereafter the number is in the order of Bogotá (545), Meta (361), Valle (276), Caquetá (236), Casanare (235), Cauca (228) and Tolima (223). The age of the minors that have been demobilized through the programme range from 9–17 years, with 17 years having been the average age (1,800 have been 17 years). Given that there are estimates that there have been about 11,000 child soldiers in Colombia, and that the recruitment and use of child soldiers is still going on, the number of 4,688 children and adolescents is still a small number, as it is not even 50 per cent of the estimates. This is also something that has been noted by organizations working with child soldiers, that with regards to the for173 174

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Coalition to Stop the Use of Child Soldiers, Armed Confl ict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 11 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia, Impacto del confl ict armado en los niños y las niñas, 5 misiones de verificación en escuelas y colegios de deferentes regiones colombianas, p. 12, Putchipu, enero-junio, 2007, boletín 15-16 All information in this paragraph on the demobilization of minors comes from the Colombian Institute of Family Welfare, ICBF, 4.688 niños y adolescentes desvinculados de grupos al margen de la ley, atentidos por ICBF, Bogotá, 22 July 2011, www. icbf.gov.co, accessed July 25, 2011

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mal demobilization of the AUC, where the handover of child combatants had been minimum, this took place in the context that child soldiers, that is combatants under the age of 18 years, were not included in the jurisdiction of the High Commissioner for Peace who was responsible for the negotiations regarding the demobilization of the members of the AUC.176 This has also been reflected in the DVDs/CDs that the Office of the High Commissioner for Peace has been handing out on the demobilization of the AUC groups. It needs to be underlined that once a child turns 18 years of age, the ICBF no longer has the responsibility for the child, and the child now turned adult is then to enter the Ministry of the Interior’s programmes on reintegrating demobilized adult combatants.177 The state officially certifies that the child is an ex-combatant at the age of 18 years, at which point the responsibility of ICBF ceases.178 However, there is a need to set up a mechanism which would regulate the child’s transition from the ICBF’s programmes to the adult programmes, which has been lacking, and furthermore there has been a need of systematic monitoring of the minors/ young persons that no longer take part in the programmes by the ICBF, which also has been lacking.179 This is especially important since the conflict is on-going in Colombia. The Colombian Attorney General issued Directive No. 013 in 2004 which recommends that in cases where demobilized youth are targets of criminal proceedings, the prosecutors should intervene in order to put an end to these proceedings and instead turn these former child soldiers over to the ICBF so that their human rights could be fully restored.180 This Directive was making reference to the international standards “which hold that minors who have taken part

176 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia and the Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 11 177 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia and the Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 11 178 Thomas, V., Overcoming lost childhoods, Lessons learned from the rehabilitation and reintegration of former child soldiers in Colombia, Y Care International, January 9, 2008, p. 16, If a child soldiers’ (who participate in the official DDR programme) legal status has not been officially determined by the time the youth turns 18 years, the ICBF has responsibility of the youth until 21 years of age, Footnote 30, p. 42 179 Coalición contra la vinculación de niños, niñas y jóvenes al conflict armado en Colombia and the Coalition to Stop the Use of Child Soldiers, Armed Conflict in Colombia Report, Frontiers: Childhood at the borderline, February 2007, p. 11 180 CODHES, Humanas, Limpas, Madre, Taller de Vida, and Women’s Link Worldwide, UN Human Rights, 99th Session, Geneva, Switzerland, July 12-30, 2010, Report on Violations of Women’s Human Rights, In response to the Sixth Periodic Report of Colombia, p. 55

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in hostilities are not victimizers, but victims themselves of the armed conflict”.181 Furthermore this Directive reiterates that the armed forces hand over child soldiers within 36 hours from demobilization. As a result of Directive No. 013 of 2004, more than 700 case proceedings and more than ten investigations regarding the practice by the Colombian security forces to use children for intelligence purposes have been stopped.182 14.3.2.2. Challenges to the Demobilization of the Paramilitaries The formal demobilization of the paramilitaries, AUC, ended on August 2006 and by then 37 paramilitary groups, 31,671 men and women had been demobilized and 18,051 weapons had been handed in.183 At the end of the formal demobilization there are several areas in the country where insecurity and violence have remained because of the re-grouping and re-arming of former paramilitary members forming new armed groups.184 As of September 2008, 23,008 persons were participating in the demobilization programme, while about 7,000 did not. In addition, at the same time as participating in the demobilization programme, there were several reports about groups that continued their illegal activities.185 The OAS Mission to Support the Peace Process in Colombia (MAPP/OAS) reported in 2009 that there were 28 zones which included 153 municipalities that were affected by the re-emerging of illegal armed groups, and that these groups have had “a direct negative impact on the communities”.186 Within these communities the most vulnerable groups are children, women, the indigenous population and the Afro-Colombians. The continuous context of violence and insecurity has also been one of the most important obstacles to the transition into civilian life for the demobilized soldiers as there is heavy pressure on these people to 181

CODHES, Humanas, Limpas, Madre, Taller de Vida, and Women’s Link Worldwide, UN Human Rights, 99th Session, Geneva, Switzerland, July 12-30, 2010, Report on Violations of Women’s Human Rights, In response to the Sixth Periodic Report of Colombia, p. 55 182 CODHES, Humanas, Limpas, Madre, Taller de Vida, and Women’s Link Worldwide, UN Human Rights, 99th Session, Geneva, Switzerland, July 12-30, 2010, Report on Violations of Women’s Human Rights, In response to the Sixth Periodic Report of Colombia, p. 55 183 Presidencia de la República Oficiana Alto Commisionado para la Paz, Proceso de la Paz con las Autodefensas, Informe Ejecutivo, Deciembre 2006, p. 99, DVD/CD 184 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 3 185 Such as in Bajo Cauca, Cordoba, Santander and Norte de Santander. 186 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 2

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re-join the newly formed groups.187 As a result some have re-joined these groups, but others have been killed for not re-joining and others have had to flee and become displaced in order not to have to re-join a group. This is a great impediment to the work of the Department of Reintegration (ACR), and in addition it has led to that the demobilized soldiers have chosen not to remain in the reinsertion into civilian life programmes due to this pressure.188 During the reporting period for MAPP/OEA up to September 2008, the group Guevara Revolutionary Army operating in Chocó which was a dissident group of the National Liberation Army demobilized.189 The 37 members surrendered their weapons (15 were already in prison), and eight children were part of the process and they were handed over to the Family Welfare Institute. The national government had introduced a new demobilization strategy and it was used with this group and consisted of having direct dialogues with the regional units, fronts and groups and not with the highest ranking national commanders of the group, which has been found to be problematic and not helping the process.190 Another issue is that in the post-demobilization period one of the biggest challenges has been how to bring justice to the many people who lived through the AUC’s imposition of their rules and conditions, and with the continuous violence and illegality people continue to live in fear and choose not to come forward as victims. This in turn has an impact on the governmental institutions that work at re-establishing themselves in areas where people have lived without governmental support and protection, and thus it has been very difficult to establish trust and credibility for the governmental institutions in the eyes of the people. A special mechanism has been established that includes the government security organizations, the Public Prosecutor’s Office and the Reintegration Department (ACR) that is to monitor the “emerging criminal gangs”.191 In addition there are special plans at the regional level that are to deal with the armed groups that operate outside of the law, and in some instances the implementation of these plans 187 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 2 188 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 2 189 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 4 190 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 4 191 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 2

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has been effective with results such as that mid-level commanders have been captured and weapons have been seized. In this context of illegality and violence there are particularly two persistent problems, and they are the recruitment of youth as well as of demobilized persons and the issue of corruption in the governmental institutions.192 With regard to the DDR of the paramilitary adults and their giving voluntary statements, the Colombian Public Prosecutor decided that special treatment should be given to the issue of the recruitment of minors in these voluntary statements.193 As such the Office of the Prosecutor instructed in Memorandum 057, 14 August 2008, the prosecutors in the Justice and Peace Unit that the demobilized persons should be interrogated with regards to the recruitment of minors in accordance with:194 The Convention on the Rights of the Child and its Optional Protocol ratified by the Colombian State, regarding the participation of children in armed conflicts; the Geneva Conventions, pertaining to the prohibition of the recruitment of minors; the Penal Code with regard to the illegal recruitment of persons under 18 years of age, and, Law 975 of 2005 regarding one of the requirements for eligibility for turning over all children and adolescents linked to illegal groups.

As a result of these instructions, the former commander of the AUC Bloque Elmer Cárdenas, Freddy Rendón Herrera, alias “El Armán”, gave in a voluntary statement the information that 358 children had been recruited by his group.195 In another voluntary statement, the former head of the Magdalena Self-Defense Forces, Ramón Isaza, said that they had recruited 49 minors. In this context the MAPP/ OAS mission argued that the Memorandum for voluntary statements regarding the recruitment of minors as child soldiers would “be expanded to also include gender violence, and acts against vulnerable sectors of the population, like the indigenous peoples and the Afro-Colombians, and those groups that were victimized by the action of the para-militaries, such has labor union members, journalists and human

192 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 2 193 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 13 194 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 13 195 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 13

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rights defenders”.196 The MAPP/OAS mission meant that this would improve these groups’ visibility as well as clarify the damage that these paramilitary groups were responsible for if it became public knowledge as to how these vulnerable groups were affected and violated by them.197 As of September 2008, AUC demobilized members have in voluntary statements made confessions to at least 2,709 crimes and they had referred to 8,196 others.198 These confessions have led to the finding of 1,328 mass graves where 1,698 bodies have been found and exhumed.199 Of these bodies, 538 persons were identified and 223 bodies have been given to their families. The ACR is the governmental organization that handles the demobilized soldiers’ and their families’ transition back to civilian life, which includes providing psychosocial support. The reintegration policy for the former soldiers has also included municipal development plans, which has been an important accomplishment.200 Some of the challenges that the adult demobilized soldiers are faced with, apart from the continuous illegal and insecure environment, are the stigmatization of former soldiers, large informal markets in municipalities and high levels of unemployment.201 While the demobilization of the AUC has been concluded, many former AUC members have transformed themselves into new armed structures and continue to operate in a context of lawlessness and have retained their recruitment capacity including of children.202 The individuals who are the primary targets for

196 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 13 197 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 13 198 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 3 199 The largest number of mass graves has been found in five departments; 238 in Magdalena, 182 in Antioquia, 154 in Meta and 140 in Córdoba, MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/ doc.4365/09 corr. 1, 9 February, 2009, p. 3 200 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 3 201 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 3 202 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5

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recruitment by these groups are the demobilized soldiers and youth.203 The demobilized soldiers and youth join these groups because of either very heavy pressure by the groups to have them join or they join because of economic reasons. The Colombian Public Defender’s Office reported that 83 per cent of the minors and youth that joined these armed groups did so voluntarily.204 Recruitment of minors and youth has still continued in Norte de Santander, the Sierra Nevada, Cauca, Nariño, Córdoba, Antioquia and Chocó areas.205 The continuous lawlessness and resurgence of new armed groups is having negative effects in the communities where they operate where social organizations, victims and the Catholic Church have been targeted by these groups.206 However, also youth have been especially targeted by these groups. From April to September 2008 it was reported that in those areas where the demobilized AUC soldiers still operate 50 cases of extrajudicial executions had possibly taken place with 19 bodies having been found in the municipality of Ocaña in Norte Santander.207 The departments of Norte Santander and Cesar have been affected the most. A pattern was emerging and noted with regards to these extrajudicial executions, and it has been especially youth who have been targeted. As the mission of MAPP/OAS explains the pattern of extrajudicial executions:208 1.

Youth who received job offers in rural areas on the outskirts of their places of residence, and were reported as disappeared persons by their families, and were then presented as having died in combat by the Police;

203 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5 204 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5 205 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5: the re-recruitment of the demobilized soldiers continue in Urabá, Bolívar, Santander, Antioquia, Magdalena, Córdoba and Chocó. 206 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5 207 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5 208 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5

Children Associated With Armed Forces and Armed Groups

2.

Youth who received promises of work, and had to move to areas far from their places of residence, and who were considered by their families as disappeared persons, ant then appeared as “casualties” by the Police.

The government and the national police did react as a response to these crimes, dismissing 27 members of the Armed Forces which included three generals and ten colonels.209 However this shows how dangerous and precarious the situation is and that these young people were totally helpless and exposed in this context. 14.3.2.2.1. The Issues of Justice In the process of providing justice for the victims and the victims’ families the continuous insecurity and illegality are major impediments to that process. The participation of victims is still very limited, however by February 2009 about 160,000 victims had come forward.210 In addition, many people have come to listen to the paramilitaries giving their voluntary statements, which indicates much interest in the process. Another factor is that many victims who have been affected by paramilitary violence do not see themselves as victims.211 In order to increase the participation of the victims in the process the mission of MAPP/ OEA has singled out five specific issues: “1) Recognition by the persons affected by paramilitary violence that they are victims; 2) Guarantees of protection; 3) Guidance, assistance, and legal defense; 4) Monitoring and strengthening of grass-roots organizations and victim networks; 5) A specific response to the expectations of victims and adoption of special mechanisms to follow up on vulnerable population groups.” 212 One of the most important reasons as to why people do not see themselves as victims is that they are not aware that they have rights and that there are legal means they can use as a recourse.213 The reason is that they have been living 209 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 5 210 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 9 211 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 9-10 212 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 10 213 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 10

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without any protection with weak institutional presence for many years under the influence of the paramilitary groups, where silence has been the option in order to stay alive. The Office of the General Prosecutor and various Colombian studies have identified that because of the economic and material needs of the victims, they have little knowledge about the process and this results in that they do not know that they can turn to the authorities for help or how to do that, and this in turns leads to them not participating in the process and as a result getting no access to justice.214 Another issue is the lack of security and protection of the victims, which results in the victims wanting to remain anonymous. The Colombian Constitutional Court ordered the Ministry of Interior and Justice and the Office of the Prosecutor General of the Nation to make the Victim and Witness Protection Programme into “a comprehensive strategy for protection of victims and witnesses in proceedings in which serious or systematic crimes … are investigated”.215 Another issue is the limited resources the government still has had in terms of providing the victims with legal assistance and defence. The Public Defender’s Office does not have enough public defenders, which has led to many people not having been provided with any legal defence.216 So far every defender has had to represent about 300 persons, and which has been noted by MAPP/OEA, since there are new judicial proceedings where the victims and the perpetrators are to have direct contact, this situation is very difficult.217 According to the Justice and Peace Law social organizations are to assist victims to come forward and be part of the process, and it is the prosecutor who has the responsibility to see to this, but so far this has not worked. The assistance of different social and civil organizations, institutions and the international community is crucial in order to assist especially those people who live in the areas where the presence of the paramilitaries is continuing.218 To establish victims’ networks could be very helpful, which has been done in for instance southern Bolivar, in order to provide better organi214 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 10 215 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 10-11 216 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11 217 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11 218 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Council on the mission to support the peace process in Colombia, Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11

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zation and correct treatment of the victims during the proceedings, and protection of privacy and security to not only the victims but also their families.219 In order to improve the visibility of the communities that are affected by the violence, there needs to be actual responses to meet the expectations of the victims and as well as to establish special follow-up mechanisms.220 It is important to note in this context that in the voluntary statements the demobilized soldiers have reported on a large number of crimes that were never prosecuted. In addition, they have given the reasons behind their actions, for instance, concerning child recruitment, sexual abuse cases, forced disappearances, assassinations of civilian and political leaders, massacres, homicides, torture and the involvement of political officials and the police which need to be investigated.221 Finally the most important reason to the phenomenon of child soldiers has been the silence of both the public and international organizations, as this case study from El Salvador illustrates:222 The most active Human Rights Organizations … both admitted having helped mothers to demand their forcibly recruited sons, but neither had done anything to discourage or prevent minors of age from recruiting voluntarily. Their representatives admitted that in this respect lots of violations of Rights of Children were committed, but said apologetically that they had so much work to do on those days, so many more urgent challenges … [M]ost (citizens) seem to have felt that fighting the war was not so very different from the other duties and jobs children traditionally perform among poor sectors of society. Children endure all kinds of hardships, and are deprived in so many ways that their participation in the armed forced did not attract any major attention by the society and its institutions. Anyhow, the great majority of children on both sides of the confl ict were children that never really “counted/mattered” in the eyes of society … [A] concept prevails that in the war situation the constitution and international conventions lose their validity.

14.4.

The Reintegration Phase of DDR Programmes

The reintegration phase of the DDR programmes is the most difficult to implement in a context of poverty and very few work opportunities as a result of the 219 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11 220 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11 221 MAPP/OAS, Twelft h quarterly report of the Secretary General to the Permanent Council on the mission to support the peace process in Colombia, Permanent Council, OEA/Ser.G, CP/doc.4365/09 corr. 1, 9 February, 2009, p. 11-12 222 Brett, B., and McCallin, M., Children, the invisible soldiers, 1996, p. 204

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devastation of a conflict. Depending on the time a child has been a child soldier, it is important to consider that the child has undergone many changes, and upon the child’s return to his/her family there is a need to consider that the family has also undergone many changes and has been changed by different events during the war, including displacement and the death of family members, as has the community and all of this affects how the child is going to be reintegrated into the family and the community.223 The following quote illustrates this situation which can be quite complex:224 The simplest form of reunification is the direct return of a child to the members of the family she was living with before the separation. In the simplest reunification she is also returned to the same place they were living in before – displacement of the family was temporary and they are all back together … [T]he people are the same and the place is the same. But nevertheless the first impression of ‘sameness’ is illusory: the child has had some very frightening experiences. She has been without protection for a period of time. She may have been beaten, abused, raped. She is in many ways not the same child she was before. And the family has changed too. Each member has had to develop survival strategies for themselves and for their relatives, sometimes with uncomfortable consequences. They may have had to choose which of their children should live and which should die. The mother may have had to turn to prostitution to survive. The father may have had to betray his community, his tribe, his religion, his caste in order to stay alive … Reunification is not, therefore a return to the situation that was before, but rebuilding, recreating a family, with new experiences which the family needs to come to terms with.

Furthermore there is a need to consider what “reintegration” means in a particular setting, which Thomas has underlined in the Colombian context:225 For many observers, the term reintegration (the return to ‘normal’ community life and restoring a sense of belonging) of former child soldiers in Colombia is a misnomer, since most children who are recruited into armed groups are already highly marginalised and excluded-economically, socially, and even within their own families. In addition, many former child soldiers are being ‘reintegrated’ into an urban context which is unfamiliar or alien to them, further contributing to a sense of displacement.

223 Bonnerfea, L., in Brett, B., and McCallin, M., Children, the invisible soldiers, 1996, p. 158-159 224 Bonnerfea, L., in Brett, B., and McCallin, M., Children, the invisible soldiers, 1996, p. 158-159 225 Thomas, V., Overcoming lost childhoods, Lessons learned from the rehabilitation and reintegration of former child soldiers in Colombia, Y Care International, January 9, 2008, Box. 1, Terms and Definitions, p. 12

Children Associated With Armed Forces and Armed Groups

The Paris Principles 2.8 provides the definition of “Child Reintegration” in terms of: [I]s the process through which children transition into civil society and enter meaningful roles and identities as civilians who are accepted by their families and communities in a context of local and national reconciliation. Sustainable reintegration is achieved when the political, legal, economic and social conditions needed for children to maintain life, livelihood and dignity have been secured. Th is process aims to ensure that children can access their rights, including formal and non-formal education, family unity, dignified livelihoods and safety from harm.

The “Interagency guidelines for developing reintegration programmes for children affected by armed conflict in West Africa”, which several organizations that work with child protection have developed, have the following definition of reintegration:226 [T]he process through which girls and boys, their families and community members are enabled to restore or establish sustained family and social attachments and community links leading to mutual acceptance, which were either disrupted or prevented from developing due to conflict-related events.

Save the Children has underlined that “children have the right to immediate and unconditional release from unlawful use by armed forces and groups” and that there need not be any peace process or peace agreement in place for the children’s demobilization and reintegration to take place.227 This is also confirmed in the Paris Commitments 5 where governments and other actors have committed “[t]o adhere to the principle that the release of all children recruited or used unlawfully by armed forces or groups shall be sought unconditionally at all times, including during armed conflict, and that actions to secure the release, protection and reintegration of such children should not be dependent on a cease-fire or peace agreement or on any release or demobilisation process for adults”. Applying a children’s rights-based approach, which emphasizes the rights of children as underlying all work with regards to children in armed conflict, the programmes for the reintegration of children must relate to and address their actual experiences 226 Save the Children, Stolen Futures, the reintegration of children affected by armed conflict, Submission to the ten year review of the 1996 Machel study on the impact of armed conflict on children, 2007, p. 2, and footnote 2: Inter-Agency Guidelines for Developing Reintegration Programmes for Children Affected by Armed Conflict in West Africa: Field Test Version, Save the Children UK et. al, West Africa, 2007, unpublished document 227 Save the Children, Stolen Futures, the reintegration of children affected by armed conflict, Submission to the ten year review of the 1996 Machel study on the impact of armed conflict on children, 2007, p. 3

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during the war as while all children have the same rights their experiences during the war and needs might have been different.228 One of the most important lessons that Save the Children has learned from years of experience with children in many different countries is that “inclusive, community-based programming that applies to a wider group of vulnerable children is more effective than assistance targeted at a specific group identified by one experience alone” such as having been a child soldier.229 To only focus on a specific group of children and to exclude other children and people who are equally much in need of assistance creates a lot of resentment and anger (as has been seen in Colombia).230 The following example from the experiences of Save the Children Norway in Nepal sheds light on this issue:231 The children inform us that none of the other resident children in the village will join them in the club, saying ‘you are getting support, what about us?’ They say that there seems to be unfairness in the matter of who gets support and remark that sometimes the children directly affected by the armed conflict are better off than the extremely poor children in the community.

Especially targeted assistance to girls associated with armed forces and groups have in some places been negatively viewed, and Save the Children means from experience that the community might be more accepting of the provision of free access to service, such as health service to girls, and not visible targeted assistance, which the following example from Save the Children UK in West Africa illustrates:232 In Kambia, the community was generally more accepting of immediate health support provided to the girls, partly as this was a less visible transaction between the 228 Save the Children, Stolen Futures, the reintegration of chil