Facilitating Child Participation in Transitional Justice Processes to Maximise

Accountability in the Aftermath of Conflict

Index

Introduction ………………………………………………………………………….…….. 1

Section One: Transitional Justice and Individual Accountability ………………………… 4

Section Two: Transitional Justice and The Developing Understanding of the Capacity of

Children …………………………………………………………………………………… 14

Section Three: Children as Consultants Within Transitional Justice ……….……………. 29

Section Four: Children as Witnesses Within Transitional Justice ………………..………. 51

Section Five: Children as Perpetrators Within Transitional Justice ………………..……... 62

Conclusion ………………………………………………………………………..………... 80

Sam Freeman – 8846010

INTRODUCTION

In the aftermath of violent conflict, societies are inevitably left to reckon with a legacy of grave
human rights abuses that have brought devastation to individuals and communities. Whilst few
inhabitants of these societies are spared the effects of such crimes, children, in particular, have been
demonstrated to suffer them disproportionately. UNICEF has estimated that around one in nine
children globally lives in a conflict zone, a statistic which equates to about 250 million children whose
lives are directly affected by war.1 These children are not only at a high risk of being killed or injured
in the fighting, or of being illegally conscripted to fight in armed groups. The hostilities may also lay
waste to their futures by destroying their familial and community units, disrupting their education, and
cutting access to essential services required for their proper development.2 Accordingly, for many
children, the violence and suffering of the conflict does not simply end at the close of hostilities, but
has the potential to continue long after the war is over.
In seeking to facilitate a successful recovery from the conflict, ensure long-term peace and stability,
and satisfy the rights of the victims to justice and truth, following the cessation of hostilities states
must undertake to confront the causes and effects of the war and the crimes committed therein. This
process is known as transitional justice. Central to the modus operandi of transitional justice is the
understanding that those who have committed egregious violations of human rights must be held
accountable for their actions.3 Indeed, it is now widely recognised that without obtaining perpetrators’
accountability, post-conflict states stand little chance of protecting themselves from a return to conflict
in the future.4
The effect that conflict has on the lives of children suggests that, in the processes of accountability
implemented in its wake, young people should be afforded an active role. However, owing to a past
perception of children as in need of protection, or unable to make decisions for themselves, their
contribution to transitional justice accountability processes has, historically, been muted. To this end,
the potential of children to assist post-conflict states to achieve accountability is largely unexplored.
Despite this, a growth in the recognition of children’s rights has lent credence to the notion that
children are capable human beings who should be afforded greater opportunities to play an active role
in their own lives and communities. Accordingly, children may no longer be excluded from
participation in transitional justice, and, rather, the role that they can play therein must be explored. As
such, this work seeks to determine how, by facilitating the participation of children within transitional

1
UNICEF, “Press Release: More than 16 million babies born into conflict this year: UNICEF” (17th December
2015) online: <://www.unicef.org/media/media_86560.html> [accessed on 2th December 2017]
2
Ann S. Masten and Angela J. Narayan, ‘Child Development in the Context of Disaster, War and Terrorism:
Pathways of Risk and Resilience’ (2012) 63 Ann Rev Psychol 227, 233
3
See, Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harv Hum Rts J 69
4
Neil Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of
Human Rights’ (1996) 59:4 Law Contemp Probl 127, 127

justice, states and societies can better obtain the accountability of the perpetrators of egregious human
rights abuses, committed during the course of conflict.
Section one contextualises the issues that will be explored by analysing the meaning of transitional
justice and the nature of accountability therein. It is established that for post-conflict states to achieve
accountability in transitional justice, they must seek to hold perpetrators individually accountable for
their crimes. Whilst individual accountability is often conflated with criminal prosecutions, it is
suggested that, especially where the inclusion of children is sought, states must move away from this
reductionist conception of accountability and embrace a broader understanding of the concept.
Section two locates a legal duty for the inclusion of children within transitional justice. It begins by
assessing the historical conceptions of childhood, which have led to the exclusion of children from
transitional justice. It argues that the growth in recognition of the capacity of children, and the
resultant birth of a children’s human rights regime, means that the inclusion of children in post-
conflict justice processes is now imperative. With this in mind, it concludes by noting three distinct
roles that children can be afforded in transitional justice, namely, as consultants, as witnesses, and as
perpetrators.
Section three evaluates the role that children can play as consultants within transitional justice. In
this regard it is argued that where post-conflict states are designing and refining their transitional
justice accountability policies and procedures, they must ensure the participation of children in these
discussions. In doing so, they enable the opinions and requirements of children to be better
understood, thus creating an accountability process that is more responsive to those affected.

Section four looks at the potential role that children can play as witnesses in transitional justice. It
finds that where children have information regarding egregious acts perpetrated during the conflict, it
is essential that this be obtained. To this end, it suggests ways in which the participation of child
witnesses can be better ensured in transitional justice accountability mechanisms, so that they may
contribute to holding perpetrators accountable.
Finally, section five turns to consider the way in which post-conflict states can hold children who
themselves have perpetrated acts of egregious criminality accountable. It notes the two main
paradigms of accountability, namely retributive and restorative, before considering how child
perpetrators can participate in each. It concludes that retributive prosecutorial mechanisms of
accountability procurement are inconsistent with a state’s obligations under human rights law, and, as
such, greater recognition should be given to restorative modalities when seeking to hold child
perpetrators accountable.
The paper concludes that the lack of child participation in transitional justice schemes is not only
contrary to international human rights law, it is also, arguably, highly detrimental to the achievement
of the aims of transitional justice. Accordingly, post-conflict states must carefully consider the role
that children will play in their transitional justice accountability processes and design their chosen
mechanisms with children’s participation in mind. Only by doing such can transitional states

maximise accountability for the commission of egregious acts of criminality perpetrated in the course
of conflict.

SECTION ONE
TRANSITIONAL JUSTICE AND INDIVIDUAL ACCOUNTABILITY

This section explores the concept of transitional justice and describes its purposes and the
mechanisms at its disposal to achieve those purposes. It highlights the centrality of the notion of
individual accountability in modern understandings of transitional justice and examines what is meant
by accountability in this context. It concludes that, during transitional periods, whilst individual
accountability is often regarded as requiring the application of criminal justice measures, individual
accountability is, in fact, pluralist in nature, and is contingent upon the understanding of the concept in
the post-conflict state, and, equally, the capacity of the state to engage in particular individual
accountability processes.
In the aftermath of the Cold War, and largely as a result of the collapse of the Soviet Union, states,
both in Eastern Europe and South and Latin America, began to undergo political transitions from
authoritarianism to democracy and/or from conflict to peace.5 The histories of many of these states had
been characterised by the commission of vast human rights abuses, which included extrajudicial
killings, disappearances, and torture, and, breaches of international humanitarian law (IHL), leaving
thousands dead and missing, and families desperate for information about the fate of their loved ones.
In seeking to move towards peace and democratic stability, these states have recognised the necessity
of confronting the abuses committed in the course of the conflict or past regime.6 The means and
methods by which these and other states have come to reckon with their dark legacies are known as
‘transitional justice’.
Whilst, as Gahima notes, that there does not exist a single universal definition of the concept of
transitional justice,7 in broad terms the field can be defined as ‘the array of processes designed to
address past human rights violations following periods of political turmoil, state repression, or armed
conflict.’8 In confronting past criminality, transitional justice processes aim to achieve a variety of
different aims and outcomes, each argued to contribute to the strengthening of the state, and the
healing of those affected by the violence. Such aims include, inter alia, the strengthening of
democracy through the exposure of the harms of repressive regimes;9 the creation and maintenance of

5
Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the role of international courts
after conflict (New York, Routledge, 2011) 21
6
Nevin T. Aiken, Identity, Reconciliation and Transitional Justice: Overcoming Intractability in Divided
Societies (New York, Routledge, 2013) 1
7
Gerald Gahima, Transitional Justice in Rwanda: Accountability for Atrocity (New York, Routledge, 2013) 1
8
Tricia Olsen, Leigh Payne and Andrew Reiter, Transitional Justice in Balance: Comparing Processes,
Weighing Efficacy (Washington DC, USIP Press, 2010) 11
9
Yasmin Sooka, ‘Dealing with the past and transitional justice: building peace through accountability’ (2006)
88:862 IRRC 311, 312

a stable, long-term peace;10 the promotion of reconciliation between previously divided communities
within the state;11 the provision of justice for the victims and their families;12 and obtaining the
accountability of the perpetrators of the abuses.13 In this way, by seeking to produce positive future
effects through the examination and confrontation of the past, transitional justice is ‘once both
backward looking, insofar as it is preoccupied with abuses committed by various factions prior to the
transition … and forward looking, insofar as it attempts to prevent the recurrence and lay the
groundwork for long-term peace.’14
Of the multitude of aims acknowledged to be sought by transitional justice, one in particular –
obtaining the accountability of the perpetrators of human rights abuses – has come to form a focal
point in transitional justice discourses, policy and practice.15 Indeed, the dominance of accountability
discourses within the field of transitional justice is noted by Ratner, who states that ‘the international
community is beset today with talk of accountability. Governments, international organisations, non-
governmental organisations, and scholars speak of the need to hold individuals responsible for official
acts that violate the most cherished of international human rights.’16
In the context of post-conflict transitional justice, the notion of accountability is concerned with
the process of holding individuals responsible for the commission of egregious breaches of human
rights and IHL committed during the course of the hostilities.17 According to Stromseth, through the
provision of individual accountability, transitional states are able to secure a number of positive
outcomes. These include the provision of justice for the victims, whereupon the conduct of the
individual is condemned, and the responsible actor receives some form of sanction for their behaviour;
the creation of an ‘accurate historic record’ of the abuses perpetrated, which helps satisfy the victims’

10
Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (2009) 3 ICTJ 28, 29
11
Bronwyn Anne Leebaw, ‘The Irreconcilable Goals of Transitional Justice’ (2008) 30:1 Hum Rts Q 95, 102
12
Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’’ (2009) 3
ICTJ 5, 7
13
Neil Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations
of Human Rights’ (1996) 59:4 Law Contemp Probl 127, 127
14
Dustin Sharp, ‘The UN Peacebuilding Commission’ in Chandra Lekha Sriram, Jemima García-Godos,
Johanna Herman and Olga Martin-Ortega (eds) Transitional Justice and Peacebuilding on the Ground: Victims
and Ex-Combatants (Abingdon, Routledge, 2013) 27
15
Supra note 6 at 41
16
Steven R. Ratner, Jason S. Abrams, James L. Bischoff, Accountability for Human Rights Atrocities in
International Law: Beyond the Nuremburg Legacy (Oxford, Oxford University Press, 2009) 3
17
ibid; Rachel Kerr and Eirin Mobbekk, Peace & Justice: Seeking Accountability After War (Cambridge, Polity
Press, 2007) 3; Supra note 6 at 41

putative right to the truth; and deterrence whereby the punitive nature of individual accountability
measures prevents future repetition of the violations.18
Despite the prevalence, in contemporary transitional justice discourses, of the notion of holding
individual perpetrators accountable for their actions, previous enunciations within the field display a
strong polarization regarding the efficacy of individual accountability to the overall process of
transition. In what is commonly referred to as the ‘peace versus justice’ debate, it was suggested by
some scholars that by embarking on efforts to hold the perpetrators of human rights violations
accountable post-conflict states might, in fact, jeopardize the entire transitional process. This is so, it
was suggested, because perpetrators who had committed egregious human rights violations in the
course of the conflict might be discouraged from laying down their arms and accepting peace deals,
for fear that they will be held responsible for their actions.19 As such, by seeking the individual
accountability of the perpetrators of those offences, transitional states might risk the elongation of the
conflict, and the commission of further abuses. For this reason, in past debates, individual
accountability was commonly presented as an aim that should either be delayed or dispensed with
entirely for the sake of political expediency.20

However, despite these prior contentions the ‘peace versus justice’ debate is now widely regarded
as a false dichotomy.21 Indeed, rather than needing to be sacrificed in order to ensure peace and
stability in the aftermath of conflict, individual accountability is now commonly held to be an essential
facet of the search for long-term peace. Central to this realisation is the understanding that failing to
provide justice to the victims of atrocities, through a process of accountability, enables the propagation
of negative emotions between victims’ groups and perpetrators, thus accentuating the divisions
between them.22 These potential effects of a failure to secure the accountability of the perpetrators in
transitional justice are noted by Kritz, who states that ‘the assumption that individuals and groups who
have been the victims of hideous atrocities will simply forget about them … without some form of
accounting, some semblance of justice, is to leave in place the seeds of future conflict.’23

18
Jane Stromseth, ‘Introduction: Goals amd Challenges in the Pursuit of Accountability’ in Jane Stromseth (ed)
Accountability for Atrocities: National and International Responses (New York, Transnational Publishers, 2003)
5-13
19
Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International
Justice’ (2003/2004) 28:3 International Security 5, 20
20
See, for example, Louise Mallinder, ‘The Role of Amnesties in Conflict Transformation’ in Cedric Ryngaert
(ed.), The Effectiveness of International Criminal Justice (Cambridge, Intersentia, 2009) 33
21
Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter, ‘Transitional justice in the world, 1970-2007: Insights
from a new dataset’ (Vol. 47, No. 6, 2010) Journal of Peace Research 803, 803
22
Supra note 19 at 16
23
Neil Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations
of Human Rights’ (1996) 59:4 Law Contemp Probl 127, 127

As such, it is clear that, in order for transitional justice processes to ensure the achievement of the
aim of long-term peace and stability in post-conflict states, securing the accountability of the
perpetrators of human rights abuses is essential. Whilst the goal of accountability was previously
argued to be in conflict with the need for peace, this contention fails to take into account the need for
victims to see those who harmed them or their family members be held responsible, and the
concomitant likelihood of further violence should the actions of those perpetrators be met with
impunity. Indeed, such is the recognition of the importance of holding human rights perpetrators
accountable following periods of conflict that Crocker, notes that within contemporary transitional
justice schemes, ‘ethically defensible treatment of past wrongs requires that those individuals …
responsible for past crimes be held accountable.’24
However, despite a broad acceptance of the necessity of undertaking accountability processes
during transitional justice, some scholars have questioned whether the individualised model of
accountability is, in fact, appropriate for dealing with crimes committed during situations of mass
violence. Those raising concerns regarding the use of individual accountability measures within
transitional justice highlight that unlike in times of peace, the type of criminality prevalent during
conflict is deeply collective in nature, and thus holding only individuals responsible obfuscates the
true extent of the liability held for those crimes, scapegoating a few for the acts of the many.25
The collective nature of conflict-based criminality was noted in the Tadic case, heard before the
Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In
considering whether the legal principle of ‘joint criminal enterprise’26 could apply to the commission
of international crimes and gross violations of human rights, the court held that:

Most of the time these crimes do not result from the criminal propensity of single individuals
but constitute manifestations of collective criminality: the crimes are often carried out by
groups of individuals active in pursuance of a common criminal design. Although only some
members of the group may physically perpetrate the criminal act … the participation and
contribution of the other members of the group is often vital in facilitating the commission of
the offence in question. It follows that the moral gravity of such participation is often no less –
or indeed no different – from that of those actually carrying out the acts in question.27

24
David A. Crocker, ‘Reckoning with Past Wrongs: A Normative Framework’ (1999) 13 Ethics Int Affs 43, 53
25
Mark Drumbl, Atrocity, Punishment and International Law (Cambridge, Cambridge University Press, 2007)
202
26
Joint criminal enterprise can be defined as when two or more perpetrators, acting together under a mutual plan
and with the necessary intent, commit a criminal act. See Kai Ambos, ‘Joint Criminal Enterprise and Command
Responsibility’ (2007) 5 Int’l Crim Jus 159, 160
27
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former
Yugoslavia (ICTY), 15 July 1999, para 191

The contention that human rights abuses, committed during periods of mass violence, represent the
undertaking of groups, rather than merely individuals, casts doubt as to the efficacy of the individual
accountability model that holds prominence within the field of transitional justice. If it is so that
violations of human rights during conflict require the contribution, whether passive or active, of the
wider group to whom the physical perpetrator belongs, then by focusing efforts on achieving only the
accountability of the person directly responsible for the abuses, transitional justice processes may be
assisting to obscure the accountability of those who bear equal moral responsibility for the harm
caused. In this regard, it is suggested that whilst individual accountability modalities might be useful
for holding perpetrators responsible for offences committed during peacetime, the group-based nature
of human rights abuses committed during conflict means that transitional justice schemes should,
instead, seek to operate at a communal level, and enable determinations of collective responsibility to
be obtained.28 This proposition is noted by Ramji-Nogales who states that ‘while an emphasis on
individual accountability might be effective … in the domestic context, it has serious drawbacks when
applied to atrocities that are by their nature collective. … Unlike domestic crimes, mass crimes require
the complicity of large segments of society. As a result accountability efforts must engage with all
these individuals….’29

However, despite these arguments questioning whether the concept of individual accountability is
capable of adequately addressing the collective reality of atrocity crimes, it must be noted that the very
pretence for seeking to place responsibility for the commission of atrocities with individuals, rather
than groups, is based on the damage that notions of collective accountability can have in post-conflict
states. Where guilt for the commission of atrocities committed during conflicts is located with groups,
rather than individuals, transitioning states risk perpetuating the divisions caused and maintained by
the hostilities, and facilitate the stigmatization of all members of the group as criminals and violators,
thus hampering the potential for reconciliation. This premise is noted by Fletcher and Weinstein who
argue that ‘holding individuals accountable for these acts alleviates collective guilt by differentiating
between the perpetrators and innocent bystanders, thus promoting reconciliation. In the absence of
individual accountability, the fear is that the entire group of those in whose name atrocities were
committed will be deemed collectively accountable.’30

As such, whilst it is clear that atrocities committed during conflict are often the work of more than
one individual, and indeed may require the complicity of whole groups in order to enable their
perpetration, it is only by locating responsibility in individuals that transitioning states can achieve
some measure of justice for the victims, whilst protecting communities from the stigmatization that

28
Supra note 25
29
Jaya Ramji-Nogales, ‘Designing Bespoke Transitional Justice: A Bespoke Pluralist Approach’ (2010) 32:1
Mich J Int’l L 1, 9
30
Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of
Justice to Reconciliation’ (2002) 24:3 Hum Rts Q 573, 598

might arise from the collective labelling of all members of a group as criminal. To this end,
accountability in transitional justice must operate at an individual, rather than a collective level, in
order to have the potential to assist in the achievement of all of the desired end goals of the transitional
process.

Having determined the nature of the accountability that is necessary for transitional justice
processes to seek to achieve, the next question that arises is how transitioning states should achieve
this. Whilst, as will be seen, numerous methods exist for procuring the individual accountability of
human rights perpetrators, contemporary transitional justice discourses, particularly those emanating
from the institutions of global governance, such as the United Nations (UN), have come to position
criminal prosecutions of human rights abusers as the sine qua non of individual accountability
mechanisms.31 Whilst this drive towards criminally prosecuting individuals for crimes committed in
the course of conflict can be traced back to the Nuremburg Tribunal, set up to try the Nazi leaders
following the Second World War, 32 it was not until the 1990s that the push for retributive
accountability measures reached its peak. This development in opinion regarding the correct modality
of post-conflict accountability has been charted by Sikkink, who refers to it as the ‘justice cascade’,33
and represents ‘a rapid and dramatic shift in the legitimacy of the norms of individual criminal
accountability for human rights violations and an increase in actions (such as trials) on behalf of those
norms.’34 Evidence of the effect of the ‘justice cascade’ can be seen from the increasing willingness of
the international community to both set-up and fund criminal justice forums to try the perpetrators of
human rights abuses, in the aftermath of conflict. Since the early 1990s states have enabled the
creation of two ad hoc tribunals for the Former Yugoslavia and Rwanda,35 hybrid international
criminal courts in Sierra Leone and Cambodia,36 and an International Criminal Court (ICC), mandated

31
See, Lisa J. Laplante, ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’
(Vol. 49, No. 4, 2009) The Virginia Journal of International Law 917; Diane Orentlicher, ‘Settling Accounts:
The Duty To Prosecute Human Rights Violations of a Prior Regime’ (Vol. 100, No. 8, June 1991) The Yale Law
Journal 2537
32
See, Benjamin B. Ferencz, ‘International Criminal Courts: The Legacy of Nuremberg’ (1998) 10:1 Pace Int’l
L Rev 203
33
See, Katheryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics
(New York, W.W. Norton, 2011)
34
Katheryn Sikkink and Hun Joon Kim, ‘The Justice Cascade: The Origins and Effectiveness of Prosecutions of
Human Rights Violations’ (2013) 9 Annu Rev Law Soc Sci 269, 270
35
The International Criminal Tribunal for the Former Yugoslavia (ICTY) (established 25 May 1993); and the
International Criminal Tribunal for Rwanda (ICTR), established on 8 November 1994 by UN Security Council
Resolution 955.
36
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998

 10

to prosecute those who commit genocide, war crimes, crimes against humanity and aggression,37 and
imbued with the authority to prosecute perpetrators where states show an unwillingness or inability to
do so domestically.38 The normative shift evidenced by the establishment of these institutions is well
highlighted by comments made by then UN Secretary General, Ban-Ki Moon, who, in 2010 stated at a
conference concerning the ICC that ‘the old era of impunity is over. In its place, slowly but surely, we
are witnessing the new “age of accountability.” … In this new age of accountability, those who
commit the worst of human crimes will be held responsible.’39

Scholars advocating for a retributive criminal justice approach to post-conflict individual

accountability argue that, given the gravity of the offences transitional justice seeks to address, only
criminal prosecutions of the perpetrators are an appropriate accountability mechanism.40 From this
perspective, Diane Orentlicher contends that whilst non-prosecutorial accountability processes might
be an acceptable response to low-level criminality, ‘there can be no scope for eviscerating wholesale
laws that forbid violence and that have been violated on a massive scale.’ 41 In support of a
prosecutorial model of accountability, she argues that trials produce the strongest deterrent effect and,
as such, are ‘the most effective insurance against future repression.’42 Equally, Landsman holds that
post-conflict human rights prosecutions help in the establishment of the rule of law in the state, whilst
highlighting to other potential rights abusers that they will be held criminally responsible for their
aberrations.43 Owing to these determinations, criminal prosecutions of human rights abusers clearly
represent an inviting option for obtaining accountability in the aftermath of conflict. By serving both a
retributive and a consequentialist function, trials can help to establish the facts of the abuses, punish
offenders for their wrongdoing, and, equally, deter further breaches in the future. In this sense, trials
are, prima facie, well suited to achieve the aims that transitional justice accountability processes
should aspire to.

However, despite the global popularity of the individual criminal justice model, and the potential
ability of criminal trials to achieve the aims of post-conflict accountability, the sole recourse to
prosecutions in dealing with human rights perpetrators has been questioned. In this regard, Drumbl

37
ibid at Article 5
38
ibid at Article 17(1)(a)
39
Ban Ki-moon (United Nations Secretary General), ‘An Age of Accountability’, Address to the Review
Conference on the International Criminal Court, Kampala, 31 May 2010, available at
<http://www.un.org/sg/statements/?nid=4585> [accessed on 21 March 2017]
40
Diane Orentlicher, ‘Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime’
(Vol. 100, No. 8, June 1991) The Yale Law Journal 2537, 2542
41
ibid at 2543
42
ibid at 2542
43
Stephen Landsman, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth
Commissions’ (1996) 59 Law & Contemp Probs 81, 83

 11

argues that conflating accountability with criminal prosecutions results in a reductionism that confuses
the ‘end’ of accountability, with a means by which it can be achieved.44 Conversely, he advocates that
whilst the notion of holding human rights perpetrators accountable is becoming a universal value,45 a
more pluralistic approach is required that takes into account the equal potential for other, non-
prosecutorial, transitional justice mechanisms to contribute to the process.46

The realisation that, despite the strong preference for individual criminal prosecutions, post-conflict
accountability processes should not be limited to only utilising trials is important in the context in
which accountability is to be considered in this paper. As will be seen below, where the accountability
of child perpetrators is sought, the use of criminal trials is highly controversial and there is a
burgeoning body of academic and policy literature which expresses doubt as to the efficacy of punitive
accountability measures in these cases.47 Equally, where children are required to act as witnesses to
the crimes of others, criminal courts have been regarded as a problematic forum owing to their
formality and intimidating nature. 48 As such, as is noted by Bassiouni, ‘international criminal
prosecutions are not necessarily the most appropriate of the various accountability modalities …
indeed there is a range of modalities, used individually or in combination, which may be more
appropriate in a given situation.’49

In this way, owing to the subject matter of this paper, whilst it must be acknowledged that criminal
justice models of accountability have achieved a significant status within transitional justice discourse
and policy, a broader understanding of the means by which individual accountability can and should
be obtained is necessary. This approach seems both pragmatic and sensible when considering how
transitional justice processes can secure increased accountability by facilitating the inclusion of
children, in whose case criminal prosecutions may be inappropriate. By following the approach
advocated by Drumbl and Bassiouni, transitional justice processes can utilise a broader array of
mechanisms, including truth and reconciliation commissions and traditional justice modalities, to
achieve the aim of individual accountability. In doing so, children may be better able to contribute to
the process.

44
Supra note 25 at 148
45
ibid at 182
46
ibid at 148
47
Nienke Grossman, ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’
(2007) 38 Geo J Int’l L 323, 350
48
Casey Holder, ‘All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a
Defendants Right to a Fair Trial’ (2013) 50 Hous L Rev 1155, 1159
49
M. Cherif Bassiouni, Introduction to International Criminal Law, 2nd Revised Edition (Leiden, Martinus
Nijhoff Publishers, 2013) 1013

 12

SECTION TWO

TRANSITIONAL JUSTICE AND THE DEVELOPING UNDERSTANDING OF THE CAPACITY

OF CHILDREN
Despite commonly comprising a majority of the population in post-conflict states,50 the role of
children within the schemes and processes of transitional justice has, historically, been limited. This
section looks at the reasoning behind this constrictive approach to post-conflict justice, before moving
to consider how advances in the field of children’s human rights have led to a developing
understanding of the capacity of children. It shows how this understanding has translated to a growing
willingness to afford children a greater role in transitional justice and concludes that, as a result of
these developments, it is now problematic to deny children a role in transitional accountability
processes. Resultantly, more must be done to understand how and why children’s involvement in
transitional justice can be beneficial to the process as a whole.

2.1 Past Perspectives on Children and their Influence on Transitional Justice

Whilst, as will be seen, contemporary transitional justice discourses are starting to recognise the
role that children can play in the search for peace and accountability in the aftermath of conflict, these
developments are a relatively recent phenomenon. In previous elucidations of the field, children were
either entirely excluded from post-conflict justice and peacebuilding enterprises,51 or were ‘considered
only to the extent they were affected by the violations committed against their parents….’52

The reasoning for this exclusion is arguably a result of the philosophical and sociological ideas
surrounding children and childhood, which have heavily influenced our perception of how children
should and should not be treated. For centuries philosophers have sought to ascribe meaning to the
notion of childhood with the aim of determining how best to raise and nurture children. These
determinations have commonly placed limitations on the autonomy of children, often side-lining them
as irrational actors incapable of making decisions and proactively engaging with the world around
them. Of these philosophical perspectives, two in particular have been regarded as the most
influential: the Romantic discourse and the tabula rasa discourse.53

50
Saudamini Siegrist, ‘Child Rights and Transitional Justice’ in Sharanjeet Parmar, Mindy Jane Roseman,
Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 14
51
Alison Bisset, ‘Building Resilience in Post-Conflict Disaster Contexts’ in Susan Breau and Katja Samuel (eds)
Research Handbook on Disasters and International Law (Cheltenham, Edward Elgar Publishing, 2016) 494
52
Virginie Ladisch, ‘Children and Youth Participation in Transitional Justice Processes’ (2013) 6:3 JHCY 503,
506
53
Meike S. Baader, ‘Tracing and contextualising childhood agency and generational order from historical and
systematic perspectives’ in Florian Esser, Meike S. Baader, Tanja Betz and Beatrice Hungerland (eds),

 13

The Romantic discourse of childhood is most closely associated with the 18th century philosopher,
Jean-Jacques Rousseau, and holds that children ‘embody a state of innocence, purity and natural
goodness’ that becomes distorted and tarnished when they are exposed to the ‘corrupt adult world.’54
According to Ladisch, the Romantic vision of childhood rests upon a pervasive paternalistic
perception of childhood as a period in which children should be allowed to ‘just be children’, without
being exposed to the realities and difficulties of adult life.55 Children should, therefore, be kept away
from adult influences in order to protect them and their childhood from harm. From this perspective,
enabling the engagement of children in post-conflict justice, which necessarily involves confronting
‘adult’ issues such as egregious criminality, death, injury, and abuse, is to risk damaging or
eviscerating their innocence as children, and to infringe upon the protection that society affords to
them in order to maintain that innocence. As such, it is better to exclude children from transitional
justice processes, than to include them.

The second prominent perspective on childhood is the Tabula Rasa discourse. The Tabula Rasa
discourse diverges from the Romantic perspective in that it holds that, rather than being born with an
innate innocence or goodness, children are, in fact, born as ‘blank slates’ and thus can be influenced
and crafted through their interactions with the world around them.56 Therefore, through the facilitation
of positive experiences and adequate guidance, a child ‘will become rational, self-controlled and a
responsible citizen.’57 On the contrary, however, if children have negative experiences, or if influences
upon them leave them exposed to negative actions or behaviours, then these may tarnish their future
personalities, leading them towards criminality and vice, rather than a positive existence.58

In this way, the tabula rasa philosophy would suggest that by including children in transitional
justice we risk creating influences upon them that will subsequently define them and make them more
likely to engage in the types of behaviour they are exposed to. The child may begin the process as an
uncorrupted tabula rasa, however, due to the disturbing subject matter dealt with, particularly its focus
on criminal behaviours, they may leave as a corrupted and immoral being. In this way, the exclusion
of children can be justified on the grounds of their own protection, and the protection of society, as

Reconceptualising Agency and Childhood: New Perspectives in Childhood Studies (New York, Routledge,
2016) 140
54
Mary Jane Kehily, ‘Understanding Childhood’ in Mary Jane Kehily, An Introduction to Childhood Studies
(Maidenhead, Open University Press, 2009) 5
55
Jacqueline Bhabha, ‘The Child: What Sort of Human?’ (2006) 121:5 PMLA 1526, 1534
56
Carol Lynn Martin and Richard Fabes, Discovering Child Development (Boston, Houghton Mifflin, 2009) 12-
13
57
Heather Montgomery, ‘Childhood in Time and Place’ in Martin Woodhead and Heather Montgomery (eds)
Understanding Childhood: An Interdisciplinary Approach (Chichester, John Wiley & Sons, 2003) 64
58
ibid

 14

including children risks creating from them the exact types of people which transitional justice seeks
to hold to account.

By contextualising transitional justice in light of the prevalence of these philosophical perspectives,

it is easier to understand how and why the needs and views of children have rarely been considered in
transitional justice. The ideas presented within these theories have arguably percolated into our
frameworks, and therefore continue to influence decision-making surrounding child inclusion in the
‘adult world’. The protectionism which is advocated in these past philosophies makes the idea of
exposing children to the previously adult-only world of transitional justice seem a decidedly risky
affair.

However, despite the ability of these theoretical perspectives to justify the necessity of excluding
children from transitional justice, they equally arguably represent a wholesale suppression of the
potential of children to engage, contribute and enrich these processes. In this regard, Bhabra notes that
when viewed from these stances, ‘childhood … is romanticized and utopianized and at the same time
peculiarly disenfranchised and disempowered.’59 The realisation that taking a protectionist stance
towards children may undermine the potential for children to engage and contribute has, in the last
thirty years, created a significant shift. The conception of children as malleable beings, susceptible to
corruption and unable to make independent decisions is being increasingly contested and replaced
with a new conception of children as able and willing participants in their own lives, and thus
potentially important contributors to the process of transitional justice. Central to this shift in
perception has been the development of a body of human rights, created specifically in order to protect
the interests of children.

2.2 The UN Convention on the Rights of the Child – Developing Understandings of

the Capacity of Children

Despite the prior unwillingness to include children and their perspectives within transitional justice
frameworks, within contemporary post-conflict schemes there is a growing understanding of the
necessity of engaging with children. The importance of this shift cannot be understated. As is noted by
Smith, ‘children and young people far outnumber adults in many countries requiring transitional
justice [and therefore] excluding them may exclude the majority of the affected population, which is
both counterintuitive and unproductive.’60 Whilst a number of divergent influences have caused the
shift towards greater acceptance of children as, themselves, rational actors, none has arguably had

59
Supra note 55 at 1528
60
Alison Smith, ‘Basic Assumptions of Transitional Justice and Children’ in Sharanjeet Parmar, Mindy Jane
Roseman, Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 33

 15

more importance than the development of a specific regime of children’s human rights, which is
headed by the United Nations Convention on the Rights of the Child (CRC).61

The CRC came into force on 2nd September 1990,62 and today is the most widely ratified of all the
international human rights treaties,63 having been given domestic effect by every country in the United
Nations, aside from the United States, which is only a signatory. 64 The CRC is the most
comprehensive enunciation of the human rights of children and consists of a broad range of economic,
social, cultural, political and civil rights, covering, inter alia, childcare, education, identity, and the
right to life. A number of these rights may provide a legal basis for ensuring the inclusion of children
within transitional justice. However, prior to examining how the CRC facilitates the involvement of
children in post-conflict accountability processes, it is first necessary to determine whom, in fact, the
Convention grants rights to, as the way in which ‘the child’ is defined by necessity determines how far
the protections provided by the Convention extend.

Under Article 1 of the Convention, children are defined as ‘every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier.’ 65 In
accordance with this definition, it can be seen that whilst the CRC sets the maximum age at which the
Convention is applicable to seventeen, by including a caveat allowing for deferral to national
definitions of childhood where the concept is defined differently under national law, the application of
the Convention can end prior to age 17, if under national law the age of majority is earlier. This
definitional flexibility is argued to serve an important function. By deferring, where necessary, to
domestic law, the CRC recognises that understandings of childhood are socially constructed and how
childhood is defined is highly dependent on the diffuse cultural and societal influences at play in
specific states and communities.66 This contingent nature of childhood is noted by Bennet, who holds
that ‘childhood and adulthood are flexible concepts, decided according to cultural stereotypes of aging
and the constraints of social and economic circumstances.’67 The notion that childhood ends when a

61
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577, p. 3
62
ibid at Art 49
63
UN, ‘UN lauds Somalia as country ratifies landmark children’s rights treaty’ (undated) online at:
http://www.un.org/apps/news/story.asp?NewsID=49845#.WVAEVxPytDU [accessed on: 12th June 2017]
64
See, UN, ‘Ratification Status for CRC’ online at:
<http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CRC&Lang=en> [accessed on:
12th June 2017]
65
Supra note 60 (CRC) at Article 1
66
Danwood Mzikenge Chirwa, ‘The Merits and Demerits of the African Charter on the Rights and Welfare of
the Child’ (2002) 10 Int'l J Child Rts 157, 158
67
T.W. Bennett, A Sourcebook of African Customary Law for Southern Africa (Juta, Kenwyn, 1991) 339, quoted
in Kristina Anne Bentley, ‘Can there be any universal children’s rights?’ (2005) 9:1 Int J Hum Rts 107, 117-118

 16

person turns eighteen is, according to Bentley, a profoundly Western concept, which has little
relevance in non-Western cultures.68 As such, rather than impose an alien concept of childhood upon
those societies who define the idea differently, Article 1 of the CRC takes a more flexible approach,
which enables national paradigms of childhood to be given prevalence where necessary.

However, despite Article 1 arguably reflecting the non-homogenous nature of the states parties to
the Convention, the definition has been argued to cause functional complications. Grover, for instance,
notes that under the Article 1 definition, the CRC ‘places limits on who will be afforded its protection
depending on the age of majority in the law applicable to the child in the home country.’69 To this end,
it is argued that, by including a caveat in the definition of a ‘child’, which allows for deferral to
national law, the Convention can potentially produce an unbalanced effect whereupon one person in
one country may be protected by the Convention until they turn eighteen, whilst another individual in
a different country may lose their protection prior to this if their country defines the age of majority
differently. The definition of ‘child’ at Article 1, therefore, has the potential to produce the effect
where two individuals may be the same age, however by virtue of the fact they live in different
countries, one may not be protected by the Convention.70 Indeed, whilst the majority of states parties
to the Convention have set their age of majority at 18,71 seventeen states parties deem majority to be
reached at seventeen years old or below.72 The lowest threshold of all states parties is that found in
Saudi Arabia, which defines the age of majority as having been reached either when a person begins
displaying physical signs of puberty, or when they turn fifteen, whichever comes sooner.73 Under the
definition of a ‘child’ at Article 1 of the Convention, people in these states lose the protections of the
CRC earlier than those in other states.

This outcome of Article 1’s deferral to national law is even more problematic where states parties
define the age of majority differently for males and females. For instance, in Pakistan the age of
majority is set at 16 for females, but 18 for males. In these instances the definition of a child espoused
by Article 1 not only generates inequalities between states parties, it equally creates an inequality
within states parties, protecting one gender for longer than the other. This outcome seemingly
produces the absurd situation where the Convention sanctions a breach of itself, as at Article 2 states

68
ibid at 117
69
Sonja Grover, ‘On Recognizing Children's Universal Rights: What Needs to Change in the Convention on the
Rights of the Child’ (2004) 12 Int’l J Child Rts 259, 260
70
ibid at 261
71
United Nations, ‘World Youth Report, 2005: Young People Today and in 2015’ (United Nations Publication,
2005) 173
72
Human Rights Watch, ‘Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System’
(Human Rights Watch March 2008, Vol. 20, No. 4(E)) 13-14
73
ibid

 17

parties are required to ‘ensure the rights set forth in the … Convention to each child within their
jurisdiction without discrimination of any kind, irrespective of the child's … sex.’74

Given that the CRC is the most important pronouncement of children’s rights within the
international human rights regime, it is a cause for concern that the porous definition enables both an
uneven and discriminatory application of the Convention in and between states parties. Those who,
due to the age of majority in their home state being set lower than eighteen, lose the protection of the
Convention earlier than the prescribed upper limit are thus placed in a position where they are
regarded as adults even though they may not yet have the capacity to enforce their rights as such.

However, despite the national law caveat creating these imbalances in the global protection of
children, it is noted by Tobin that its inclusion was a necessary compromise that ensured the CRC was
able to come to fruition. This is so because, during the drafting process, ‘deep cultural differences
between states … made agreement on the end of childhood elusive…’75 As such, whilst the definition
of the child may create problems with regards to the uniform application of the Convention, it
arguably represents a necessary evil which enabled the creation of the CRC, and the international
protection of children in as broad terms as possible, whilst still allowing the definition to be culturally
relevant in the diffuse societies around the world. Therefore, whilst being an imperfect enunciation,
the CRC’s definition of children and childhood still remains an important determination of what is
meant by these terms, and is a politically necessary device in order to ensure the protections of the
Convention are able to extend as far as possible.

Having determined how far the CRC’s scope reaches with regards to the subjects of the
Convention, it is now necessary to evaluate the substantive provisions of the Convention that have
generated a shift in the global perspective surrounding child rights, and which have helped to justify
the inclusion of children within transitional justice. Whilst the entirety of the rights espoused by the
CRC are highly important in facilitating child-friendly transitional accountability processes, two
articles in particular, Articles 3(1) and 12, have been identified as essential foundations upon which
children’s inclusion can be legally justified, and as ‘general principles’ of the CRC.76 This status
demarcates them as rights that are necessary to ensure the fulfilment of all other rights in the
Convention. 77 Whilst these provisions are arguably the most relevant in terms of justifying the
inclusion of children within transitional justice accountability processes, it is important to note that, as
is the case with all human rights instruments, the rights contained within the CRC are interrelated,

74
Supra note 61 at Art 2
75
John Tobin, ‘Justifying Children’s Rights’ (2013) 21 Int’l J Child Rts 395, 400
76
Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (The Hague,
Kluwer Law International, 1999) 78
77
UN Committee on the Rights of the Child (CRC), General comment No. 14 (29 May 2013), CRC /C/GC/14,
para 1

 18

interconnected, and indivisible. 78 Accordingly, the whole regime of rights espoused within the
Convention must be considered and ensured when designing and operating transitional justice
processes.

The first provision of the CRC, which has been seen as a central facet of the rights of children and
their participation within transitional justice is found at Article 3(1) of the Convention, wherein it
states that ‘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.’79

In general terms, the idea of ‘the best interests of the child’ is said to relate to the child’s well-
being,80 in the sense that where an action is taken which will impact on the life of the child, or of
children more generally, those making that decision must give careful consideration as to how that
decision will affect the well-being and livelihood of the child or children concerned.81

According to the Committee on the Rights of the Child (the Committee), in its General Comment 14,
which relates specifically to Article 3(1), the notion of ‘the best interests of the child’ has as its basis the
goal of ‘ensuring both the full and effective enjoyment of all the rights recognised in the Convention
and the holistic development of the child.’82 In seeking to achieve these outcomes, the concept is
recognised as having three distinct elements. Firstly, it is a ‘substantive right’ in so far as it requires
public and private institutions to actively determine what course of action is best for the child in a
particular circumstance, and then ensure they act in a way that takes that determination into account.
Secondly, Article 3(1) is a ‘fundamental legal principle’ meaning that it should be utilised in order to
interpret legislation and case law in a way that ensures that the best interests of children are adequately
taken into account. Finally, it is a ‘rule of procedure’ whereupon if consideration is being given to an
issue which concerns children, those considering the best course of action must take into account how
the decision will affect children or, if appropriate, a specific child.83

As applied to the framework of transitional justice, Article 3(1) therefore forms the legal
foundation for ensuring that all transitional justice processes are child friendly and, where necessary
and appropriate, child inclusive. In accordance with Article 3(1) post-conflict accountability schemes
must, during their initial design and construction, take heed of the potential impact they might have on
children, and be constructed so as to ensure that any negative impact is minimised. Furthermore,
where determinations of accountability themselves involve or impact children, the bodies established

78
ibid at para 16(a)
79
Supra note 61 at Art 3(1)
80
UNHCR, ‘UNHCR Guidelines on Determining the Best Interests of the Child’ (May 2008) 14
81
ibid
82
Supra note 77 at para 4
83
ibid at para 6

 19

to pursue accountability must have the welfare of those children as a primary consideration, ensuring
that their operations protect and respect the rights of children. Finally, should any legal questions arise
in the course of either designing or implementing transitional accountability processes, the body
tasked with interpreting the law must do so in a way which recognises the rights of children and their
best interests.

However, despite forming the platform upon which the meaningful and safe participation of
children in transitional justice is built, Thomas and Percy-Smith note that the Article seemingly
facilitates a very broad level of intrusion by adults into the lives of children, by enabling the
determination of what is in a child’s best interests to be decided by adults, rather than by children
themselves.84 This is problematic as, by operating in this way, the best interests principle ‘can be
utilised as a powerful tool in the hands of adults to defend any action or decision made on behalf of
children.’ Giving this level of scope to adults to decide what is best for children arguably leaves the
door open for the politicization of the principle, which can be used to justify side-lining children from
transitional justice processes altogether, on the basis that their participation might, in some way, affect
their well-being. If operating in this way, rather than help to facilitate the inclusion of children within
transitional justice, the best interests principle might, instead, form the legal basis for their exclusion.85

However, whilst the best interests principle does seemingly give adult decision-makers the ability
to make determinations regarding what is best for children, it should be noted that although the child’s
best interests should be a ‘primary’ consideration when making decisions that will affect them, it
should not, in all circumstances, be the only consideration.86 In this way, it is incumbent upon decision
makers to undertake a deeper analysis than simply their own personal determination of what is best for
the child’s welfare, and evaluate the impact of their decision in line with other considerations, such as
the child’s own wishes.87 Indeed, as is noted by Matthew et al., ‘to counteract notions of the adult
knowing best, participation by the child is central to ensuring the best interests of the child.’88

As such, the best interests principle can be said to represent the first crucial element of the
framework for the inclusion of children within transitional justice. By requiring decision makers to
take account of children in the decision making process, Article 3(1) obliges those constructing and
implementing transitional justice to consider children, thus opening the door for their participation.
Whilst the Article seemingly gives adults significant discretion to make determinations on behalf of

84
Gerison Lansdown, ‘The realisation of children’s participation rights: critical reflections’ in Barry Percy-
Smith and Nigel Thomas,’A Handbook of Children and Young People’s Participation: Perspectives from Theory
and Practice (Oxford, Routledge, 2010) 19
85
ibid
86
Supra note 80 at page 15
87
David Archard and Marit Skivenes, ‘Hearing the Child’ (2009) 14 Child and Family Social Work 391, 392
88
Anita Mathew, Allessandro Martelli, Rita Bertozzi and Nicola De Luigi, ‘Commentary 2’ in Supra note 84 at
123

 20

children, as will be seen, this outcome is mitigated by other important rights within the Convention,
which, as one of the general principles, Article 3(1) must assist to facilitate. As such, by ensuring that
consideration is given to children when transitional justice accountability processes are being planned
and implemented, Article 3(1) is a central and important element in the promotion of children’s
inclusion within transitional justice.

The next key Article of the CRC that can be said to promote the participation of children in
transitional justice is Article 12(1), which holds that: ‘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.’89 Furthermore, at Article 12(2) it provides that children must be allowed to participate in ‘any
judicial or administrative proceedings affecting the child’, whether this is in person, or through an
appointed representative.90

As is noted above, Article 12(1) builds on the ‘best interests’ principle in order to facilitate not only
the consideration of children during relevant decision-making processes, but also their participation in
those processes. Furthermore, given that Article 12 is equally a general principle of the CRC, it
follows that it informs the application of the ‘best interests’ principle, so as to require states to take
children’s opinions regarding what is in their best interests into account when making this
determination.91 According to the Committee, the fulfilment of the participatory rights espoused under
Article 12(1) of the CRC requires States Parties to ensure that children are seen as the holders of
human rights, and that they are given the ‘freedom to express views and [that] the right to be consulted
in matters that affect him or her is implemented from the earliest stage….’92 Equally, States must seek
to promote their involvement in a multitude of different areas including within ‘legal proceedings; and
in the development of policies and services, including through research and consultation.’93 Finally, in
order to ensure children’s participation is adequately enabled, States must facilitate child-friendly
approaches in all areas, whereupon children are listened to and their right to a voice is promoted.94

In line with these requirements for the implementation of Article 12(1), it is clear that the Article
seeks not only to guarantee children a voice, but also a right to have their views heard and properly
considered. 95 The importance of this in relation to the promotion of children’s participation in

89
Supra note 61 at Art 12(1)
90
ibid at Art 12(2)
91
Laura Lundy, ‘‘Voice’ is not enough: conceptualising Article 12 of the United Nations Convention on the
Rights of the Child’ (2007) 33:6 British Educational Research Journal 927, 938
92
UN Committee on the Rights of the Child (CRC), General comment No. 7 (2005): Implementing child rights
in early childhood, 1 November 2005, CRC/C/GC/7, Para 14(a)
93
ibid at para 14(b)
94
ibid at para 14(c)
95
Supra note 91 at 931

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transitional justice cannot be underestimated. By guaranteeing children the right to have their voice
heard and considered in all matters affecting them the CRC guarantees to children the right to express
their views during the operation of transitional justice in the state and also within the process of
creating the transitional justice programme. Where governments take seriously their obligations under
Article 12(1) of the CRC, the previous position of children as ‘passive participants’ within transitional
justice is, arguably, now indefensible. In order to be in compliance with Article 12(1), transitioning
states must take the views of children into account in the construction of the transitional justice
models, thus ensuring, at a minimum, that children are able to express their views on how the
transitional justice process should operate. As will be seen in the next section, this will arguably assist
in the creation of child-friendly transitional justice processes which are able to better meet the needs to
children, and thus ensure a more effective contribution from children. Furthermore, the express
mention, at paragraph (2) of the Article, of the rights of children to express their views within ‘any
judicial and administrative proceedings affecting the child’ creates a further foundation for the
inclusion of children within transitional justice accountability processes, solidifying children’s right to
take part in accountability proceedings where they either have pertinent information, or where they
themselves are accused of wrongdoing.96 As a result, Article 12 seemingly therefore provides a strong
legal basis for the creation of transitional justice processes that are designed, at least in part, with
children in mind.

However, the extent to which Article 12 of the CRC in fact guarantees the right of children to
participate has been questioned. In this regard, Lücker-Babel notes that the right to be heard and to
participate under Article 12 is, in actuality, far more limited than is often made out.97 In her view,
when seen in conjunction with both Articles 3(1) and 5 of the Convention, rather than seeking to
promote the inclusion of children in a broad array of different areas that may affect them, Article 12
has a far more limited scope and ‘requires a restrictive interpretation … limiting children’s
participation and their right to be heard to cases affecting them directly.’98 This is so because, under
Article 3(1), the Convention enables adults to make decisions in the best interests of the child in ‘all
actions concerning children’,99 whilst Article 5 defers to parents to provide ‘appropriate direction and
guidance’ in enabling the enjoyment of the rights by the child.100 In this way, these Articles both
explicitly and implicitly limit the decision-making autonomy of children, enabling broader decisions
relating to their lives and welfare to be made by adults and resultantly it is logical that, so as to avoid a

96
Supra note 61 at Art 12(2)
97
Marie-Françoise Lücker-Babel, ‘The right of the child to express views and to be heard: An attempt to
interpret Article 12 of the UN Convention on the Rights of the Child’ (1995) 3 Int'l J Child Rts 391, 396
98
ibid
99
Supra note 61 at Art 3(1)
100
ibid at Art 5

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conflict between the rights in question, Article 12 should only apply in very specific circumstances,
which ‘concretely affect a specific child.’101

Accordingly, in order to invoke their Article 12 right to participate and be heard there must be a
definitive nexus between the situation being considered and the child in question.102 The child must
have a direct and personal interest in the outcome of the decision being made, with connections that
are indirect, based, for example, on the child’s status as a member of a particular community or social
group, not being sufficient to activate the Article.103 If this understanding of the Article is correct, it
has a significant impact on the ability of children to participate in transitional justice. This is
particularly so in relation to the period of consultation which may occur in order to determine the
design and construction of the transitional justice model. At this stage, as per Lücker-Babel’s
determination of the scope of Article 12, the participation of children who were not themselves
directly victimised during the conflict, and instead are mere members of the broader population of the
state undergoing the transition, would not be guaranteed a right to participate in the deliberations as
there would not exist such a concrete connection to the situation in question so as to require the state
to take their views into account. This is despite the fact that, as noted, children often form the largest
population group in post-conflict states, and thus are arguably the group with the greatest to lose from
a failed transitional justice process. As a result, the contribution of children to the process of
transitional justice as a whole would be greatly diminished, potentially resulting in a process that lacks
relevance to them and thus is unable to achieve its required objectives where children are concerned.

However, despite the articulation of this limited interpretation of Article 12, other scholars have
noted the inadequacy of such a restrictive view of the scope of the Article. Lundy, for instance, notes
that far from representing the correct interpretation of Article 12, the idea that the participation of
children should be restricted to situations where they have a concrete interest was, in fact, rejected
during the drafting of the Convention.104 As such, according to McGoldrick, Article 12(1) ‘clearly
extends to much wider matters than simply those in which the child has a specific right.’105

In light of this, to interpret Article 12 in the highly limited fashion proposed by Lücker-Babel is to
ignore the intention of the drafters of the Convention to enable the participation of children on a more
wide-ranging scale. Indeed, such would also go against the interpretation espoused by the Committee,
which in its General Comment 12 recognises that participation must be enabled for all children

101
Supra note 97
102
ibid
103
ibid
104
Supra note 91 at 930
105
Dominic McGoldrick, ‘The United Nations Convention on the Rights of the Child’ (1991) 5 Int'l J L & Fam
132, 141

 23

‘affected directly or indirectly by social, economic or cultural conditions of living in their society.’106
Whilst it is so that the operations of Articles 3(1) and 5 do give parents and adult decision-makers the
ability to determine how to make decisions on behalf of the child, so long as they take into account the
best interests of the child, this does not exclude children from participating in these processes. Rather,
Article 12 arguably acts to inform Articles 3(1) and 5 in so far as, in order to determine what is in the
best interests of the child, the child themselves should have the ability to voice their opinions and have
those opinions considered. Accordingly, it must be said that the scope of Article 12 of the CRC
enables the participation of children not only in matters that directly affect them, but in a broader array
of situations, including those related to the planning and construction of transitional justice
accountability processes.

2.3 Looking Forwards – A Framework for Children’s Inclusion in Transitional Justice

The CRC’s entry into force has marked a new era for children, helping to broaden the recognition
of their rights within a range of social, cultural and political spheres. This enhanced prominence has
the potential to contribute greatly to the field of transitional justice. The rights espoused by the
Convention, which guarantee the child, inter alia, the right to be taken into consideration in the
planning process, the right to give and to receive information during the process, and the right to
participate, are all crucial to ensuring that children are able to play an active role in the transitional
process.

The usefulness of the Convention within transitional justice is not simply as a tool to inform states
how to undertake their transitions, ensuring the rights of children are adequately respected and
represented during the process, it is equally a blueprint for the outcome of the transitional process.
Transitional justice is, in essence, about reform and renewal. It operates in states that have been torn
apart by conflict and seeks to create therein a more peaceful future where human rights are respected
and protected. By infusing the transitional process with the language and practice of children’s rights,
transitional states can set a benchmark for the future, thus strengthening the position of children in
post-conflict society.

The next sections of this paper outline three distinct areas of the transitional justice process where,
it is argued, children must be afforded a more prominent and effective role. The first is during the
period of public consultation, which must be undertaken in order to design an appropriate transitional
justice scheme. It will be argued that including children within this process both satisfies their rights
under the CRC and helps to create modalities of accountability that are relevant for children and take
their particular needs into consideration. Secondly, the ability of transitional justice to accommodate
child witnesses will be considered. To this end it will determine how transitional justice accountability

106
UN Committee on the Rights of the Child (CRC), General comment No. 12 (20 July 2009), CRC/C/GC/12,
para 87

 24

processes can be constructed so as to better reflect the needs of child witnesses, thereby enabling
children who have information about offences committed during the conflict to impart that
information in a safe and secure environment which abides by international standards. Finally, the
position of transitional justice in dealing with children who themselves have been accused of crimes
will be evaluated. In this regard, it will seek to identify the most appropriate means of obtaining the
accountability of child perpetrators in order to respect their status as children, whilst ensuring that
some semblance of justice is achieved for their victims.

 25

SECTION THREE

CHILDREN AS CONSULTANTS WITHIN TRANSITIONAL JUSTICE

The first element of the transitional justice process where it is argued that children should be
afforded a greater role is the within the initial and on-going processes of public consultation which are,
or should be, implemented to design and sculpt the transitional experience in the post-conflict state
concerned. This section initially highlights how and why public consultation has been increasingly
seen as an essential facet of effective transitional justice processes. It will be noted that in order for
public consultation to have a positive impact on the transitional justice process it must be constructed
and implemented in a way that is fair and inclusionary and seeks to obtain the opinions of all those
affected by the conflict, including children. It will discuss the role that can be played by children in the
consultation process, and highlight means by which transitional justice actors can ensure the efficacy
of children’s participation in consultations.

3.1 The Importance of Consultation in Effective Transitional Justice Processes

Within the context of transitional justice, consultation relates to the means by which transitional
justice actors seek to engage with affected populations in the post-conflict state, in order to gather their
opinions as to the design and operation of the transitional justice project.107 Consultation in transitional
justice should not be seen as a singular event, but rather must be viewed as an on-going process that
enables stakeholders to both influence the decision to establish particular transitional accountability
mechanisms (or, indeed, the decision of whether to establish any mechanisms at all), and to feed back
to authorities regarding their perceptions of the effectiveness of transitional justice measures both
during and after the process. 108 Consultation exercises can take many forms, which may vary
depending upon the population whose views are sought, however in general terms consultancy actors
utilise interviews, discussion groups, and surveys to collect information and opinions from relevant
stakeholder groups.109

The significance afforded to public consultation processes in designing and maintaining effective
and relevant transitional justice accountability schemes has undergone a substantial shift since the
earliest elucidations of the field. Whilst consultation has been a feature of many former transitional
justice processes, past schemes have often been subject to criticism regarding the implementation of

107
Virginie Ladisch and Clara Ramírez-Barat, ‘Between Protection and Participation: Involving Children and
Youth in Transitional Justice Processes’ in Clara Ramírez-Barat (ed) Transitional Justice, Culture, and Society:
Beyond Outreach (USA, SSRC, 2004) 186-187
108
ibid
109
Harvey M. Weinstein, Laurel E. Fletcher, Patrick Vinck and Phuong N. Pham, ‘Stay the Hand of Justice:
Whose Priorities Take Priority?’ in Rosalind Shaw and Lars Waldorf (eds) Localizing Transitional Justice:
Interventions and Priorities after Mass Violence’ (Stanford University Press, 2010) 37

 26

consultations. These criticisms have included, inter alia, the failure to conduct consultations in an
inclusive manner by not seeking the insights of certain populations, particularly women,110 the failure
to undertake consultations in a timely and appropriate manner,111 the failure to adequately feed back
community concerns or suggestions to transitional justice policymakers and mechanisms so as to
ensure the continued satisfaction of the stakeholder population,112 and, indeed, a failure to conduct any
consultations at all.113

These failures have been suggested to cause problems with regards to the overall effectiveness of
the transitional process, and to the achievement of accountability for crimes committed during
conflict. For instance, as is noted by Triponel and Pearson, where consultation processes merely
engage in public opinion gathering, without seeking to adequately feed the opinions offered back into
the system in order to refine and improve it, the resultant process may lack both relevance and
stakeholder ownership, both of which are regarded as essential elements required in order to achieve
adequate accountability.114 As such, ‘a transitional justice system that incorporates feedback from the
public … ultimately has a better chance of achieving its aim of justice for victims.’115 Equally, as will
be discussed in greater depth below, the failure to engage with affected populations in an inclusive and
intersectional manner can lead to important minority viewpoints being ignored or missed, the effect of
which is, again, to diminish necessary ownership of the process, and entrench inequality and the
subjugations of various groups within the state concerned.116

The recognition of the negative effects caused by a failure to adequately consult with populations
in transitional states has led to a renewed emphasis being placed on the importance of comprehensive
public consultation at all stages within the transitional justice process. In a 2010 guidance note on
transitional justice, by the Secretary General of the United Nations, it is noted that ‘national
consultations are a critical element of the human rights-based approach to transitional justice… [as]
public participation reveals the needs of communities affected by conflict … allowing States to craft

110
See, for example, ICTJ, ‘Confronting Impunity and Engendering Transitional Justice Processes in Northern
Uganda’ (ICTJ Briefing, June 2014) 5
111
See Anna Triponel and Stephen Pearson, ‘What Do You Think Should Happen? Public Participation in
Transitional Justice’ (2010) 22:1 Pace Int’l L Rev 103, 137
112
See, OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: National Consultations on Transitional Justice’
(New York and Geneva, United Nations, 2009) 26
113
See, for example, Chona R Echavez, Leah Wilfreda RE Pilongo, Aruni Jayakody, Ahmad Saboor Hamza
Noorzai and Michaela Markova, ‘Transitional Justice: Views from the Ground on How Afghanistan Fares’
(AREU, October 2016) 24
114
Supra note 111 at 142
115
ibid
116
See, for example, Supra note 112 at 16

 27

an appropriate context-specific transitional justice programme.’117 This growth in the recognition of

the importance of consultation has generated a greater number of calls for the inclusion of proper
consultation processes as a matter of policy. For instance, following the conflict in Burundi, the UN
called on the state to engage in:

A broad-based, genuine and transparent process of consultation … with a range of national

actors and civil society at large, to ensure that within the general legal framework for the
establishment of judicial and non-judicial accountability mechanisms … the views and the
wishes of the people of Burundi are taken into account.118

Furthermore, public opinion was sought at all stages during the establishment of the Gacaca courts
in Rwanda, and the opinions sought were utilised in order to enhance the mechanisms to as to increase
its effectiveness at achieving accountability.119

However, despite clear improvements in the acceptance and implementation of consultancy as an

essential facet of transitional justice, as will be shown below significant issues remain which arguably
may lead to continued negative outcomes in transitional justice processes. In particular, whilst the
importance of inclusivity has been broadly recognised as essential to meaningful consultation,
children, who as shown above are often disproportionately affected by conflict and thus are important
stakeholders in the transitional justice process, are often sidelined and unable to adequately participate
in discussions surrounding transitional justice.120 The next section therefore explores the role that can
and should be played by children during consultation processes and argues that failing to seek the
views of children is both a breach of their human rights, and an aberration which may risk the
effectiveness of the transitional justice process as a whole.

3.2 Why Seek the Opinion of Children and Youth?

The subjugation of children within the field of transitional justice is equally applicable to the
periods of consultation that help shape and refine post-conflict accountability projects.121 However,
having determined the importance of consultation exercises to the overall outcome of the transitional
justice process, the question must be asked; how do children fit within the discourse and practice of

117
Ban Ki-Moon, ‘Guidance Note of the Secretary General: United Nations Approach to Transitional Justice’
(March 2010) United Nations, online at:
<https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf> 9 [accessed on 8th August
2017]
118
Supra note 111 at 107
119
ibid at 123
120
Cécile Aptel and Virginie Ladisch, ‘Through a New Lens: A Child-Sensitive Approach to Transitional
Justice’ (August 2011, International Center for Transitional Justice) 36
121
Supra note 107 at 187

 28

consultation? Essential to answering this question is determining why children’s views must be
incorporated into discussions surrounding the transitional justice arrangements.

The arguments for ensuring that the views of child stakeholders are heard when developing
transitional justice schemes are twofold. The first of these arguments, as was shown in the discussion
of Article 12(1) of the CRC in section 2 above, rests on a legal analysis that positions children as
holding rights under international law which obligate states to ensure their participation ‘in all matters
affecting the child.’122 This legal position is further solidified by Article 13(1) of the CRC, wherein it
states that children equally have a right to ‘…impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other media of the
child's choice.’ 123 However, as well as there being a demonstrable legal foundation for child
inclusivity in consultation schemes, there are also noted to be pragmatic reasons for which it should be
deemed necessary for states to include children within their transitional consultation processes.

One such argument in favour of including children within transitional justice consultations is that
children are able to bring important and unique perspectives to the table, which would otherwise be
lost if only adults were consulted.124 Incorporating these perspectives into the design and operation of
transitional justice accountability processes can be crucial to their success as the achievement of
adequate accountability is predicated upon implementing systems of accountability that hold relevance
to affected populations.125 In situations where accountability processes are seen as distant, or are
insensitive to the needs of stakeholders, as has been the case in the ICTR, the overall outcome can be a
perception of the process as having only achieved a minimal level of accountability.126 In this regard,
by including the views of children during consultations regarding transitional justice, policymakers
can ensure that the design of the process implemented is responsive, relevant and reflects the needs of
as many stakeholders as is possible, which in turn with give the process a greater chance of achieving
its aims.127

The efficacy of considering the perspectives of children when developing policy is well rehearsed
within the literature on children’s rights and responsibilities. For example, in a study of the role of
children living in Bhutanese refugee camps in contributing to the development of camp policy, Evans

122
Supra note 61 at Art 12(1)
123
ibid at Art 13(1)
124
Save the Children, ‘So you want to consult with children? A toolkit of good practice’ (November 2003) 57;
Cécile Aptel and Virginie Ladisch, ‘Through a New Lens: A Child-Sensitive Approach to Transitional Justice’
(August 2011, International Center for Transitional Justice) 35
125
Gerison Lansdown, ‘Promoting Children’s Participation in Democratic Decision-making’ (February 2001,
UNICEF) 4
126
Victor Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme’ (2005) 3 J
Int’l Crim Just 950, 955
127
Supra note 60 at 52

 29

has found that that where children were invited to participate in camp policy-making decisions they
contributed significantly to positive outcomes, and raised important concerns that would otherwise
have been unexplored. 128 Furthermore, in their research on youth perspectives in post-conflict
Northern Ireland and Bosnia Herzegovina, Magill and Hamber note that especially where children do
not take a direct part in the fighting, their perspectives are essential as they are less prone to
mentalities of division, and therefore can be crucial in finding solutions which transcend divides.129

As a result of their unique ability to analyse scenarios from the lens of childhood, children’s role as
information providers is thus highly important in developing transitional justice accountability policies
that adequately reflect their needs. Children are key stakeholders in transitional justice, and therefore
for any accountability exercise to be deemed successful, it must be relevant to them and capable of
meeting their requirements and understandings of accountability.130 Failing to include children risks
losing their voice, or deferring their perspective to an adult’s interpretation of it, and risks creating an
accountability process that is distant to them. This in turn can lead to a feeling of marginalization
amongst children and young people, which itself ‘may be a source of renewed violence and unrest.’131
Resultantly, as is noted by Ramírez-Barat, ‘gathering information from children and youth is
fundamental to shape [transitional justice] programmes that effectively address their needs and
demands.’132

As well as assisting to develop a more inclusive and relevant transitional justice accountability
process, it has been argued that including children in consultation processes can itself directly
contribute to the achievement of the broader, long-term aims of transitional justice. This is so because,
according to Bragg, by being given the opportunity to contribute their voice to an important decision-
making process, children become more democratically engaged and are taught how important
democratic decisions are made. 133 Accordingly, ‘consulting young people, and more specifically
involving them in decision-making, is not only about recognising their rights but also about

128
Rosalind Evans, ‘The Impact of Concepts of Childhood on Children's Participation in Bhutanese Refugee
Camps’ (2007) 17:1 Children, Youth and Environments 171, 192
129
Clare Magill and Brandon Hamber, ‘“If They Don’t Start Listening to Us, the Future Is Going to Look the
Same as the Past”: Young People and Reconciliation in Northern Ireland and Bosnia and Herzegovina’ (2011)
43:2 Youth and Society 509, 523-524
130
Supra note 60 at 52
131
ibid at 65
132
Clara Ramírez-Barat, ‘Engaging Children and Youth in Transitional Justice Processes: Guidance for Outreach
Programs’ (International Center for Transitional Justice, November 2012) 12
133
Sara Bragg, ‘Consulting young people: a literature review’ (November 2010, Creativity, Culture and
Education) 20

 30

developing skills of cooperation which are necessary in order to achieve a more cohesive and
democratic society.’134

The added significance of this democratic capacity building amongst children and young people in
the post-conflict arena is noted by Lansdown, who states in relation to increasing child inclusivity in
consultation processes that ‘in those countries facing internal conflict and tension that threatens
democracy, such experiences take on an even greater significance.’135 Whilst, as noted, the role of
children within transitional justice consultations has been limited, the benefits to democracy gained
through engaging children in decision-making processes are visible in other areas. For instance,
Cabannes, in a study of children’s participation on city forums in Latin American cities, found that
where children were able to take part in consultations regarding city operations and improvements,
they contributed much to the eventual outcome of the projects, and gained ‘a greater understanding of
the principles of democracy and the meaning of real citizenship.’136 Equally, Tisdall et al., note the
potentially positive effect that engagement in youth parliaments can have on the understanding of
young people about democracy and their ability to contribute to democratic processes in adulthood.137

As such, given the potential positive pragmatic benefits that the inclusion of children within
consultative processes can have, it is clear that children can and should play a role in developing and
designing the transitional justice process. The inclusion of children within transitional justice
consultations processes can help strengthen democratic principles both contemporaneously and in the
future. Democracy building is widely recognised as being a central facet of the peacebuilding aims of
transitional justice,138 and thus by ensuring the representation of children within projects that empower
their democratic citizenship, post-conflict states potentially have a greater chance of maintaining
democratic values into the future. In this way, child involvement within transitional justice
consultation projects can, arguably, directly contribute to the achievement of the aims of transitional
justice. Furthermore, child inclusive consultations help to ensure that accountability processes are
relevant to their needs as stakeholders, and thus the final transitional justice project is able to deliver
its aims in a way that can be understood by all who it affects. Therefore, it is clearly arguable that,
both for legal and pragmatic reasons, children should be regarded as essential consultants within
transitional justice.

134
ibid
135
Supra note 125 at 6
136
Yves Cabannes, ‘Children and young people build participatory democracy in Latin American cities’ (2006)
18:1 Environment & Urbanization 195, 207
137
EKM Tisdall, John M Davis and Michael Gallagher, ‘Reflecting on children and young people’s participation
in the UK’ (2008) 16:3 Int’l J Ch Rts 343, 345
138
Robert Ricigliano, ‘Networks of Effective Action: Implementing an Integrated Approach to Peacebuilding’
(2003) 34:4 Security Dialogue 445, 447-448

 31

However, whilst seeming to provide a strong basis for ensuring child inclusivity in transitional
justice consultation processes, the strength of these pragmatic arguments can also been questioned.
Whilst a number of arguments against the inclusion of children in consultation processes exist, the
central theme of these is the contention that children lack the required maturity to properly discuss and
relay information regarding their needs and experiences. These arguments against including children
within consultation processes are noted by Alderson, who states that historically, within the literature
surrounding children’s participation, there existed streams of thought which held that ‘to consult with
children is to confuse or worry them’ and that children ‘do not yet have clear, sensible views to
express.’139 Indeed, Qvurtrup et al., speaking of the dominant position during the 1990s, held that
‘children [are] often denied the right to speak for themselves either because they are held incompetent
in making judgments or because they are thought of as unreliable witnesses about their own lives.’140

The need for those involved in consultations to hold a certain level of maturity in order to be able to
adequately act as a consultant is, putatively, all the more necessary when issues surrounding
transitional justice are discussed, as such consultations will, by necessity, cover sensitive, complex and
distressing subject matters. As such, if views regarding the incompetence of children to properly
engage in such discussions can be said to represent the situational reality, then arguably to consult
with children would be to risk, at best, wasting time and resources, or, at worst, psychologically
damaging the child consultant. In such cases, consulting with children would be inadvisable and may,
in fact, put the well-being of the child at risk.

However, despite the contestation regarding the immaturity of children to participate in

consultation processes, it is clear that children can and have contributed positively to the discussion
surrounding the development of policy. The examples provided above show that despite their age
children do have the potential to influence policy, and to help maximise its effectiveness. Indeed, it
has been argued that it is precisely the fact that they are immature, by adult standards, which allow
them to do so. The contention that immaturity may be beneficial during consultation processes is
noted by Dewey, who argues that it has the power to represent ‘a positive force or ability.’141 This is so
because the immaturity of children allows them to draw on a realm of possibility that is not yet
confined by the parameters that are established by the adult world.142 Resultantly, Nishiyama notes
that ‘since children are immature … they inevitably utilise their available possibilities to survive by

139
Priscilla Alderson, Young Children’s Rights: Exploring Beliefs, Principles and Practice (London, Jessica
Kingsley Publishers, 2008) 138
140
Matt Qvortrup, Childhood matters: Social theory, practice and politics (Aldershot, Ashgate Publishing, 1994)
2
141
John Dewey, Democracy and education: An introduction to the philosophy of education (London, Macmillan,
1916) 49
142
Kei Nishiyama, ‘Deliberators, not Future Citizens: Children in Democracy’ (2017) 13:1 Journal of Public
Deliberation 1, 6

 32

learning from others, employing their sense of wonder or imagination, or challenging anything without
fear of failure.’143 Indeed, numerous examples of the important influence of children’s questioning of
the status quo exist, including the work of Malala Yousefzai in challenging the Taliban’s refusal to
allow girls to receive education,144 and the movement started by Memory Banda in Malawi which
questioned why girls should, on the pretence of tradition, be sent to camps to learn how to sexually
gratify men.145

As such, despite contentions to the contrary, children clearly can contribute greatly to the creation
of ideas and policy and, as such, rather than representing a reason for excluding children from
consultative processes, their relative immaturity can instead be viewed as an asset which enables them
to bring an unbridled perspective to discussions.

To this end, given both the legal duty incumbent on states under Article 12(1) of the CRC, and the
positive pragmatic effects that consultation with children can have on the transitional justice process
as a whole, there is a clear necessity to ensure that transitional justice consultation programmes
include the views of children within their remit. Whilst, as will be discussed below, care must be taken
when consulting with children to ensure practices are child-sensitive and child-friendly, children’s
lack of distortion by the adult world, and their willingness to question established norms, makes them
important actors in the transitional justice consultation process and enables them to contribute much to
the eventual outcome of that process. Given this understanding, the question must then be asked, how
can consultation processes be developed so as to ensure they are able to adequately take account of the
views of children.

3.3 How Should Transitional States Consult with Children?

Having determined why children should be included within the consultation phase of transitional
justice, the question of how this should be done arises. Transitional justice consultation processes are
complex and sensitive enterprises, which require a high level of planning and knowledge in order to
implement them effectively.146 Whilst a comprehensive analysis of the intricacies of how consultative
processes involving children should operate is beyond the scope of this work, certain essential

143
ibid
144
See, Malala Yousefzai and Christina Lamb, I Am Malala: The Girl Who Stood Up for Education and Was
Shot by the Taliban (New York, Little Brown and Company, 2013)
145
Denise Dunning and Joyce Mkandawire, ‘Teenage girls in southern Malawi reject ‘sexual cleansing’ (18th
September 2014) The Guardian, online at: < https://www.theguardian.com/global-development-professionals-
network/2014/sep/18/end-child-marriage-malawi-girls> [accessed on 14th June 2017]
146
Dr Cordbin Lyday and Jan Stromsen, ‘Rebuilding the Rule of Law in Post-Conflict Environments’ (USAID,
May 2005) 15

 33

elements must be considered when seeking to determine how best to consult with children in order to
satisfy their human rights, and effectively achieve the pragmatic purposes for their inclusion.

Ensuring appropriate practices when consulting with children has been noted by the CRC
Committee to form an essential element of the adequate implementation of their human rights. As is
noted in its General Comment 12, in satisfying their obligations under Article 12, states must act in a
way that encourages children to develop and express their opinions by, for instance, ‘providing an
environment that enables that child to exercise his or her right to be heard,’ and developing practices
which facilitate the obtaining of information from the child in question, taking into account their
particular needs.147 Furthermore, as was shown in section two, simply listening to children’s views is
not sufficient to enable post-conflict states to satisfy Article 12. Rather, in order to be in line with the
requirements of Article 12 of the CRC, states must act on the opinions of the child, and seek to
incorporate them into the policies for which the child’s opinion is being sought.148

In determining how to implement a child-inclusive consultative process, an initial concern is

deciding which children should be selected to contribute their voices. Historically, as noted above, the
most common answer to this question is none. Instead, in scenarios where children have been
considered in the pre-emptive stages of transitional justice, consultative processes have chosen to take
counsel from adults positioned as child rights activists or scholars, rather than from children
themselves.149 For instance, a preparatory report for the South African TRC, detailing a workshop held
regarding the effect of conflicts on children, highlights that testimony on children’s experiences was
given by activist Graça Machel, and no children themselves were present.150 However, given that both
pragmatic and legal arguments now exist which promote and require the direct involvement of
children in consultation, it is now necessary for states to develop some means of choosing which
children’s voices should be heard.

According to guidance documents regarding engaging in consultations with children, a number of

important considerations must be made when determining which children to include.151 Firstly, it is
noted that in order to ensure the most fruitful use of time and resources, only those children who have
an ‘interest, direct experience or expertise in issues relating to the subject of the consultation’ should

147
UN Committee on the Rights of the Child (CRC), General comment No. 12 (20 July 2009), CRC/C/GC/12,
para 11
148
ibid at para 28
149
See, for example, Saudamini Siegrist, ‘Child Rights and Transitional Justice’ in Sharanjeet Parmar, Mindy
Jane Roseman, Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 17
150
South African TRC, ‘Report on the consultative workshop: Children and youth: Exposure to armed conflict’
(17th September 1996) online at: http://truth.wwl.wits.ac.za/doc_page.php?did=1241&li=coll [accessed on: 18th
June 2017]
151
Save the Children, ‘So you want to consult with children? A toolkit of good practice’ (November 2003) 18

 34

be selected.152 Secondly, the children selected to take part in consultations must relate to a broader
population of children for whom they can be said to, at least in part, represent the views of.153 Finally,
states must ensure appropriate diversity within their sample, so as to take account of varying
perspectives that might be influenced by factors such as a child’s age, gender, religion or ethnicity.154

As so applied to the transitional justice consultation process, each of these requirements has
particular significance. With regards to ensuring children selected have knowledge of the situation to
which the consultation relates, this requirement necessitates that only children who have experienced
the conflict should be included in any sample, and, for instance, children who only arrived in the state
following the conclusion of the conflict, or children who have only heard about the conflict through
others, should not be selected. In a situation where qualitative consultation is necessary in order to
seek opinions that will help sculpt and define the post-conflict justice process,155 this requirement is,
seemingly, sensible, as children who have personal experience of the conflict will likely be better
placed to engage in discussions surrounding recovery from it. Regarding the second selection criteria,
by requiring children selected to relate to a particular group, states can maximise the number of
children whom the child can be said to speak for, thus making the overall process more inclusive and
democratic.156 This, accordingly, will increase community ownership of the eventual accountability
process, thus making it more relevant to the populations whom the child can be said to represent.157
Equally, being associated with a broader group assists with the vital task of ensuring feedback from
the consultation process reaches the wider population, and that the views of that group can be
channelled into the consultation process through the child advocate.158 Finally, as regards to ensuring
the diversity of child participants, this selection criteria bears particular significance in the case of
transitional justice, where the state may have been highly divided along ethnic, religious or cultural
lines, and divergent interests are likely to exist between groups. 159 If one group’s voice is
underrepresented during discussions surrounding accountability, this may lead to feelings of
marginalization and a possible perception of victor’s justice, which can decrease the legitimacy of the
accountability process in the eyes of the marginalized groups, minimize the possibility of

152
ibid
153
Jonathon Sargent and Deborah Harcourt, Doing Ethical Research with Children (Maidenhead, Open
University Press, 2012) 16
154
ibid at 17
155
OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: National Consultations on Transitional Justice’ (New
York and Geneva, United Nations, 2009) 7
156
Supra note 60 at 52
157
ibid
158
Supra note 146 at 49
159
-----, ‘Children and Truth Commissions’ (UNICEF and the International Center for Transitional Justice,
2010) 22; Supra note 133 at 23

 35

reconciliation, and increase the likelihood of social fractures and future conflict.160 Furthermore, by
ensuring the diversity of child participants in the consultation process, post-conflict states can
maximise the perspectives obtained during the process,161 thus increasing the relevance of the eventual
accountability mechanism for as many of the state’s inhabitants as is possible.162 Given the centrality
of relevancy to the success of accountability exercises, ensuring this element of the selection criteria is
followed is thus seemingly vital to achieving adequate accountability in the post-conflict state.

However, despite the suggestion that, through the utilisation of selection criteria, post-conflict
states can create a more inclusive consultation process where children from diverse backgrounds are
able to express views regarding the transitional justice process, certain factors regarding the selection
of children to participate in consultations remain problematic to the consultation enterprise as a
whole.163 One problem in this regard relates to the need for consultation organisers to pass through a
‘gatekeeping adult’ in order to include specific children in the consultation process.164 Gatekeeping
adults are defined as adults who have some control over access to the child, and who have some
responsibility for their wellbeing.165 These people may be, inter alia, parents, teachers or community
leaders responsible for a particular child or group of children.166

Whilst gatekeepers play an important role in protecting children from harm,167 they equally are able
to exert a significant amount of control over their wards, which in turn, it is contended, can have an
impact on the selection exercise, and, consequently, the consultation process as a whole. In this regard,
Dockett and Perry note that due to the control that gatekeepers hold over children, they are able to
heavily influence which children can take part in consultations, either by denying a child the right to

160
Supra note 133 at 23
161
Moira Borland, Malcolm Hill, Ann Laybourn and Anne Stafford, ‘Improving Consultation with Children and
Young People in Relevant Aspects of Policy-Making and Legislation in Scotland’ (Scottish Parliament Paper
365, Session 1, 2001) para 5.8
162
Dustin N. Sharp, ‘Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional
Justice’ (2013) 26 Harv Hum Rts J 149, 160-161
163
Sue Bucknall, ‘Doing Qualitative Research with Children and Young People’ in Alison Clark, Rosie Flewitt,
Martyn Hammersley and Martin Robb (eds) Understanding Research with Children and Young People (London,
Sage Publications, 2014) 79
164
Judith Masson, ‘The Legal Context’ in Sandy Fraser, Vicky Lewis, Sharon Ding, Mary Kellett and Chris
Robinson (eds) Doing Research with Children and Young People (London, Sage Publications, 2004) 46
165
Michelle O’Reilly and Nisha Dogra, Interviewing children and young people for research (Los Angeles, Sage
Publications, 2017) 83
166
Mary Ann Powell and Anne B. Smith, ‘Children’s Participation in Research’ (2009) 16:1 Childhood 124, 125
167
Malcolm Hill, ‘Ethical considerations in researching children’s experiences’ in Sheila Greene and Diane
Hogan (eds), Researching Children’s Experiences: Approaches and Methods (London, Sage Publications, 2005)
78

 36

participate in consultation exercises, or only allowing certain children to take part.168 Such decisions
can be made for a number of reasons, including what topics are to be discussed, their perception of the
child’s vulnerability or competence, and the gatekeepers own views of the efficacy of the child’s
participation.169 Furthermore, Alderson suggests that gatekeepers can also use their power to seek to
influence the child to offer particular views during the consultation, or can withhold consent for
participation in order to silence the child.170

In divisive post-conflict settings, the need to go through gatekeepers in order to recruit children into
the transitional justice consultation process may, therefore, cause difficulties for the representativeness
of that process and have the effect of diminishing the participation of certain groups of children, or
obfuscating their true opinions in favour of the gatekeepers own. This could occur, of example, in
situations where the gatekeeper and their ward are from a community, which, during the conflict, was
opposed to the regime or organisation that is now seeking to establish the consultation process.171 In
such cases the gatekeeper could deny the child the opportunity to participate in a process that is seen
as being imposed by the opposition, thus limiting the input of that child’s particular community in the
consultation exercise as a whole. The potential for these such decisions delimiting the pool of children
able to convey their opinions regarding the transitional justice process means that adult gatekeepers
hold a great degree of power over the selection of child participants for consultations, and thus can
influence the make up and representativeness of those consultations. The need to go through
gatekeepers therefore represents a significant problem for transitional justice actors during the
selection process.

Owing to this, whilst it is highly important for actors designing transitional justice consultation
processes to ensure they comply with the necessary criteria for undertaking the selection of children to
participate, care must be taken to avoid the possible negative influence that might be exerted by
gatekeepers. This may require actors to give gatekeepers assurances regarding the safeguarding of
vulnerable children during consultations,172 or ensure the transparency of the consultation process so

168
Sue Dockett and Bob Perry, ‘Researching with Young Children: Seeking Assent’ (2011) 4 Child Ind Res 231,
236-237
169
ibid 237; Sue Heath, Vikki Charles, Graham Crow and Rose Wiles ‘Informed consent, gatekeepers and go-
betweens: negotiating consent in child- and youth-orientated institutions’ (2007) 33:3 British Educational
Research Journal 403, 410
170
Pricilla Alderson, ‘Ethics’ in Sandy Fraser, Vicky Lewis, Sharon Ding, Mary Kellett and Chris Robinson,
Doing Research with Children and Young People (London, Sage Publications, 2004) 105
171
USAID, ‘Community Participation in Transitional Justice: A Role for Participatory Research’ (USAID
Report, 2014) 23
172
Judith Masson, ‘Researching children’s perspectives: legal issues’ in Ann Lewis and Geoff Lindsay (eds),
Researching Children’s Perspectives (Buckingham, Open University Press, 2000) 36

 37

as to allay any fears about how the child’s contribution may be used.173 By minimising the reasons for
gatekeepers to deny access to children, actors can hopefully maximise the number of children able to
participate in consultations, and resultantly can promote the efficacy of these enterprises by ensuring
that child consultations are as representative as is possible.

Having determined how transitional states should select children to take part in consultations, the
next important issue is how best to actually undertake consultations with the children selected.

The most appropriate methods of consulting with children will, in most circumstances, depend on
the outcome that is required to be obtained. Broadly, such methods can be divided into qualitative
modalities and quantitative approaches, with qualitative methods involving the collection of data that
represents a narrative regarding the issue in question, and quantitative methods utilised to determine
numerical patterns amongst responses.174 In consultation exercises regarding transitional justice, the
outcome sought is invariably to gather opinions and ideas regarding the design and operation of the
process, and to enable participants to raise concerns they may have regarding it.175 This being so, the
utilisation of qualitative methods is usually regarded as preferable.176

Whilst various qualitative methods and practices can be utilised during consultation processes with
children, the most commonly undertaken are interviews and focus groups.177 Interviews involve the
researcher speaking with the child directly in order to elicit information from them, which assists in
answering the research question. 178 Interviews can either be structured, 179 semi-structured, 180 and
unstructured,181 and may involve the researcher meeting with the child one-on-one, or with several

173
Michael Gallagher, Sarah L. Haywood, Manon W. Jones and Sue Milne, ‘Negotiating Informed Consent with
Children in School-Based Research: A Critical Review’ (2010) 24 Children and Society 471, 476
174
Jonathan Sargent and Deborah Hardcourt, Doing Ethical Research with Children (Maidenhead, Open
University Press, 2012) 46
175
OHCHR, ‘Rule-of-Law Tools for Post-Conflict States: National Consultations on Transitional Justice’ (New
York and Geneva, United Nations, 2009) 2
176
ibid at 7
177
P. Gill, K. Stewart, E. Treasure and B. Chadwick, ‘Methods of Data Collection in Qualitative Research:
Interviews and Focus Groups’ (2008) 204:6 British Dental Journal 291, 295
178
Anne Greig and Jayne Taylor, Doing Research with Children (London, Sage Publications, 1999) 131
179
In structured interviews all questions are pre-set and no deviation from them occurs.
180
Semi-structured interviews use pre-determined questions but leave open the possibility to ask further
questions or to seek clarification or further detail from the respondent’s answers.
181
In unstructured interviews, open-ended questions are used to generate a broader dialogue with no set
parameters.

 38

children as a group.182 Conversely, focus groups involve the researcher acting as a mediator and
directing the conversation of a group of children around a discussion on a particular topic.183

According to O’Reilly and Dogra, conducting interviews and focus groups with children can be a
highly effective means of generating ‘a great deal of rich and interesting information’ regarding their
opinions and perspectives on particular matters.184 The flexibility of interviews and focus groups
enables researchers to go into detail during consultations by initiating a directed dialogue based on a
predetermined question, and then asking further questions in order to clarify matters, probe for other
opinions, or develop those provided by the child.185 In doing so, Flewitt notes that these forms of
qualitative consultation ‘give access to individuals’ understanding of the contexts they are in, to their
opinions, aspirations, attitudes and feelings,’ and ‘generate complex insights into others’ perceptions
of social phenomena.’186 Equally, interviews have been said to be particularly useful where, as is the
case regarding transitional justice, the consultation must cover particularly sensitive topics that
children may find it difficult to speak about, or which they may need extra support to discuss. In such
cases utilising interviews enables the researcher to be more in-tune with how the child is feeling, and
therefore can take measures to prevent them becoming distressed or concerned about a particular
topic.187

Although interviews and focus groups were utilised in the one example of a child-inclusive
transitional justice consultation process, held in Nepal, little information exists regarding the means
and methods utilised in this exercise, or the outcomes generated.188 However, although not involving
children, examples of interview and focus group-based consultations being used to generate a dialogue
regarding post-conflict accountability issues are evident in other transitional programmes. For
example, Corkalo et al. led interviews and focus groups in three Bosnian and Croatian cities following
the conclusion of the conflict in the region.189 The groups were established to discuss various issues

182
See, Ann Lewis, ‘Group Child Interviews as a Research Tool’ (1992) 18:4 British Educational Research
Journal 413
183
Supra note 174 at page 51
184
Supra note 165 at 10
185
ibid
186
Rosie Flewitt, ‘Interviews’ in supra note 163 at 138
187
ibid
188
See, International Commission of Jurists, ‘Nepal: After a Decade Still Time to Provide Justice’ (2016) online
at: <https://www.icj.org/wp-content/uploads/2016/11/Nepal-Statement-CPA-Anniversary-Advocacy-2016-
ENG.pdf> [accessed on 8th Sept 2017]
189
Dinka Corkalo, Miklos Biro, Dean Ajdukovic, Dino Djipa, Petar Milin and Harvey M. Weinstein, ‘Attitudes
towards justice and social reconstruction in Bosnia and Herzegovina and Croatia’ in Eric Stover, Harvey M.
Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity
(Cambridge, Cambridge University Press, 2004) cited in Hugo Van der Merwe, ‘Delivering Justice during

 39

including seeking justice for crimes committed during the conflict, and the effect that obtaining
accountability might have on affected communities.190 The discussions held in these sessions ‘found
general agreement that war crimes had been committed and that these needed to be prosecuted’
although opinions varied greatly as to who prosecutions should seek to hold accountable.191 Similarly,
focus groups and interviews regarding the Rwandan transitional justice process identified deep-seated
concerns amongst victims regarding the level of accountability that was being obtained by the gacacca
courts, especially where those who had admitted their wrongdoing were released early.192

As such, it is evident that interview- and focus group-based consultation processes have the
potential to elicit pertinent information and opinions regarding post-conflict accountability. Whilst
documented evidence of these methods being used with children in the context of transitional justice
does not exist, their well established use in other contexts positions them as a potentially useful means
of conducting consultations with children in order to develop a narrative regarding their opinions on
accountability. By meeting children directly, discussing relevant topics with them, and allowing them
to generate their own opinions and ideas, transitional justice actors can obtain vital opinions that can
then be used to help craft and refine transitional justice accountability processes.

However, despite seeming to offer a potentially fruitful means of seeking the views of children
regarding transitional justice accountability processes, the usefulness of interview and focus groups for
engaging in consultations with children has equally been questioned. To this end, Bucknall notes that
where these measures involve groups of children, such may be potentially ineffective in maximising
the narrative gained.193 This is so, she argues, because group dynamics ‘can silence the voices of
children who choose to keep their own views to themselves in order not to contradict the majority of
the views of their peers.’194 Indeed, the potential for interviews to silence the contributions of some
children has been argued to not be limited to those involving groups, with several scholars
highlighting the potentially intimidating nature of one-on-one interviews as being a limiting factor of

Transition: Research Challenges’ in Hugo Van der Merwe, Victoria Baxter, Audrey R. Chapman (eds),
Assessing the Impact of Transitional Justice: Challenges for Empirical Research (Washington D.C., United
States Institute of Peace Press, 2009) 131
190
ibid
191
Hugo Van der Merwe, ‘Delivering Justice during Transition: Research Challenges’ in Hugo Van der Merwe,
Victoria Baxter, Audrey R. Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for
Empirical Research (Washington D.C., United States Institute of Peace Press, 2009) 131
192
ibid
193
Supra note 163 at 76
194
ibid

 40

their efficacy. 195 Equally, for children who have difficulties engaging in verbal communication,
traditional interview and focus group techniques of consultation may be entirely inappropriate.196

The difficulties faced by interview and focus group techniques at maximising the participation of
children in research and consultations have led some to seek alternative modalities in order to
encourage children to communicate their thoughts and ideas.

One such alternative consultation method involves utilising art-based activities to help children
develop narratives regarding their experiences. Artistic consultation activities involve researchers
providing materials or activities that enable children to show, act out, or otherwise visually describe,
their experiences and needs. Researchers can then use these performances or artwork to engage in a
more detailed dialogue with the child.197 A central facet of the putative effectiveness of artistic
activities at enabling children to convey their opinions is based on the familiarity of artistic activities
for most children. Due to the fact that children are often very experienced at utilising art to describe
their emotions and interpret the world around them, Coad et al. note that art-based research methods
are a potential means of enabling a broader spectrum of opinions to be discovered during the
consultation process, as ‘they are a powerful way for children across a wide range of developmental
continuums to express their views.’198 Equally, Hill et al. argue that where children struggle to
properly express themselves through speech and conversation, art may better enable them to convey
their emotions, which researchers can then help them develop verbally.199

Art-driven consultation methods may be especially useful where topics being discussed are
complex, sensitive, emotive, or involve the disclosure of pertinent information about criminal acts
committed, as may the case in transitional justice consultation programmes. This is so, because, as is
noted by Bragg, artistic activities, especially those which involve drama or role play, enable children
‘to project their own feelings, beliefs and attitudes’ onto a fictitious character, which can enable them
to disclose information that they might otherwise not be willing, or feel able, to.200

Whilst no examples of art-based transitional justice consultations are apparent, art has commonly
been used at various stages of the transitional justice process in order to enable populations to express
their feelings about the conflict, and to assist in memory creation regarding crimes committed therein.

195
Supra note 186 at 142; Supra note 165 at 12
196
Supra note 165 at 12
197
Malcolm Hill, Ann Laybourn and Moira Borland, ‘Engaging with Primary-aged Children about their
Emotions and Well-being: Methodological Considerations’ (1996) 10 Children and Society 129, 133
198
Jane Coad, Gill Plumridge and Alison Metcalfe, ‘Involving children and young people in the development of
art-based research’ (2009) 16:4 Nurse Researcher 56, 58
199
Supra note 197
200
Sara Bragg, ‘Consulting young people: a literature review’ (November 2010, Creativity, Culture and
Education) 51

 41

An interesting example of the ability of artistic techniques to convey information regarding conflict
was documented in relation to Sierra Leone’s transitional justice process. Here, Stepakoff describes
how witnesses due to appear before the Special Court for Sierra Leone obtained permission to perform
a play for court staff regarding their experiences during the conflict. The play told the story of the
crimes that had been inflicted against them during in the war, which included rape and violent
attacks.201 In explaining why they had wanted to do this, the leader of the group noted that through
drama ‘you would be able to see exactly what happened with us during the war … by acting you
would see exactly what we mean.’202

However, as with interview and focus group based methods, problems exist with art-based
modalities of child consultation that may hamper their effectiveness. For instance, researchers must be
careful when seeking to engage children in discussions regarding the meaning behind their art in order
to ensure that they do not project their own interpretations, which may then influence the child’s
explanation. Equally, as is noted by Coad, the informality of these exercises may lead to a lack of
focus amongst participants and the creation of artwork with little to do with the information sought,
which can have the effect of derailing the consultation and preventing it from achieving its purpose.203

In reality, no single method of consulting with children can be designated as preferable to another.
The means chosen will, by necessity, depend on numerous factors including the abilities of the
participant children, the resources available to the consultants, and the timeframes in which the results
of the consultations are required. Indeed, where resources on the ground in the transitional state are
adequate, actors may be able to utilise multiple methods in order to achieve the best possible data
about the perception of children regarding post-conflict accountability. In order to ensure that
consultation processes are fair and representative, however, transitional states must ensure that
children selected to take part are from a diverse range of backgrounds, which reflect both the
population of the state, and the various sides to the conflict. By doing so states can be said to have
obtained representative information regarding the thoughts, feelings and ideas of children about post-
conflict accountability, and therefore will be best placed to implement accountability policies which
reflect those views.

201
Shanee Stepakoff, ‘Telling and Showing: Witnesses Represent Sierra Leone's War Atrocities in Court and
Onstage’ (2008) 52:1 TDR 17, 22
202
ibid
203
Jane Coad, ‘Using art-based techniques in engaging children and young people in health care consultations
and/or research’ (2007) 12:5 Journal of Research in Nursing 287, 291

 42

3.4 Conclusion

This section has highlighted that, for both pragmatic and legal reasons, children should and must be
regarded as an essential resource in consultations surrounding accountability in transitional justice.
Children are highly important stakeholders in transitional states and are endowed with rights that
promote their participation in matters affecting them. To this end, transitional states can no longer fail
to include children within their consultation processes and ignore their perspectives regarding post-
conflict accountability. Indeed, as has been shown, including children in consultations could have a
highly positive effect on the overall outcome of the consultation process, and the transitional justice
enterprise as a whole, by ensuring that the eventual process is relevant, representative, and responsive
to the needs of all communities. Whilst the methods for involving children in consultations vary
widely and are almost entirely untested in a transitional justice environment, established techniques
for assisting them to provide their opinions and perspectives exist and have been shown to have been
utilised effectively in other areas. This being so, states transitioning from conflict to peace must now
seek to implement children-focused consultation methods to ensure that child stakeholders opinions
are both heard and considered in the design and implementation of their accountability processes.

 43

SECTION FOUR

CHILDREN AS WITNESSES WITHIN TRANSITIONAL JUSTICE

As was noted in section one, at the core of the notion of accountability is the idea that those who
have committed aberrations should have their criminality exposed, and should be made to answer for
their actions. In the context of transitional justice, this exposure is, most commonly, undertaken in two
formats: the criminal prosecution and the truth and reconciliation commission (TRC).204 Although
other accountability modalities are available, and are discussed in section five, it is these two that have
come to form the central focus when seeking accountability following conflict. Whilst both
prosecutions and TRCs differ in the aims that they seek to achieve, and their approach to
accountability, a common feature of both is the requirement that witnesses come and present their
testimony as to what actually took place. To this end, this section seeks to determine whether, and if so
how, children can contribute to these accountability models as witnesses.

4.1 The Efficacy of Child Witness Participation in Transitional Justice

Whilst children are major stakeholders in transitional justice, their involvement within post-conflict
accountability mechanisms is far from well versed, and as such, the efficacy of their contribution as
witnesses is largely untested. Despite this, the advent of the CRC, which at Article 12(2) explicitly
provides a right for children to be heard in ‘judicial and administrative proceedings affecting
[them]’,205 and the global movement towards a greater recognition of children’s rights, has served to
promote the inclusion of children as information providers and witnesses within accountability
mechanisms.206

Aside from the legal principle which seeks to ensure that children may take part in accountability
procedures, arguments in favour of children’s participation as witnesses within transitional justice
hinge on the fact that, without them, sometimes holding perpetrators accountable will be difficult or
even impossible.207 The devastating effect that conflicts have on the lives of children means that they
are frequently holders of important information regarding acts of criminality committed during the

204
Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International
Criminal Court’ (2003) 14 EJIL 481, 483-484
205
Supra note 61 at Art 12(2)
206
See, ‘Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of
Children’s Rights in Truth, Justice and Reconciliation Processes’ in Sharanjeet Parmar, Mindy Jane Roseman,
Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010)
207
Helen Beckmann-Hamzei, The Child in ICC Proceedings (Cambridge, Intersentia, 2015) 31

 44

war.208 Properly enabling children to impart this information is, therefore, crucial in order to ensure
individual accountability is obtained. This is noted by Beresford who states that ‘children will often
possess the best and sometimes only evidence about a particular crime and their cooperation is
required for a successful prosecution’.209 This is particularly the case in relation to former child
soldiers. As is seen in section five, child soldiers are generally regarded as victims and witnesses,
rather than perpetrators themselves. As such, due to their position as the direct victims of human rights
abuses and parties to the operational mechanics of the perpetrators, ‘former child combatants are
uniquely situated to describe the details of their conscription and participation in combat.’ 210
Furthermore, where the participant child is, themselves, the victim of the perpetrators actions, it is
argued that the ability to provide direct testimony regarding their experience can itself facilitate
accountability by engendering a sense of justice for the child that the truth is known and that they have
been listened to.211

As noted, the two key means by which children are able to participate as witnesses within
transitional justice processes are through prosecutorial modalities, most notably criminal trials, and
through non-prosecutorial mechanisms, such as truth commissions. Whilst children’s participation as
witnesses in prosecutorial transitional justice accountability mechanisms has been limited, some
examples of their contributions have been evident in recent years. For instance, two children were
called to act as witnesses before the ICTY, with one, aged 16, testifying in the Galić case about how
she suffered wounds from a sniper,212 and the other, a 15 year old, giving evidence in the trial of
Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj.213 Equally, children appeared as witnesses in the
first case held at the ICC,214 wherein Thomas Lubanga Dyilo was indicted for three counts of war
crimes, all of which involved the conscription of children to fight in the conflict in the Democratic

208
ibid 31
209
Stuart Beresford, ‘Child Witnesses and the International Criminal Justice System: Does the International
Criminal Court Protect the Most Vulnerable’ (2005) 3 J Int’l Crim Just 721, 722
210
Kyra Sanin and Anna Stirenman, ‘Child Witnesses at the Special Court for Sierra Leone’ (March 2006, War
Crimes Study Center) 7
211
Gail S. Goodman, Jodi A. Quas, Josephine Bulkley and Cheryl Shapiro, ‘Innovations for Child Witnesses: A
National Survey’ (1999) 5:2 Psychology, Public Policy and Law 255, 258
212
The Prosecutor of the Tribunal against Stanislav Galić and Dragomir Milosevic (19th February 2002) ICTY,
IT-98-29-I, 3982-4087
213
The Prosecutor of the Tribunal against Ramush Haradinaj, Idriz Balaj & Lahi Brahimaj (11th September
2007) ICTY, IT-04-84, 8253-8314
214
Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘Children and
Justice During and in the Aftermath of Armed Conflict’ (United Nations Working Paper No 3, September 2011)
15

 45

Republic of the Congo (DRC).215 According to Beckmann-Hamzei, child witnesses were crucial to
obtaining accountability in this case as ‘in order to achieve a conviction for the recruitment of children
below the age of 15, an essential part of the prosecutorial strategy was to call victim witnesses who
could testify on their personal experiences…’216 The most prevalent use of child witnesses in a
prosecutorial setting, however, was seen before the Special Court for Sierra Leone (SCSL). The nature
of the conflict in Sierra Leone, and the common use of child soldiers therein, meant that child victims
were extremely high. As a result, children were called to testify against perpetrators in greater
numbers than had previously been seen.217 Whilst information as to the exact number of children who
testified before the SCSL is unclear, in 2009 it was noted that of the more than 500 witnesses who had
given evidence at the Court, 20 were children.218

Equally, where states opt for non-prosecutorial modalities, such as TRCs, during their transitional
accountability processes, children have been called to testify and thus provide their perspectives and
knowledge regarding the conflict and the crimes committed therein. As the role of a TRC is to
generate a narrative regarding the conflict, by testifying before a TRC children can help to document
egregious acts committed in the conflict, and can name the perpetrators of these acts, thus ensuring
that they are held accountable for their criminality.219 Children have been involved in a number of
TRCs established to documents conflicts and conflict-related crimes. For instance, during the Liberian
transitional justice process, a TRC was set up pursuant to the Act to Establish the Truth and
Reconciliation Commission, wherein it was stated that the TRC should pay special attention to the
experiences of children and ‘[provide] opportunities for them to relate their experiences.’220 Ten
children from each of the country’s fifteen counties were selected to testify, with these witnesses being
chosen from those who had provided statements to the TRCs interviewing teams.221 The testimony
provided by these children during hearings was then used to help create the final report of the TRC.222
In doing so, Sowa notes that the Liberian TRC ‘gave a voice to children’s wartime experiences.’223 In
addition to the Liberian transitional justice process, children have equally been afforded the

215
ICC, ‘Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo’ (November 2017) online at: <
https://www.icc-cpi.int/drc/lubanga/Documents/LubangaEng.pdf> [accessed on 12th October 2017]
216
Supra note 207 at 34-35
217
ibid at page 34
218
ibid
219
Supra note 159 at 7
220
Liberia: An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia 2005 [Liberia],
s.4(e)
221
Theo Sowa, ‘Children and the Liberian Truth and Reconciliation Commission’ in Sharanjeet Parmar, Mindy
Jane Roseman, Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 216
222
ibid
223
ibid

 46

opportunity, to at least some extent, to testify before the TRCs created to document the conflicts in
Sierra Leone, South Africa, and Timor-Leste.224

As a result of their common status as victims and observers of wartime atrocities, children
witnesses are, therefore, seemingly well placed to provide testimony during transitional justice
accountability processes, and are arguably often essential to the achievement of accountability. Being,
as they often are, at the forefront of the fighting, children’s knowledge of the conflict is essential to
building up an accurate picture of what took place, and the crimes that were committed. Furthermore,
particularly where children were themselves at the heart of criminal enterprises as illegally conscripted
child soldiers, the information they are able to provide about their commanders, and the acts they were
forced to commit, may be imperative to securing accountability in the aftermath of the conflict. As
such, it would seem that securing the effective participation of child witnesses is essential in order to
achieve adequate accountability during transitional justice.

4.2 Concerns Regarding the Participation of Child Witnesses in Transitional Justice

Despite the growing recognition that enabling children’s participation as witnesses within
transitional justice can be highly advantageous to the overall outcome of securing the accountability of
human rights perpetrators, certain facets of child witness participation have been argued to potentially
limit its efficacy, and therefore must be questioned.

One important observation, which, if true, would severely limit the role that children can play as
witnesses in transitional justice accountability mechanisms, is the potential for the experience of
testifying to cause the child severe psychological harm and lead to re-traumatization.225 The negative
psychological effect that appearing as witnesses can have on children is well acknowledged in the
academic literature regarding children’s participation. Holder, for example, notes that where children
are required to relate their testimony before a judicial body, feelings of guilt regarding what they may
have seen or experienced can ‘re-traumatize children when questioning them in a courtroom.’226 This
possibility is arguably even more prolific in the post-conflict context. In this regard, Sanin and
Stirnemann note that children who have grown up during conflicts often experience far slower
emotional development that other children, owing to the lawlessness and lack of support networks
available to them during the conflict.227 These developmental difficulties may ‘render these witnesses
more vulnerable to re-traumatization and inhibit their ability to deal with frustrating and stressful

224
Supra note 159 at 40
225
Casey Holder, ‘All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on
a Defendants Right to a Fair Trial’ (2013) 50 Hous L Rev 1155, 1159
226
ibid
227
Supra note 210 at 9

 47

situations, such as cross-examination.’228 Resultantly, Michaels notes that these feelings of trauma and
stress ‘can affect a child victim’s capacity to participate in a transitional justice process… [and] … can
also make it difficult for a child witness to tell his or her story accurately, answer questions, face the
stress of a court session or hearing, and pick up normal life after testimony.’229 Indeed, the traumatic
effect that testifying within transitional justice accountability mechanisms can have on children is
highlighted by examples from both criminal and non-prosecutorial mechanisms.

In relation to prosecutorial mechanisms, child witness trauma was evident in the Thomas Lubanga
Dyilo case, noted above. In this case, the first witness to be called to testify was a former child soldier
who had been under the command of the defendant.230 After taking the stand, the child witness
testified in open court in full view of Lubanga Dyilo, and therein was questioned about his experiences
during the conflict.231 However, after returning from an adjournment, the child witness recanted his
testimony and refused to return to the witness box.232 With regards this case, it has been noted that the
child’s fear of the defendant and the stress of telling their story in his presence were the central
reasons for his recantation,233 as ‘these conditions are almost certainly traumatic for a child as they are
forced to testify in front of a man who determined every aspect of their life.’234

Equally, children have been documented as suffering from severe stress and trauma induced by
testifying before TRCs. For example, one child was asked to provide testimony before the TRC in
Timor-Leste.235 The child, who was fourteen at the time, gave evidence regarding the murder of her
father during an attack on a churchyard, however after reaching the halfway point in her evidence she
was unable to continue due to severe feelings of stress and grief.236 Whilst, many years later, the child

228
ibid
229
An Michaels, ‘Psychosocial Support for Children: Protecting the Rights of Child Victims and Witnesses in
Transitional Justice Processes’ (June 2010) UNICEF Innocenti Working Paper: IWP 2010-14, 4
230
Crystal E. Lara, ‘Child Soldier Testimony Used in Prosecuting War Crimes in the International Criminal
Court: Preventing Further Victimization’ (2011) 17 SW J Int’l L 309, 312
231
ibid
232
Dermot Groome, ‘No Witness, No Case: An Assessment of the Conduct and Quality of ICC Investigations’
(2014) 3:1 Penn St J L & Int’l Aff 1, 21
233
Alison Smith, ‘The Role of Children in Transitional Justice Mechanisms and Processes’ in Catherine Rutgers
(ed), Creating a World Fit for Children: Understanding the UN Convention on the Rights of the Child (New
York, Idebate Press, 2011) 103
234
Supra note 230
235
Supra note 159 at 40
236
ibid

 48

told researchers that she viewed it as a positive experience, her mother stated that afterwards her
daughter was ‘re-traumatized and depressed.’237

As such, it is clear that whilst obtaining the facts of children’s experiences and knowledge of the
conflict is highly important to the overall level of accountability obtained within transitional justice,
children’s role as witnesses is also potentially fraught. Whilst children are often recognised as
essential actors within transitional justice accountability processes, their psychosocial positioning can
make acting as witnesses a risky enterprise for them, causing feelings of severe stress and trauma
when having to recall their experiences. As is seen in the above examples, this phenomenon is not
limited to adversarial criminal prosecutions, which are traditionally regarded as a more
psychologically challenging environment for children,238 but is equally possible where children testify
before non-prosecutorial accountability modalities, such as TRCs. Where there is potential for child
witnesses to be re-traumatized by their experience testifying within transitional justice, their
contribution to the delivery of accountability in this way must be questioned. Firstly, as was the case
with the child testimony heard before the Timor-Leste TRC, where testifying leads to such significant
stress and trauma that the child witness is unable to continue, this necessarily limits the level of
accountability obtained by the process, by excluding the child’s narrative from the record. This is
potentially even more impactful in criminal cases where the case may have to be withdrawn if the
traumatised witness is crucial to obtaining a conviction.239

Even where children are able to complete their testimony, their reliability as witnesses has been
contested. If children are unable to be relied on as witnesses then clearly their ability to contribute to
accountability processes in transitional justice will be severely, if not entirely, limited. One contention
regarding the reliability of child witnesses relates to the preceding arguments about the traumatic
nature of accountability proceedings for them. To this end, studies by Ceci and Bruck,240 and Herlihy
et al.,241 have demonstrated that when child witnesses are placed in stressful situations, such as giving
sworn evidence inside a courtroom, they have greater difficulty remembering facts and thus are ‘more
likely to give discrepant account.’242 This can equally lead to child witnesses simply agreeing with

237
Megan Hirst and Ann Linnarsson, ‘Children and the Commission for Reception, Truth and Reconciliation in
Timor-Leste’ (June, 2010) UNICEF Innocenti Working Paper, IWP 2010-7, 20
238
See, for example, John R. Christiansen, ‘The Testimony of Child Witnesses: Fact, Fantasy, and the Influence
of Pre-trial Interviews’ (1987) 62 Wash L Rev 705, 719
239
Supra note 225 at 1159-1160
240
See, Stephen J. Ceci and Maggie Bruck, ‘Suggestibility of the Child Witness: A Historical Review and
Synthesis’ (1993) 113:3 Psychological Bulletin 403
241
Jane Herlihy, Peter Scragg, Stuart Turner, ‘Discrepancies in autobiographical memories— implications for
the assessment of asylum seekers: repeated interviews study’ (2002) 324 BMJ 324
242
Guinevere Tufnell, ‘Refugee Children, Trauma and the Law’ (2003) 8:4 Clinical Child Psychology and
Psychiatry 431, 439

 49

statements put to them, or constructing an alternative narrative of the event in question.243 Such is
noted by Pezdek and Blandon-Gitlin, who argue that ‘stress … experienced during retrieval of events
can increase children’s suggestibility … [and] impairs children’s ability to recall details of events.’244
As a result, the stressful experience of giving evidence within transitional justice not only has the
potential to cause the child psychological harm, but equally may derail the entire purpose for which
they are acting as witnesses by causing them severe difficulties recalling the events they are to testify
about. As such, the ability of child witnesses to provide the evidence necessary in order to secure the
accountability of a perpetrator may be greatly limited.

4.3 Facilitating Child Witness Testimony: The Use of Special Measures

Despite the trauma of testifying potentially having a negative effect on the ability of children to
contribute to the achievement of accountability in transitional justice, recognition of this possibility,
and the understanding that accountability models must be constructed in accordance with the ‘best
interests of the child’ principle,245 have led to concerted efforts to ameliorate these deleterious effects.
To this end, accountability mechanisms have sought to introduce special measures and processes
designed to protect child witnesses, and thus improve their testimony.246 Such measures can include,
for example, the use of screens to block a child witness from being seen by the defendant and the
general public,247 the use of closed sessions only open to those whose attendance is required by
necessity,248 and the use of intermediaries to assist the child to understand the accountability process

243
Karen L. Thierry, Melanie J. Spence & Amina Memon, ‘Before Misinformation is Encountered: Source
Monitoring Decreases Child Witness Suggestibility’ (2001) 2:1 Journal of Cognition and Development 1, 2
244
Iris Blandón-Gitlin and Kathy Pezdek, ‘Children’s Memory in Forensic Contexts: Suggestibility, False
Memory, and Individual Differences’ in Bette L. Bottoms, Cynthia J. Najdowski and Gail G. Goodman,
Children as Victims, Witnesses and Offenders (New York, The Guildford Press, 2009) 74
245
‘Key Principles for Children and Transitional Justice: Involvement of Children and Consideration of
Children’s Rights in Truth, Justice and Reconciliation Processes’ in Sharanjeet Parmar, Mindy Jane Roseman,
Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 406
246
Supra note 209 at 741; Saudamini Siegrist, ‘Child Participation in Individual Criminal Accountability
Mechanisms: The Case of the Sierra Leone Truth and Reconciliation Commission’ in Karin Arts and Vesselin
Popovski, International Criminal Accountability and the Rights of Children (The Hague, Hague Academic
Press, 2006) 54
247
Jonathan Doak, ‘The Therapeutic Dimension of Transitional Justice: Emotional Repair and Victim
Satisfaction in International Trials and Truth Commissions’ (2011) 11 Int’l Crim L Rev 263, 291
248
Sam Garkawe, ‘Victims and the International Criminal Court: Three Major Issues’ (2003) 3 Int’l Crim L Rev
345, 353

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and the questions that they are asked.249 Special measures such as these have become a common
feature of domestic criminal proceedings in which children are involved,250 and have been argued to
significantly improve the ability of child witnesses to participate therein.251 If these measures can
equally facilitate children’s testimony and mitigate the potential trauma of the experience of giving
evidence in transitional justice, then with them in place, child witnesses may be able to positively
contribute to the achievement of accountability.

One potential means by which both courts and non-prosecutorial mechanisms, such as TRCs, can
adapt their practices in order to better protect child witnesses from distress during their testimony is by
enabling children to provide their evidence through a video-link. Video-link evidence is a special
measure that involves the child giving evidence from a separate room, away from the main hearing
room itself, but usually within the same building.252 The room in which the child sits contains a
camera that is connected to the hearing room so as to enable those present to view the child in real
time.253 The child witness is also able to view and hear the judge, or commissioners, and lawyers
present in the hearing room.254 The child is then able to give their testimony without having to be
present with, or even see, their assailant, and away from the stressful court or hearing room
environment.255 The use of video-link is facilitated within most international tribunals and TRCs,256
and has become a widely accepted means used to assist children to give evidence.257 Indeed, video-
link has been used at the ICTY,258 the SCSL,259 and the ICC.260

249
Mark Findlay and Sylvia Ngane, ‘Sham of the Moral Court?’ (February 2011) University of Sydney Legal
Studies Research Paper No.11/10, 8
250
See, for example, Matthew Hall, ‘Children Giving Evidence through Special Measures in the Criminal
Courts: Progress and Problems’ (2009) 21 Child & Fam L Q 65, 66-67
251
Brian Williams, Victims of Crime and Community Justice (London, Jessica Kingsley Publishers, 2005) 21
252
Supra note 250 at 79
253
John E. B. Myers, ‘A Decade of International Reform to Accommodate Child Witnesses’ (1996) 23:2
Criminal Justice and Behaviour 402, 416
254
Richard Applegate, ‘Taking Child Witnesses out of the Crown Court: A Live-Link Initiative’ (2006) 13
International Review of Victimology 179, 186
255
Judy Cashmore, ‘The Use of Video Technology for Child Witnesses’ (1990) 16 Monash U L Rev 228, 231
256
Håkan Friman, ‘Inspiration from the International Criminal Tribunals When Developing Law on Evidence for
the International Criminal Court’ (2003) 3 Law & Prac Int'l Cts & Tribunals 373, 388
257
Andrew Trotter, ‘Witness Intimidation in International Trials: Balancing the Need for Protection against the
Rights of the Accused’ (2012) 44 Geo Wash Int’l L Rev 521, 533
258
Philipp Kastner, ‘Transitional Justice + Cyberjustice = Justice2’ (2017) 30 Leiden J Int’l L 753, 757-758
259
Rebecca Horn, Simon Charters and Saleem Vahidy, ‘Testifying in an International War Crimes Tribunal: The
Experience of Witnesses in the Special Court for Sierra Leone’ (2009) 3 ICTJ 135, 138

 51

According to Cashmore, accountability processes benefit from enabling children to give evidence
via video-link as the measure helps negate those factors that were shown to potentially cause
difficulties for children engaging as witnesses.261 Where children’s evidence is facilitated through
video-link, the child is better protected from the psychological harm that may otherwise be caused
should they have to give live evidence inside the hearing room, and, as a result, the overall value of
the testimony which the child provides may be improved.262 In this regard she notes that, where video-
link evidence is allowed child witnesses are more relaxed when testifying, which enables them ‘to be
better able to process information and to answer accurately and completely than [a witness] who is
frightened and intimidated.’263

It must be borne in mind, however, that video-link technology, and indeed any other special
measures, can have a deleterious effect on accountability if used incorrectly. For instance, defence
lawyers have commonly raised the question as to whether the fact that the child is unable to testify in
the courtroom and is giving evidence on camera from another room might lead juries to draw adverse
inferences about the defendant, and thus interfere with their right to due process.264 Owing to this, care
must be taken to ensure proper directions and explanations are given to juries and other court users
regarding the use of special measures, so as to ensure that such is acknowledged as a procedural
measure, rather than one necessitated by the defendant themselves. Furthermore, as is noted by Hall, it
is important that children have some say in how they give their evidence, including whether they
utilise special measures such as video-link at all. This is so because some young victims may feel that
only by appearing in the witness box and experiencing the reality of the process of accountability, has
accountability been fully achieved. Indeed, it has been noted that child witnesses appearing before the
SCSL felt compelled to testify via video-link, and many said that this restricted the sense of justice
they obtained from the process.265

However whilst it is necessary to exercise the use of special measures carefully, it is clear that they
can have a highly positive effect on the ability of children to contribute to accountability processes in
transitional justice. As seen, the knowledge of children regarding the conflict and acts of criminality
committed therein is essential to the achievement of accountability. Children’s particular placement

260
Claus Kress, ‘The procedural law of the ICC in outline: Anatomy of a unique compromise’ (2003) 1 JICJ
603, 609
261
Supra note 255
262
ibid at 232
263
ibid
264
Yvette Tinsley and Elisabeth McDonald, ‘Use of Alternative Ways of Giving Evidence by Vulnerable
Witnesses: Current Proposals, Issues and Challenges’ (2011) 42 Victoria U Wellington L Rev 705, 735
265
Shanee Stepakoff, Nicola Henry, Neneh Binta Barrie, and Adikalie S. Kamara, ‘A Trauma-Informed
Approach to the Protection and Support of Witnesses in International Tribunals: Ten Guiding Principles’ (2017)
9 J Hum Rts P 268, 277

 52

within the conflict arena, and the fact that they are often directly impacted by war means that they are,
holders of unique information which would otherwise be lost, should they not be involved in
transitional justice accountability processes. Whilst it has been shown that child witnesses may
experience severe feelings of trauma and stress when testifying, which can have a direct impact on the
reliability of their evidence and on the achievement of accountability as a whole, by utilising special
measures transitional justice mechanisms may be able to ensure the best evidence possible is obtained
from children. By negating the negative effects that might otherwise be experienced should the child
have to give their testimony in open court, children may feel more confident and comfortable
delivering their evidence, and resultantly will be more able to convey the information required in order
to hold perpetrators accountable.

As a result, the conclusion must be drawn that, when facilitated with the use of carefully
implemented special measures, the participation of child witnesses should be regarded as a highly
important element in the achievement of accountability through transitional justice.

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SECTION FIVE

CHILDREN AS PERPETRATORS WITHIN TRANSITIONAL JUSTICE

It has been established that children are important stakeholders within post-conflict states, and
therefore their participation, both as witnesses and consultants, in the transitional justice process is
vital. However, the nature of modern conflicts, which have included the prevalent use of children as
combatants, means that youths are not always simply the observers or victims of atrocities. Indeed,
children have, themselves, been well-documented as having committed such acts. Whilst there has
been considerable debate as to whether children who commit crimes during conflict can or should be
held accountable, it is now broadly recognised that, at least where children have acted voluntarily in
their criminality, accountability is an option.266 To this end, the final section of this paper explores
how transitional justice processes can be constructed so as to hold child perpetrators to account. It
begins by briefly discussing the two main paradigms of accountability, before turning to consider the
most appropriate form that transitional justice measures designed to hold child perpetrators
accountable should take.

5.1 How Can Child Perpetrators be held Accountable in Transitional Justice?

The modalities available for achieving accountability in transitional justice are wide-ranging and
diverse, however, broadly, the available mechanisms can be regarded as conforming to either a
retributive or a restorative paradigm of justice. Retributive justice, as noted in section one, is generally
understood as the prosecution and punishment of those who commit unlawful acts and involves
determinations of guilt, and the imposition of sanctions commensurate to the nature of the violation
undertake. 267 Conversely, within restorative justice frameworks, the emphasis is not upon the
imposition of punishment for the acts committed,268 but focuses on the individuals involved, the harm

266
See, for example, Alison Smith, Supra note 233 at 103 stating that, in such cases ‘it is difficult to state as an
absolute certainty that children who commit crimes under international law should never be held accountable for
their actions.’
267
Hugo van der Merwe, ‘Delivering Justice During Transition: Research Challenges’ in Hugo van der Merwe,
Victoria Baxter and Audrey R. Chapman (eds) Assessing the Impact of Transitional Justice: Challenges for
Empirical Research (United States Institute of Peace Press, 2009) 119
268
John Braithwaite and Heather Strang, ‘Introduction: Restorative Justice and Civil Society’ in Heather Strang
and John Braithwaite (eds) Restorative Justice and Civil Society (Cambridge University Press, 2001) 1

 54

done,269 and how that harm can be rectified through dialogue and reparations.270 As noted by Zehr,
restorative justice views crime as ‘a violation of people and relationships. It creates obligations to
make things right. Justice involves the victim, the offender, and the community in a search for
solutions which promote repair, reconciliation, and reassurance.’271
As it was highlighted in section one, whilst retributive prosecutions have come to form the
dominant modality of accountability where human rights violations are concerned, as will be seen, the
limitations of prosecutions, especially when dealing with children, necessitate a broader understanding
of the ways in which accountability can be achieved. In order to determine the best means of
achieving the accountability of child perpetrators in transitional justice, both forms of justice must,
therefore, be considered.

5.1.1 Child Perpetrators and Retributive Justice

Where egregious crimes have been committed during conflict, the most common call, both from
the international and domestic community is to seek the accountability of the perpetrators through
retributive prosecutions.272 Prosecutions during transitional justice can operate either domestically,
whereupon the state itself assumes responsibility for the prosecutorial process, utilising its own
judicial structures and national laws,273 or through an international tribunal such as the ICC or an ad
hoc court established to prosecute offenders for international crimes committed in the course of a
particular situation.274 Where a state elects to prosecute child perpetrators in the aftermath of conflict,
it is imperative that these prosecutions adhere to international standards of due process.275 To this end,
the CRC outlines a number of requirements that states must abide by in order to hold a child
criminally accountable for their wrongdoing.276 These include, inter alia, the requirement to presume
the child’s innocence,277 a duty to inform the child of the charges against them and enable access to

269
Allison Morris and Gabrielle Maxwell, ‘Restorative Conferencing’ in Gordon Bazemore and Mara Schiff
(eds) Restorative Community Justice: Repairing Harm and Transforming Communities (Anderson Publishing
Co, 2001) 175
270
Margaret Urban Walker, ‘Restorative Justice and Reparations’ (2006) 37:3 J Soc Philos 377, 384
271
Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (Third Edition, Herald Press, 2005) 181
272
Katheryn Sikkink and Hun Joon Kim, ‘The Justice Cascade: The Origins and Effectiveness of Prosecutions of
Human Rights Violations’ (2013) 9 Annu Rev Law Soc Sci 269, 270
273
Neil Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations
of Human Rights’ (1996) 59:4 Law Contemp Probl 127, 132-133
274
ibid at 129
275
ibid at 150
276
Supra note 61 at Art 40(2)
277
ibid at Art 40(2)(b)(i)

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legal representation, 278 and a requirement to ensure the privacy of the child throughout the
proceedings.279

Whilst criminal prosecutions of adult human rights perpetrators have come to be seen as the most
appropriate and effective modality for achieving accountability in transitional justice, the use of
prosecutions to try child soldiers in this context is less well rehearsed.280 In this regard, whereas some
domestic prosecutions have occasionally been undertaken in order to hold child perpetrators
accountable during transitional justice processes, all international tribunals have demonstrated
unwillingness, or have enshrined in their governing statutes a jurisdictional inability, to prosecute
those under eighteen.281 For example, Article 26 of the Rome Statute explicitly limits the jurisdiction
of the ICC to only those perpetrators who were over eighteen when they committed their offence,282
thus making it impossible for the Court to try child perpetrators. Equally, of the ad hoc and hybrid
tribunals, only the SCSL explicitly retained the option to prosecute perpetrators younger than
eighteen,283 however the Court’s first prosecutor, David Crane, ruled this possibility out stating, inter
alia, that prosecuting child perpetrators would not be in accordance with the Court’s mandate to try
only those ‘most responsible’ for conflict criminality.284 Consequently, to date no child perpetrators
have been prosecuted before international courts, and thus the ability of these mechanisms to obtain
the accountability of children remains entirely untested.

Domestic prosecutions of child soldiers have, however, been implemented in a small number of
transitional jurisdictions. For instance, in Rwanda nearly 4,000 children were arrested and detained
awaiting trial for participation in the 1994 genocide.285 Whilst data regarding the number of these
children who went on to be prosecuted is lacking, a report by Rwanda to the CRC Committee notes
that, in 1998, 33 child perpetrators were prosecuted for the commission of crimes during the civil

278
ibid at Art 40(2)(b)(ii)
279
ibid atArt 40(2)(b)(vii)
280
International law certainly does not prohibit child prosecutions, although there remains some debate as to
whether any minimum age of criminal responsibility exists under international law. See, for example, Matthew
Happold, ‘Child Soldiers: Victims or Perpetrators’ (2008) 29 U La Verne L Rev 56
281
Godfrey M. Musila, ‘Challenges in Establishing the Accountability of Child Soldiers for Human Rights
Violations: Restorative Justice as an Option’ (2005) 5 Afr Hum Rts L J 32, 330
282
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
Art 26
283
UN Security Council, Statute of the Special Court for Sierra Leone, 16th January 2002; the ICTY and ICTR
did not set a minimum prosecutable age, but did not seek to prosecute anyone under 18. See Musila, Supra note
281
284
This is similarly a key consideration for other international tribunals, a fact that has led to it being questioned
whether a child could ever be held accountable by one. See, Supra note 233
285
Supra note 214 at 40

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war.286 Whilst this figure represented only around 3.3% of the total prosecutions that year, it serves to
highlight that domestic prosecutions were, at least to some extent, utilised to obtain the accountability
of children during the state’s transitional justice process. Further examples of domestic child
prosecutions in transitional contexts were equally evidenced in the DRC, however here NGOs had to
intervene and call on the state to halt these prosecutions due to sentences of execution being handed
down to children.287

Despite the lack of consistent use of prosecutorial modalities to obtain the accountability of child
perpetrators, several arguments have been put forward that seek to recommend criminal trials as the
most appropriate transitional justice mechanism through which to achieve this aim. One such
contention, in this regard, relates to the need for transitional states to ensure they achieve justice for
the victims of the child perpetrator, and suggests that only by subjecting child perpetrators to criminal
prosecutions can their victims obtain justice in a satisfactory manner.288 The putative necessity of
prosecuting child perpetrators in order to achieve justice for their victims is recognised within the
literature as arising from a perception by victims that retributive prosecutions represent, normatively,
the most effective and strongest form of justice provision.289 Lafayette notes, for example, that where
children have committed egregious criminal acts within their own communities, ‘in the interest of
justice, there is sometimes a demand in the community for judicial accountability, despite the age of
the child,’290 and, accordingly, a failure to prosecute represents a denial of justice to the child’s
victims.291 Equally, as is stated by Ward, the prosecution of child perpetrators represents a key facet of
the provision of justice as it provides communities with ‘a sense of finality and enables its members to
heal post-conflict.’292

286
UN Committee on the Rights of the Child, ‘Second Periodic Report of Rwanda’ (8th October 2003)
CRC/C/70Add.22, page 74
287
Jennifer Bond and Michele Krech, ‘Excluding the most vulnerable: application of Article 1F(a) of the
Refugee Convention to child soldiers’ (2016) 20:4 Int’l J Hum Rts 567, 577
288
Joshua A. Romero, ‘The Special Court of Sierra Leone and the Juvenile Soldier Dilemma’ (2004) 2:1 NW J
Int’l Hum Rts 2, 12
289
Lisa J. Laplante and Kimberly Theidon, ‘Truth with Consequences: Justice and Reparations in Post-Truth
Commission Peru’ (2007) 29:1 Hum Rts Q 228, 242-243
290
Erin Lafayette, ‘The Prosecution of Child Soldiers: Balancing Accountability with Justice’ (2013) 63
Syracuse L Rev 297, 311
291
ibid at 298
292
Sara A.Ward ‘Criminalizing the Victim: Why the Legal Community Must Fight to Ensure that Child Soldier
Victims Are Not Prosecuted as War Criminals’ (2012) 25 Geo J Legal Ethics 821, 831

 57

Calls regarding the necessity of prosecutions in order to achieve justice for victims of child soldiers
were apparent in post-conflict Sierra Leone.293 During discussions regarding the establishment of the
ad hoc tribunal in the state, the national community displayed a fervent desire for the jurisdiction of
the court to extend as broadly as possible and ‘that suspects of all ages be subject to prosecution and
that convictions carry the possibility of capital punishment.’ 294 Whilst, as has been noted, the
prosecutor of the SCSL eventually declined to prosecute persons under eighteen, the voices that
emanated from victims and communities in the discussions surrounding their justice needs are
indicative of a perception of prosecutions, even of children, as the most appropriate and accepted
means of achieving justice. 295 Accordingly, the implementation of prosecutions against child
perpetrators is arguably a necessary endeavour in order for states to legitimately claim they have
provided adequate justice to victims. In this way, Leveau notes that ‘justice for the victims may be the
most relevant justification when dealing with the prosecution of child soldiers.’296

In addition to the perception that prosecutions are the most appropriate modality for achieving
justice for the victims of child perpetrators, it has equally been suggested that prosecuting child
soldiers may be necessary in order to better protect the well-being of these children themselves, due to
the deterrent effect that prosecutions can have in the transitional justice context. In this regard, it is
suggested that failing to prosecute child perpetrators may have a deleterious effect on the safety of
children more generally by encouraging adult recruiters to conscript children and force them to
commit egregious acts, knowing that these acts will go unpunished.297 The potential for a lack of
prosecutions of child perpetrators to lead to an increase in their recruitment and use to commit human
rights violations has been recognised by a number of scholars and human rights organisations.298
Ward, for instance, argues that ‘children must be prosecuted or those who recruit them will be more
likely to mandate the children to perpetrate the most egregious war crimes, reasoning that no one will
be held accountable.’299 Equally, Amnesty International, in setting out its policy on child soldier

293
David Alan Harris, When Child Soldiers Reconcile: Accountability, Restorative Justice, and the Renewal of
Empathy’ (2010) 2:3 J Hum Rts Practice 334, 341
294
Supra note 288 at 9, footnote 66
295
Tim Wright, ‘When children commit atrocities in war’ (2010) 22:3 Global Change, Peace and Security 315,
321
296
Fanny Leveau, ‘Liability of Child Soldiers Under International Law’ (2013) 4:1 Osgoode Hall Review of
Law and Policy 36, 49
297
Christina Martinez Squires, ‘How the Law Should View Voluntary Child Soldiers: Does Terrorism Post a
Different Dilemma’ (2015) 68 SMU Law Review 567, 590-591; Megan Norbert, ‘Children at War: The Criminal
Responsibility of Child Soldiers’ (2011) 3 Pace Int’l L Rev Online Companion 1, 24
298
ibid (Martinez Squires); Supra note 292
299
Supra note 292

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prosecutions, notes that ‘where an individual can be held responsible for their actions, failure to bring
them to justice … may even encourage the use of children to commit atrocities.’300

Whilst concrete examples of child soldiers being recruited primarily on the basis of their
unlikeliness to be held criminally accountable are difficult to locate, the notion that not prosecuting a
particular class of crime or criminal may lead to a concomitant increase in related criminality is well
rehearsed in the transitional justice context. Such arguments have largely focused on the potential of a
failure to prosecute to foster a ‘culture of impunity’ in the post-conflict state, whereupon a lack of
retributive accountability being exacted leads perpetrators to deem themselves immune from being
held accountable, and thus emboldens them to commit criminal acts.301

At least in theory, the logic inherent within these arguments is transferable to situations involving
the use of children to commit egregious acts. Where these children are, either de facto or de jure,
immune from retributive prosecution, this potentially encourages recruiters to use them to commit
such acts in the knowledge that no one may be held accountable. Accordingly, prosecuting children
for the commission of human rights violations during conflict is, perhaps, necessary in order to signal
to recruiters that no such loophole in the law exists and, in doing so, it is hoped that children will be
less likely to be targeted and conscripted into armed groups for the purpose of committing crimes. In
this way, prosecutions might be said to be an effective means of obtaining the accountability of child
perpetrators, not only for the reason of holding them responsible for their actions, but equally by
deterring the use of children to commit crimes in the future.

When assessed in light of these arguments, it might be said that there exists a strong basis for
utilising retributive criminal prosecutions when seeking to obtain the accountability of child soldiers.
Clearly, in many post-conflict contexts, there exists a strong desire to see all perpetrators, even those
who were children at the time of the commission of their offences, prosecuted. Failing to oblige the
wishes of stakeholders in the transitional state arguably denies justice to the victims, and therefore
minimises the level of accountability that is obtained from the process. Furthermore, it can be argued
that the prosecution of child perpetrators may, in fact, be necessary in order to provide better
protection for them. Where states make clear that all those who commit egregious acts will face
retribution, regardless of age, a key incentive for recruiters to utilise children to commit these crimes
is diminished. Accordingly, retributive measures of justice are, perhaps, a useful means by which the
accountability of child perpetrators can be achieved.

However, despite these contentions regarding the positive role that prosecutions can play in holding
child perpetrators accountable during transitional justice, it has equally been suggested that trials, both

300
Amnesty International, ‘Child Soldiers: Criminals or Victims?’ (Amnesty International, December 2000)
online at: < https://www.amnesty.org/en/documents/ior50/002/2000/en/> 6-7 [accessed on 30th November 2017]
301
Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International
Criminal Court’ (2003) 14 EJIL 481, 489

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domestic and international, are an inappropriate modality for use with children, and thus should not be
utilised to obtain their accountability. A key consideration with regards to the negative effect that trials
can have on child perpetrators is the effect that exacting retributive accountability has on a child’s
ability to reintegrate back into society. Under Article 40(1) of the CRC, where states are seeking to
hold children accountable for a breach of the penal law, they must ensure that the process ‘takes into
account … the desirability of promoting the child’s reintegration and the child’s assuming a
constructive role in society.’ 302 Furthermore, the non-binding Beijing Rules proclaim that where
children are held criminally accountable, their well-being shall be paramount.303 To this end, in order
to comply with their responsibilities towards the child under international human rights law, the
rehabilitation and reintegration of the child back into society must be a key focus of the accountability
process.304

It is argued that, contrary to these requirements, transitional trials not only fail to promote the
reintegration of a child perpetrator back into society, but actually make their reintegration significantly
more challenging.305 If this is so, the efficacy of prosecutions as a modality for achieving the
accountability of child perpetrators must be regarded as insufficient. In regards to this suggestion,
Grossman notes that whilst retributive criminal prosecutions of children are generally assumed to be
the most sufficient model of accountability procurement from a victim’s perspective, from the
perspective of the child reintegration they are highly problematic.306 This is so because prosecutions
create conditions whereupon the child is denied the opportunity to begin their return to normality until
the conclusion of the trial process, which can take many years. 307 Accordingly, the process of
reintegration and rehabilitation is long delayed, which itself makes it ‘more difficult for him or her to
reintegrate into society.’308 Furthermore, due to the nature of retributive justice measures, the effect of
the child’s inclusion therein may be to label them as a criminal who needs to be removed from society
and punished.309 Whilst prosecutorial proceedings against children are required to be undertaken in a

302
Supra note 61 at Art. 40(1)
303
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33,
UNGAOR, 40th Sess, UN Doc A/Res/40/33, (1985) 206 [Beijing Rules], Art 5.1
304
Christina Clark, ‘Juvenile Justice and Child Soldiering: Trends, Challenges, Dilemmas’ in Charles
Greenbaum, Philip Veerman and Naomi Bacon-Shnoor (eds) Protection of Children During Armed Conflict: A
Multidisciplinary Perspective (Oxford, Intersentia, 2006) 315
305
Nienke Grossman, ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’
(2007) 38 Geo J Int’l L 323, 350
306
ibid
307
ibid
308
ibid at 350-351
309
Alex Newbury, ‘Very Young Offenders and the Criminal Justice System: Are We Asking the Right
Questions?’ (2011) 23 Child & Fam L Q 94, 113

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way that protects the privacy of the child,310 utilising, for instance, special measures to hide the child’s
identity, and reporting restrictions to prevent details of the case being published, it is widely
recognised that in the post-conflict context this may present a significant challenge.311 This is so
because, in the aftermath of war, domestic courts are often severely lacking in available infrastructure
and expertise, potentially making it difficult for them to properly comply with due process
requirements,312 and ‘international criminal tribunals simply do not have the resources in place to
ensure solid application of the rights that should be guaranteed to juvenile offenders.’313 Moreover,
due to the sensationalism that is commonly directed towards prosecutions for the commission of
conflict crimes, Wright notes that ‘in practice is may be difficult to shield a child soldier from adverse
public reaction, especially if he or she belongs to a small community, and if there is intense interest in
the trials.’314

Where prosecutions are unable to protect the privacy of child defendants this can be a significant
inhibitor to their reintegration, and thus cause such prosecutions to fall foul of a state’s obligations
under international law. Child soldiers’ fractured identity exposes them to severe psychosocial
difficulties when seeking to reintegrate and, if their former communities learn of their crimes due to
their being prosecuted, they may subsequently be subjected to negative labelling. The perception of a
child returnee as a ‘war criminal’ or ‘human rights abuser’ can lead to the child being stigmatized and
ostracised, which may significantly inhibit their prospects of successfully reintegrating. This is noted
by Ward, who argues that if child soldiers are exposed to criminal justice processes, and in being so
exposed are designated as human rights abusers, ‘any community doubt concerning the children’s
actions will be eviscerated, and it may be impossible to convince the community to accept them.’315
Indeed, concerns of this nature were evident in post-conflict Sierra Leone where, prior to the prospect
of child prosecutions being withdrawn, several NGOs raised concerns that these could destabilise the
processes they had implemented to reintegrate child soldiers,316 whilst in Rwanda it was noted that
‘communities have been reluctant to receive all the youths involved in atrocities….’317 To this end, in
light of the potentially damaging effect that prosecutions might have on a child’s potential to

310
Supra note 61 at Article 2(b)(vii); Supra note 303 at Art 8
311
Supra note 296 at 62
312
Charles T. Call, ‘Is Transitional Justice Really Just?’ (2004) 11:1 Brown Journal of World Affairs 101, 107
313
Supra note 296
314
Supra note 295 at 324
315
Supra note 292 at 833
316
Ilene Cohn, ‘The Protection of Children and the Quest for Truth and Justice in Sierra Leone’ (2001) 55:1 J
Int’l Aff 1, 11
317
Angela Veale, ‘The Criminal Responsibility of Former Child Soldiers: Contributions from Psychology’ in
Karin Arts and Vesselin Popovski, International Criminal Accountability and the Rights of Children (The
Hague, Hague Academic Press, 2006) 105

 61

reintegrate into their community following the conflict, Debarre states that the duty to secure the
child’s reintegration is ‘in tension with the idea that a criminal trial undoubtedly leads to the increased
stigmatization of child soldiers, while causing them future trauma.’318

As such, whilst, in the aftermath of violent conflict there are often strong calls from certain
stakeholder groups to see all perpetrators prosecuted for the commission of egregious acts committed
during the war, where children are concerned such calls must be tempered. Prosecutions of child
perpetrators, whilst not prima facie unlawful, arguably cause significant issues with regards to the
reintegration of children following conflict, which runs contrary to the duty incumbent on states under
Article 40 of the CRC. Whilst the prospect of a failure to prosecute child perpetrators potentially
leading to an increase in their use might be said to represent a strong argument in favour of retributive
approaches to child accountability, the potential should not outweigh the real. Protecting hypothetical
children from potential future recruitment must not be deemed a higher prize than assisting actual
child soldiers to return to their communities. Moreover, as is noted by Drumbl, even with regards to
hypothetical child soldiers, prosecutions may be problematic to their well-being, as the prospect of
facing retributive justice might serve to dissuade children already recruited into armed groups from
seeking to leave.319 Accordingly, although calls for retributive justice must be taken seriously, the
potentially damaging effect that prosecutions may have to the well-being of the child, and to the
prospect of their retribution, means that a retributive model of justice should not be deemed an
appropriate means by which to obtain the accountability of children.

5.1.2 Child Perpetrators and Restorative Justice

Given the difficulties caused by transitional states seeking to pursue retributive justice in order to
obtain the accountability of child perpetrators, it consequently becomes necessary to broaden the
search for suitable accountability mechanisms to those that operate within the restorative paradigm of
justice.320

As noted, whilst retributive justice seeks, through prosecutions, to assign guilt and impose
sanctions on perpetrators, restorative justice instead aims to mend the relational damage caused by the
criminal act ‘through healing, harmony and reconciliation.’321 Within restorative justice processes,
accountability is obtained by the offender accepting their actions and taking steps to make amends for

318
Alice Debarre, ‘Rehabilitation & Reintegration of Juvenile War Criminals: A De Facto Ban on Their
Criminal Prosecution?’ (2015) 44:1 Denver Journal of International Law and Policy 1, 5
319
Mark Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford, Oxford University
Press, 2012) 179
320
Claudia Morini, ‘First victims and then perpetrators: child soldiers and International Law’ (2010) 3 ACDI
187, 203
321
Nancy Amoury Combs, Guilty Pleas in International Law (Stanford, Stanford University Press, 2007) 136

 62

the damage they have done.322 This altered conception of accountability is recognised by Umbreit,
who notes that ‘in the restorative justice paradigm, the meaning of accountability shifts the focus from
incurring a debt to society to that of incurring a responsibility for making amends to the victimised
persons; from passively taking punishment to actively making things right.’323 To this end, in contrast
to retributive forms of justice which side-line the victim in favour of focusing wholly on the
culpability of the accused, restorative justice processes are far more victim-centric, and involve
dialogue between the offender and their victim to ascertain the harm done and how it can be healed.324

Whilst, in the context of the ordinary criminal justice processes of most states, restorative
accountability measures are still regarded as a sideshow to the dominant retributive paradigm,325
within transitional justice, restorative modalities of accountability procurement have been afforded
greater recognition, particularly where the accountability of children is sought.326 Indeed, given that in
order to comply with their obligations under Article 40 of the CRC, states must seek to promote the
reintegration of child perpetrators when dealing with their accountability, it has been suggested that
only restorative mechanisms can be regarded as appropriate modalities for holding children
accountable.327 Such is noted by Aptel, who states that ‘the criminal process is not appropriate for
juvenile offenders, even in modified forms. Rather, children should be dealt with using restorative
processes that promote diversion, mediation, truth-telling, reconciliation or other such processes.’328

Perhaps the most well-known restorative transitional justice mechanism, which was discussed in
section four, is the TRC. TRCs are restorative in nature as they do not to attempt to assign criminal
culpability or levy punitive punishments on those who admit to committing egregious acts.329 Rather,

322
John Braithwaite and Declan Roche, ‘Responsibility and Restorative Justice’ in Gordon Bazemore and Mara
Schiff (eds), Restorative Community Justice: Repairing Harm and Transforming Communities (Cincinnati,
Anderson, 2001) 63
323
Mark Umbreit, ‘Holding Juvenile Offenders Accountable: A Restorative Justice Paradigm’ (1995) Juvenile
and Family Court Journal 31, 31
324
Supra note 321 at 136-137
325
Anthony Bottoms, ‘Some Sociological Reflections on Restorative Justice’ in Andreas von Hirsch, Julian
Roberts, Anthony E Bottoms, Kent Roach, Mara Schiff (eds), Restorative Justice and Criminal Justice:
Competing or Reconcilable Paradigms (Oxford, Hart Publishing, 2003) 79
326
see, ‘Section V: Gross Human Rights Violations and Transitional Justice’ in Dennis Sullivan and Larry Tift
(eds), Handbook of Restorative Justice: A Global Perspective (London, Routledge, 2006) 337-434
327
Cécile Aptel, ‘International Criminal Justice and Child Protection’ in Sharanjeet Parmar, Mindy Jane
Roseman, Saudamini Siegrist and Theo Sowa (eds) Children and Transitional Justice (UNICEF, 2010) 98
328
ibid
329
Elizabeth Kiss, ‘Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice’
in Robert Rothberg and Dennis Thompson, Truth v. Justice: The Morality of Truth Commissions (Princeton,
Princeton University Press, 2000) 68-69

 63

these forums seek to facilitate dialogue and truth recovery from and between victims and perpetrators
by holding hearings wherein both classes of stakeholder may provide evidence of their actions or
victimisation in the course of the conflict.330

By establishing a non-adversarial platform for dialogue in this way, TRCs represent an important
means by which the restorative accountability of child perpetrators could be obtained.331 Where their
participation is facilitated, children can utilise the format of the TRC to acknowledge their own
criminality, disclose the details of such in order to satisfy the victims’ need to know the truth, and seek
forgiveness through apologies or promises of reparations.332 In enabling these outcomes, TRCs
facilitate the child’s self-attribution of responsibility for their wrongdoing, and thus arguably help
deliver accountability in a restorative and non-punitive manner. Accordingly, in light of the potential
ability for TRCs to contribute to the achievement of this aim, it has been noted that ‘TRCs serve as an
effective means of providing a non-judicial and non-punitive approach to accountability for child
soldiers’ and ‘offer an opportunity for the community to witness children soldiers taking ownership of
their misdeeds and instil a sense of responsibility for the transgression.’333

Of the TRCs that have been introduced in order to address questions of accountability in the post-
conflict context, only that which was established in Sierra Leone has sought to afford a specific role to
child perpetrators within its operations. Owing to the prevalent use of child soldiers during the conflict
in Sierra Leone, and the high rate of criminality committed by children, the Sierra Leonean TRC
recognised the necessity of enabling the procurement of the accountability of child perpetrators.334 The
TRC therefore held special hearings wherein child perpetrators could provide testimony, thereby
allowing them to disclose details of their offending for the purpose of creating a historical record of
the conflict.335 Accordingly, the final report of the TRC, whilst strongly highlighting that children
were heavily victimised during the war,336 also recognises that ‘children were not only victims, but
also became perpetrators in the conflict.’337

330
ibid
331
-----, ‘Children and Truth Commissions’ (UNICEF and the International Center for Transitional Justice,
2010) xi
332
Supra note 290 at 310-311
333
Supra note 292 at 835
334
Section 6, Truth and Reconciliation Commission Act 2000 [Sierra Leone]; Sierra Leone TRC, ‘Report of the
Sierra Leone TRC, Chapter Five: Methodology and Process’ Vol. 1, Chapter 5, para 3
335
ibid at para 9
336
Leonie Steinl, Child Soldiers as Agents of War and Peace: A Restorative Transitional Justice Approach to
Accountability for Crimes Under International Law (The Hague, Springer, 2017) 56
337
Supra note 334 at Vol. 2, Chapter 2, para 468

 64

Whilst, due to the TRCs child privacy policy, the details of the child soldier’s confessions are not
available, 338 the fact that the TRC’s final report was able to draw a considerable number of
conclusions regarding the role of child perpetrators in the conflict highlights that, when sought, such
confession were forthcoming. To this end, the work of the Sierra Leonean TRC can be said to
evidence the suggestion that where child perpetrator’s participation is facilitated, at least some
children will be willing to disclose details of their crimes to the commission, and, accordingly, be held
accountable. To this end, by providing a space whereby child perpetrators are able to acknowledge and
take responsibility for their actions, TRCs are arguably an effective restorative means by which their
accountability can be obtained.

Whilst TRCs may be the most widely acknowledged restorative mechanisms for holding child
perpetrators accountable during transitional justice, other restorative measures have also been posited
as potential means by which the accountability of child perpetrators can be achieved.

One such group of mechanisms, which states may be able to utilise in their transitional justice
programs, are those defined under the umbrella of traditional justice. Traditional justice practices are
highly culturally contingent, being, as they are, often associated with specific groups within a state’s
population,339 and rely on the group’s beliefs and customs to construct a means of providing justice
that is both accessible and relevant to the group.340 Whilst, when even available, such practices vary
considerably in terms of their use of restorative principles and the scope of their application,341 where
they are present within a post-conflict state, and do conform to the restorative paradigm of justice,
they may represent a potentially fruitful means of achieving children’s accountability.

The putative efficacy of traditional modalities of justice at achieving the accountability of child
perpetrators in transitional justice has been recognised both by scholars and the international
community. For example, this view is reflected within the Paris Principles, wherein it is stated that ‘in
some communities, children are viewed and view themselves as carrying bad spirits from their
experiences with armed forces or armed groups. Appropriate cultural practices, as long as they are not
harmful to children, can be essential to a child’s reintegration and should be supported.’342 Equally,
Lafayette notes that where a community demonstrates a lack of willingness to reintegrate a child who

338
William Schabas, ‘The Relationship Between Truth Commissions and International Courts: The Case of
Sierra Leone’ (2003) 25:4 Hum Rts Q 1035, 1057
339
Laura Azzaria and Naomi Roht-Azzaria, ‘Social Repair at the Local Level: The Case of Guatemala’ in Kieran
McEvoy and Lorna McGregor, Transitional Justice from Below: Grassroots Activism and the Struggle for
Change (Oxford, Hart Publishing, 2008) 150
340
See, Rosalind Shaw and Lars Waldorf, ‘Introductions: Localizing Transitional Justice’ in Rosalind Shaw and
Lars Waldorf, Localizing Transitional Justice (Stanford, Stanford University Press, 2010) 15
341
Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (2009) 3 IJTJ 28, 30
342
UNICEF, The Paris Principles. Principles and Guidelines on Children Associated With Armed Forces or
Armed Groups, February 2007, para 7.53

 65

has perpetrated abuses during the conflict, that group ‘will often engage in traditional or local
cleansing rituals prior to receiving these children … [which] include apologies to the community,
reparations, or providing some form of compensation.’343

The suggestion that traditional restorative practices could be utilised as a means of obtaining the
accountability of child perpetrators and assisting with their reintegration was evident during the
transitional justice process of Uganda. In response to the conflict in the state between the government
and the Lord’s Resistance Army (LRA), an armed group where approximately 90% of fighters were
children,344 communities in the devastated Acholi regions of Northern Uganda have called for the
utilisation of traditional practices such as mato oput to help reintegrate returning child soldiers and
hold them accountable for their aberrations. 345 Mato oput is a process that is traditionally used
following the intentional or unintentional killing of a person by another.346 The practice begins with a
period of mediation between the offender and the family of the victim wherein the offender must
admit the facts of what occurred, acknowledge responsibility for their actions, and agree to pay the
victim’s family compensation.347 Following agreement between the parties, a ceremony is conducted
wherein a bitter drink made from the root of the oput tree is consumed to signify the removal of the
bad relations between them.348 To this end, mato oput represents ‘a complex conflict resolution
process involving fact-finding, mediation, admission of guilt, and compensation … aimed at
reintegrating the offender into the community....’349

In light of these acknowledged features, it has been stated that ‘the restorative nature of mato oput
is clearly recognisable’ and indeed reflects other more mainstream restorative justice processes such as
victim-offender mediation.350 By requiring the child offender to take ownership of their actions,
confess the truth and seek to make amends through compensation, mato oput seemingly engenders the

343
Supra note 290 at 310
344
United Nations, ‘Uganda: Child soldiers at centre of mounting humanitarian crisis’ (undated) online at:
<http://www.un.org/events/tenstories/06/story.asp?storyID=100> [accessed on 25th November 2017]
345
Angela Veale and Aki Stavrou, ‘Former Lord’s Resistance Army Child Soldier Abductees: Explorations of
Identity in Reintegration and Reconciliation’ (2007) 13:3 Peace and Conflict: Journal of Peace Psychology 273,
290
346
Charles Baguma, ‘When the Traditional Justice System is the Best Suited Approach to Conflict Management:
The Acholi Mato Oput, Joseph Kony, and the Lord's Resistance Army (LRA) In Uganda’ (2012) 7:1 " Journal of
Global Initiatives: Policy, Pedagogy, Perspective 31, 36
347
Tim Murithi, ‘African Approaches to Building Peace and Social Solidarity’ (2006) 6:2 African Journal on
Conflict Resolution 9, 25-26
348
ibid
349
Linda M. Keller, ‘The Continuing Peace with Justice Debate: Recent Events in Uganda and the International
Criminal Court’ (2017) 48 The University of the Pacific Law Review 266, 269
350
Supra note 336 at 352

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accountability of perpetrators in a manner that correlates with Umbreit’s definition of restorative

accountability, whilst equally helping to reconcile the affected communities. 351 In this way, by
enabling child soldiers to participate in mato oput, the Ugandan government can ensure they are held
accountable for their aberrations whilst assisting them to reconcile with their victims and return to
their communities. This, therefore, seemingly, satisfies both the need to determine the child
perpetrator’s culpability and the duty to promote their reintegration. Although, owing to the culturally-
contingent nature of mato oput, it is difficult to utilise its potential as indicative of the likely success of
other traditional justice models, the example serves to highlight that where traditional restorative
justice processes exist in a post-conflict state, they may represent a useful means by which to hold
child perpetrators accountable, and thus should be explored.

However, despite the indication, through analysis of both TRCs and restorative forms of traditional
justice, that restorative processes might represent a beneficial means by which transitional states can
safely obtain the accountability of child perpetrators, this finding has equally been contested. One key
concern in this regard relates to the usefulness of restorative justice processes in achieving
accountability in general. To this end it has been argued that the reliance of restorative modalities on
the self-confession of the perpetrator, and the inability to question their account of the facts in an
adversarial manner, means that the potential of the process to test the accuracy of the perpetrators
confession is minimal.352 Accordingly, when engaging with restorative processes of accountability
procurement, perpetrators may be better able to obfuscate their role in the criminality or blame others
for their actions, which necessarily reduces the level of accountability obtained by the process. For this
reason, Mendez argues that retributive models of justice are, in actuality, better at achieving the
accountability of perpetrators than restorative processes as, ‘the adversarial format, with the ability to
compete with open arms in the establishment of the truth and to confront and cross-examine the
opponent’s evidence, results in a verdict that is harder to contest … the truth thus established has a
‘tested’ quality that makes it all the more persuasive.353

However, despite the contention that the ‘tested’ truth delivered by retributive prosecutions is more
conducive to the achievement of accountability than that discovered through restorative models of
justice, as has been noted, the potential for prosecutions to leave child participants open to
stigmatization means that they are incompatible with the objectives sought by the CRC and should not
be used to achieve the accountability of children in transitional justice. To this end, whilst restorative
methods of justice may not be able to test the individual perpetrator’s account as surgically as
prosecutions can, and thus are at greater risk of being provided misleading information regarding the
perpetrator’s role, or lack thereof, in a criminal act, to claim that they obtain only a fractional truth is

351
Supra note 347 at 37
352
William J. Danaher, ‘Music that will bring back the dead? Resurrection, Reconciliation, and Restorative
Justice in Post-Apartheid South Africa’ (2010) 38:1 Journal of Religious Ethics 115, 118
353
Juan E. Mendez, ‘Accountability for Past Abuses’ (1997) 19:2 Hum Rts Q 255, 277

 67

misleading. Rather, by providing accountability forums in which child perpetrators are able to safely
participate and provide information, restorative justice modalities must be said to necessarily enhance
the level of overall accountability obtained by the transitional justice process. Without their operation,
child perpetrators would not be able to safely take part at all, and accordingly, their testimony could
not be achieved. Resultantly, a whole class of perpetrators would not be held accountable. As such,
whilst care must be taken to ensure restorative justice processes obtain as accurate information as
possible from child perpetrators, it must be said that they have an important role to play in transitional
justice, and are potentially capable of effectively achieving the accountability of child perpetrators.

5.2 Conclusion

Child soldiers are acknowledged to have committed many egregious acts of criminality during
conflict. To this end, children caught up in war often take on a dual status – they are at once both
victims and perpetrators. Whilst the operation of the victim first mentality, displayed by many
international actors has sought to minimise the potential to hold children accountable in transitional
justice, it is evident that, due to the needs of victims, a lack of accountability for child perpetrators will
not always be possible. Particularly where children have been shown to demonstrate willingness and
independence in their criminal actions, some form of accountability will often be required. In seeking
the accountability of children during transitional justice, states must be careful to avoid the
stigmatising effect that prosecutions can have on children. To fail to do so may cause considerable
difficulties with regards to their prospects for reintegration, and, accordingly, may cause the
transitional state to fall foul of its obligations under the CRC. To avoid these effects, states may
instead turn to restorative modalities of justice such as TRCs or traditional justice practices, which
seek to obtain accountability in a non-adversarial manner by facilitating constructive dialogue between
the offender and their victim, with the aim of promoting healing and forgiveness. In doing so it has
been argued that the potential for the application of stigma on the child is greatly reduced, and thus
restorative justice processes represent a safer environment for child perpetrator participation that are
more conducive to obtaining their accountability. Whilst care must be taken to avoid child participants
in restorative mechanisms from obfuscating their role in criminal acts, which necessarily reduces the
accountability obtained with regards to that specific perpetrator, by facilitating the participation of
children, and helping to obtain from them the facts of their involvement in the conflict, restorative
justice processes must be said to provide a potentially lucrative means of holding children
accountable.

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CONCLUSION

The growth in recognition of the human rights of children means that whereas young people could
once be sidelined in post-conflict accountability processes, they must now be afforded a role. Failure
to do so is not only a breach of international law, but is pragmatically nonsensical. Children have
much to offer in transitional justice and a failure to ensure their participation may seriously delimit its
effectiveness. Accordingly, in order for post-conflict states to adequately achieve the necessary goal of
holding human rights perpetrators accountable, it is imperative that they design and implement the
entirety of their transitional justice processes so as to facilitate the participation of children.

Where the voices of children are heard in the consultation phase of the transitional justice process,
it has been shown that the overall level of accountability obtained will likely be increased. The
effectiveness of any accountability measure is highly dependent upon its relevance to stakeholders.
Children’s unique position in society, and their capability to assist states in understanding their own
requirements, means that they must be constructively and safely included in discussions regarding the
proposed form that accountability will take. Only by doing such can transitional justice processes
reflect their needs and thus adequately achieve accountability for them. Equally, where children are
witnesses to acts of criminality, they must be enabled to impart the information they have in a safe and
effective manner. Failure to do such necessarily excludes their narrative from the accountability
process, and thus minimises the level of accountability obtained. Transitional states must, therefore,
ensure that all accountability mechanisms are capable of enabling the participation of child witnesses
in a manner that protects them and facilitates their disclosure. Finally, whilst children are generally
regarded primarily as victims of conflict, they may also commit serious criminal acts themselves.
Where this occurs some form of accountability is necessary. Despite the dominant paradigm of
accountability within transitional justice holding prosecutions as the most appropriate mechanism,
these may place children at risk of considerable psychosocial harm. As such, post-conflict states must
look to more restorative modalities of accountability provision that avoid stigmatizing the child, and
facilitate their reintegration into their community. In doing so, transitional states can hold children
accountable in a way that meets their obligations under the Convention on the Rights of the Child.

 69

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