Child Soldiers. They are cheap, available in vast numbers and expendable. They are easily abducted, or easy to force to join armed groups, and easy to control. They pose no threat to a military hierarchy as their obedience is easy to establish and to maintain through manipulation and control using fear and intimidation.
Cheap soldiers, these children! They make great soldiers as they can be fearless fighters. Their missing education leads them to take huge risks as they can be convinced of their invincibility to bullets or injury and encouraged to think that their actions substitute for playing games. Calls to martyrdom and heroic deaths, fighting for a region or the fatherland are considered a romantic and exciting attraction to young and easily influenced children.
Why are there 300,000 child soldiers in the world today? A rebel leader in an African country in the south of the continent gave once a very good and very direct explanation. Children, he said, are prolific on the African continent – they are easy to enlist or to abduct, have no expensive demands, are easy and cheap to provide for, and they are willing, absolutely fearless fighters, and obedient. They are the cheapest weapon available ever. And they are expendable. He saw absolutely no reason as to why they should not be recruited. Moreover, his reasoning seems to be that of the majority of warlords, militia and unfortunately, of commanders of legitimate armies as well.
Great soldiers, these children! Boys would like to follow the example of males expressing their masculinity by using force. This is especially so when a boy has seen the humiliation of family members by armed forces. He would rather identify with the strong ones than the weak ones. In many societies, particularly rural ones, a man gains respect in being seen as a fighter. Joining armed forces means having not only enough food but drugs, alcohol, money, mobile telephones and such material gains, as the power and influence of the armed group within its territory provides. For many children who are deprived of a meaningful childhood, with no chance of going to school or of learning a craft, and having to work hard for their parents, the only perceivable advancement in a society that has not the requisite means to care for its many children may be to accept the offers of the recruiters.
Cheated soldiers, these children! Children may be abducted and forced to be military recruits, or they may choose to join voluntarily because they are hungry, because they find it exciting to have a gun and enjoy the feeling of power to have command over village adults to whom they had previously to be deferential, because they were orphaned with nobody to turn to, because they are seeking revenge for killed or gravely injured parents, raped sisters and looted and burned homes, thus enforcing the cycle of violence, and thus becoming victims as well as perpetrators.
Exploited soldiers, these children! Girls may join armed groups to leave traditional oppressive societies. The majority however are those who were abducted and forced to be bush wives, sex slaves or domestic aids before even getting the chance to being trained as combatants. Those who join on their own free will (if one can consider that there is a choice when one lives under steady oppression), join armed groups because they would like to be free from traditional and discriminatory upbringings. As a female combatant they can transgress gender roles and gender stereotypes, they can even command males, are often seen as better logisticians and will have a chance to learn and explore self-confidence and leadership skills. However, there is a high price to pay: girls have to break even more taboos than boys by fulfilling the orders given. Girls who have been sex slaves or bush wives will not be accepted back into their society, even if they want to return, and even less so if they are pregnant or have borne children. Nobody accepts the children of hate, whose fathers are the enemy, and nobody accepts their mothers either. Some of the girls having been brought back to their families were given the choice of abandoning their small children in order to be married to a man selected by the family, or to be chased away with their children.
Mistreated soldiers, these girls! It took quite some time, to be exact until the 20.7.2007, until the first ever sentence in the history of law was pronounced against persons having recruited and used children younger even than 15 as soldiers. One should think that legal protection which includes always the protection of the vulnerable (and children are certainly vulnerable) would have automatically involved the protection of children from being recruited as soldiers. This has not been the case. Child soldiers have not been protected by anything or anyone. Warlords using them were not brought to justice for a long time, as local courts did not have the strength, the capacity or the means to go after them and international Courts did not have the issue on their agenda.
Under Article 4 of its Statute, the Special Court for Sierra Leone (SCSL) – a United Nations backed tribunal set up to prosecute and bring to trial those bearing the greatest responsibility for the commission of war crimes during the decade long civil war in Sierra Leone – had the power to prosecute persons who committed serious violations of international humanitarian law including: “Conscripting or enlisting children under the age of 15 years into armed forces or groups using them to participate actively in hostilities (“child recruitment”)”.
Its judgements were the first to adjudicate at the international level the war crime of conscription, enlistment, and/or use of child soldiers in armed groups or conflict. The most important definitions such as “recruitment” (any form of obtaining children into whatever kind of armed forces), “enlistment” (officially recruiting children in an organized and prescribed way), “conscription” (enlisting children in the armed forces/army of a country) “use” of children as soldiers (including every kind of job given to children in a war or warlike situation/armed conflict that could endanger them were made.
The Prosecutor of the International Criminal Court charged Joseph Kony, Vincent Otti and Dominic Ongwen from Uganda with, among other crimes, enlistment, through abduction, of children under the age of 15 years into armed forces.
One of the counts in the Indictment charges enlistment through abduction of children residing in a camp for internally displaced people in Uganda. This is unfortunately a practice not only happening there. Wherever one finds refugee camps one will find recruiters addressing young boys to become fighters and upon resistance these kids will be abducted. Refugee camps are an important “reservoir” for luring children into a “brighter future” by recruiting them as well as by trafficking them for other illegal purposes.
The International Criminal Court (ICC) conducted another trial against Thomas Lubanga, alleged war lord in the Democratic Republic of the Congo. All charges brought against him relate to child soldiers. Confirming the charges against Lubanga, the Pre-Trial Chamber made two important legal statements. First, the Pre-Trial Chamber interpreted the term “to actively participate in hostilities” broadly, to include also participation in combat-related activities, such as reconnaissance, spying, sabotage, and the use of children as decoys, couriers or at military checkpoints, thus using and affirming the previous definition of “use”given by the Special Court for Sierra Leone and based on the definition used by the International Committee of the Red Cross (ICRC). Second, the Pre-Trial Chamber considered one of the elements of the Rome Statute, namely, that children be conscripted or enlisted into the “national armed forces”. Although this provision applies in international armed conflicts, the Chamber found that it is not limited to the armed forces of a State, and that the UPC could be considered as a “national armed force”.
Thus, changes are occurring in the field of legal protection for child soldiers, at least in the international sphere. For national jurisdictions it remains to be seen if the example of the international courts has set any precedents. The law can only pave the way for finding legal solutions to problems. It cannot solve them. The more important and by far more difficult task remains with society in reintegrating demobilized children. It will be a painfully slow task to reconcile victims of child soldiers with these child soldiers. It will be painfully slow also to reconcile child soldiers with their own conscience, with their duty to testify as witnesses and to revisit all the horrors they have experienced, to reconcile communities affected by the armed forces with their perpetrator children, and to find employment for these children when they become adults who have learned how to kill but not necessarily to read and to write. It will be necessary for society as a whole to undertake this reintegration, as difficult as it may be, otherwise demobilized child soldiers have only one option left: to exercise what they have learned, to kill, to rob and to burn, but this time for criminal organizations which do not shy away from employing them. This cannot be in the interest of any national community, nor can it be in the interest of the international family. It will therefore be necessary for any society affected to ensure legal as well as practical protection is provided for every child involved in armed conflict, be it a child victim, a child witness or a child soldier.
For decades there have been international instruments to protect children from conscription, enlistment and use in armed conflict, but the practice has persisted. In recent years, however, these prohibitions have been put into operation at international criminal tribunals – at the Special Court for Sierra Leone and the International Criminal Court. International criminalization of the recruitment and use of children into armed conflict has been welcomed as a serious step in the right direction in the fight against impunity for this practice. Domestic prosecutions will need to follow in order for this criminal prohibition to become the norm in state practice. As Radhika Coomaraswamy, former Special Rapporteur on Children in Armed Conflict, has stated: “It is clear from the analysis of root causes that the leadership of the armed group is a key factor in the recruitment of children. Therefore the fight against impunity, holding these leaders accountable, and deterring them from future action must continue The fight against impunity at the international level is at its nascent stage and serves as a signal that this crime will no longer be tolerated. To be truly effective, there must be action at the national level. National legislation, national prosecutions and national systems to prevent recruitment must be set up if the struggle against the recruitment and use of child soldiers is to be sustainable. Building national capacity to do that is one of the most important challenges of the next few years.”
Forced Marriages – Bush Wives. Astonishingly brutal and large-scale crimes were and are committed against civilians during decade long conflicts especially in Africa, and hundreds of thousands of women and girls were targeted for violence specifically on the basis of their gender. They were the victims of crimes such as rape, sexual violence, sexual slavery and forced marriage.
The term bush wife war first used in connection with the crimes committed against women and girls in Sierra Leone during the 13 years long conflict in the country and are now still occurring in all countries where armed conflicts are raging. Forced marriages are a pervasive feature of armed conflicts and occurre on a great scale in all these countries. Thousands of women and young girls are forcibly abducted by armed rebels to be bush wives. Even under aged girls are taken from their homes and families without consent and viciously raped by armed men.
Bush wives have no rights and no choice. The practice of giving a girl to a man is a common way of rewarding commanders or other members of rebel groups active during a conflict. Such forced marriage always involves rape and non-consensual sex, but it involves other things as well – an exclusive relationship under the control of a man, a demand that the wife provide household services, travel with the man, taking care of all his domestic needs. Attempts at escape could lead to a wife’s death at worse, or a severe beating at least.
The Appeals Chamber of the Special Court for Sierra Leone held that: “…‘forced marriage’ involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with another person resulting in great suffering, or serious physical or mental injury on the part of the victim. …‘forced marriage’ implies a relationship of exclusivity between the ‘husband’ and ‘wife’, which could lead to disciplinary consequences for breach of this exclusive arrangement. ”
Recognizing forced marriages as a crime is a step forward in international law and future indictments against perpetrators will affirm forced marriage as an international crime in international law. The decision of the Appeals Chamber of the Special Court paves the way for similar charges in the conflicts in northern Uganda and the Democratic Republic of Congo, where human rights groups have documented the use of bush wives in the ongoing disputes.
For those who had been subjected to this repugnant practice however, their suffering goes on.
At the end of a conflict, the former bush wives remain victims. The main challenge they face is dealing with the stigma attached to them. Even after the horrors of the war they face the judgment of the community and many are ostracized and forced to live as social outcasts. Many find themselves rejected and driven out by their own parents. Many became pregnant during the war. Many had born children to their husbands. Those children of hate are rejected by society along with their mothers. Living in exile, being ostracized in a society that depends on family and extended family for support, and being born into this expulsion, makes life especially difficult and many former girl combatants are forced to turn to a life of prostitution in order to survive and raise their children.
Children affected otherwise by (armed) conflicts. Far too many children face lives in difficult circumstances during and after an armed conflict. They face problems that involve their health and education; many are orphans; many live their lives on the street. These children have no voice; and the awful problems of the thousands of children who have survived involvement in armed conflicts often remain unheard and their plight is not understood. Child soldiers are at the same time victims and perpetrators and carry horrendous psychological scars earned through the atrocities they have been forced to witness or commit. After demobilization, they often have little to no sense of worth and frequently as young adults, continue to take drugs or turn to alcohol and persist in their anti-social violent behaviour – the behaviour they learned as the norm when they were child soldiers.
Contemporary estimates put the number of children enlisted as soldiers world wide at 300,000. Still more, millions of children are suffering through exposure to the wars raging in their countries.
There is a phrase that is often used when speaking of modern warfare, which is particularly abhorrent, the so called collateral damage. Child soldiers, bush wives, children damaged by war who are psychological or physical cripples for the rest of their lives are but collateral damage. They are often neglected when official assistance is being distributed as these children are seen to be of no value to societies because they have little chance of ever recovering from their traumas.
Raja of Sri Lanka was 12 years old when the rebels approached his father and asked for one of his sons to be given to fight the rebel war. The father had little choice but to hand Raja over; he had to protect his family from attack by those same rebels. Some weeks later, army soldiers came and approached the father with a request for a son for the war. For the same reason, the father was forced to part with his eldest son. The brothers, fighting on opposing sides, met on the battlefield. Raja killed his older brother, thus breaking one of the most sacred taboos of Sri Lankan society. He has never been able to return home, even though the war has ended long time ago.
Maria of Colombia was sexually abused by her stepfather when she was 8 years old. At the age of 9, Maria was sexually abused by her mother’s brother. Her mother knew but she didn’t dare to help her. Maria ran away from home and joined a group of rebels thinking that this was her only option for survival. She did not know what kind of life awaited her with them. Now it was the rebels who sexually abused her on an almost daily basis. At the age of 12 she had already survived two abortions forced on her by the rebels. The only person to help her was a woman who worked as a nurse for them. Maria was rescued finally, and sent to live with girls who had been subjected to similar experiences. When asked what she would like to be when older, she answered she wanted to be a nurse so that she could do good. Unfortunately, to qualify for a career in nursing, one has to have had a college education in that country – an opportunity not available to Maria.
Paul from Sierra Leone was 8 years old when the rebels came. He was brought to a training camp and joined a “small boys unit.” There was not one day that passed when he was not administered drugs or alcohol. He was not trained to learn to read or write. He only learned how to kill, maim and torture without conscience. One day, he and three other boys that were not much older than him, were part of a rebel group that invaded a village. One boy caught could not stop screaming in his terror. They hacked off the child’s right hand. When the little boy now screaming in agony howled for mercy, they chopped off his left hand, then his right leg, then the left leg. The little boy was still alive when they dumped him into the village latrine. Dazed with drugs, the four child soldiers shouted, laughed, and danced in celebration to the cries of the dying boy.
Most of these children, asked to recount their stories will be unable to remember many of the appalling cruelties they have inflicted and when these crimes were committed. They only know that they are perpetrators of such vicious violence and, like in a repetitive, unending horror movie script, are haunted by the heavily misted memories of their deeds. In many cases, such psychological terror will remain with them for as long as they live as they are usually the last to benefit from any support or assistance that may be available in post-conflict circumstances.
And the victims? The SCSL established the Witness and Victims Section (WVS) as a neutral body responsible for supporting and protecting all witnesses before, during and after their testimony. In carrying out its work, the Section has heard many stories of victims of the war. Ibrahim was a young boy when his fingers and thumbs were chopped off. Now he sells bags stitched by his grandfather and is unable to speak about what happened to him during the war. He simply says that he was 12 years old when he “had this problem”. WVS investigators having to interview young people such as Ibrahim have to ascertain whether participating in the judicial process as witnesses would result in further traumatisation of those who have experienced human rights abuses.
There are special difficulties of examining witnesses when their testimony would result in re-victimization, especially when the witness was a child at the time of the commission of the abuse. It is very difficult to listen to a witness whose emotional state leads to the constant interruption of his/her testimony, who breaks down under cross examination when the questions asked bring back terrible memories. Defence lawyers charged with proving the innocence of their clients can be particularly cruel to such witnesses. Imagine how it was for the girl who, as a nursing mother, had been gang raped by a group of rebels, who then gouged out her eyes so that she would be unable to identify her attackers, and who, under cross examination, had to suffer the inference that there had perhaps been no rape but that she had perhaps invited the sexual encounter.
It is especially difficult for girls to testify about sexual crimes committed against them, particularly in those societies that condemn girls who have lost their virginity even when it was not the girls’ will or fault. In very poor societies, the economic damage of losing the possibility of a bride price for a girl can have far-reaching consequences. These poor girls face the wrath and punishment of their families and those who have been married before may not be accepted back by their husbands, even when their injuries show that they defended themselves against the sexual attack.
In many countries, judicial systems are not interested in victims who are unable to give testimony as witnesses. Frequently, the social infrastructure of such countries has been damaged or destroyed. A great number of child victims depend on their families if the families have survived, on an extended family, if it exists, or on the good will of neighbours if they have the means to help, and on the community, if it has not been destroyed. Governments in post-conflict countries are often corrupted by financial donations meant to help the victims of war and the monies are pocketed by selfish and greedy politicians. It is largely left to the private sector, non-governmental and international organizations to provide some assistance to victims, such as basic medical assistance for example. The luxury of psychological assistance for victims is rarely, if ever, available.
All witnesses, adult or child, male or female, fear giving testimony. The judicial systems in most post-conflict countries are unable to guarantee that testimony given in confidence will stay confidential. Corruption often prevails and “leaks” as to who provided what information against whom, can, and often is, sold to those seeking revenge against those who testified. Giving testimony in a closed setting is also no water tight guarantee that the identity of the witness and testimony given will remain confidential. In post-conflict countries, corrupt or untrained court personnel may speak about what they have heard whether for financial gain or for psychological reasons (to deal with emotional distress caused by hearing the horror of testimonies when human rights abuses are described in detail). Also, professional ethics can be missing in many post-conflict countries. It thus takes a lot of courage, particularly for a child, to give testimony, especially when recalling events will cause distress, compounded by having to face the accused in a court of law and the verbal guile of skilled lawyers.
As a matter of assistance, the United Nations Office on Drugs and Crime (UNODC), the United Nations Children’s Fund (UNICEF) and the International Bureau for Children’s Rights, undertook the drafting of a “Model Law on Justice in Matters Involving Child Victims and Witnesses of Crime” and its commentary.
This Model Law shows a further most explicit principle, the implementation of which is of paramount importance: that the concept of “protection” of child victims also includes children not willing or not able to testify or provide information as well as child suspects or perpetrators who have been victimized, intimidated, forced to act illegally or having done so under duress. This means that from the very beginning of an investigation, child victims (even if they are suspected perpetrators) have to be protected under any circumstances. The widespread practice of providing protection only for those victims who are willing to testify and to use protection as a tool for blackmailing victims into becoming court witnesses is not acceptable.
The law provides a whole set of rights for child witnesses (related to the relevant international documents) to be taken into consideration, namely the right to be treated with dignity and compassion; the right to be protected from discrimination; the right to be informed; the right to express views and concerns and to be heard; the right to effective assistance; the right to privacy; the right to be protected from hardship during the justice process; the right to safety; the right to special preventive measures; and the right to reparation.
For the same purpose the creation or the reinforcement of a national body for the coordination of protection of child victims and witnesses is suggested, in order to develop national policies on prevention and protection concerning such children, to recommend programmes, monitor the implementation of existing procedures, establish “hotlines” as well as guidelines for training of professionals and to initiate research on the topic.
Strict confidentiality by as well as special training for every professional involved is mandatory for the protection of child victims and witnesses as well as for developing trust from the side of the vulnerable children.
Another very important matter is the credibility of the evidence given by a child witness. Very often, a child is seen as not really credible or credible to a very limited extent and in some legislations evidence of a child has no value at all if not corroborated by other evidence. There is no reason not to believe a child if no indication to the contrary is shown. There is no reason that a well trained judge, police agent, if necessary with the assistance of a psychological expert or through a competency examination could not correctly evaluate evidence given by a child.
Perpetrators have legal assistance. It seems mandatory that a child witness gets legal assistance as well. The Model Law provides for that, and lists protection measures.
Without protective measures, giving evidence might amount to a death sentence handed out by traffickers, organized crime or war lords. Being confronted with their torturers, warlord, traffickers, smugglers can be an ordeal especially for children who already have to get into terms with their traumas. Therefore national laws should provide for a specified range of protective measures, as mentioned in the Model Law (and in some countries already granted to adult witnesses) such as: expunging from the public record any names, addresses, work places, profession or any other data or information about the child, testifying behind an opaque shield, through contemporaneous examination in another place communicated to the courtroom by means of closed-circuit television, or by way of video-taped examination of the child witness prior to the hearing.
When peace returns to a country, the plight of its children is far from over. The disarmament, demobilization and reintegration (DDR) of former combatants is one of the first steps in the peace process. Many of those ex-combatants will be children. The United Nations DDR Resource Centre describes the DDR of ex-combatants as “a complex process, with political, military, security, humanitarian and socio-economic dimensions. It aims to deal with the post-conflict security problem that arises when ex-combatants are left without livelihoods or support networks, other than their former comrades, during the vital transition period from conflict to peace and development. DDR lays the groundwork for safeguarding and sustaining the communities in which these individuals can live as law-abiding citizens, while building national capacity for long-term peace, security and development.” On the DDR process involving children, the United Nations recognizes that child DDR is not the same as that for adults. It notes that when DDR exercises have made the presentation of a weapon for disarmament as a criteria for eligibility for DDR, children, especially girls, have been excluded. It also recognizes many children associated with armed forces and groups are not just combatants with weapons and must also be considered as child soldiers and released by the groups that recruited them and receive reintegration support.
It goes without saying that in the DDR process, children that do have weapons will most likely have to hand them over to an adult combatant who is seeking the DDR reward package. Girls particularly suffer. Not only will a girl soldier lose her weapon to a male, she will most likely never present herself for the DDR process for fear of being identified as a child soldier and thus stigmatized and rejected by her community, family and friends.
Mary was a girl soldier. She was by far a more effective and disciplined soldier than the boys under her command. As a girl who had dared to break with tradition however, it was clear that any attempt to reintegrate her into a post-conflict society would fail as she had learned to question and disobey male authority. Her former commander decided that he should disarm her and give her weapon to a male for the DDR process, and demote her to the inferior female status she held before she became a soldier.
Sarah was unable to speak about her experiences as a “bush wife” from fear that the shame would reflect badly on her and her child. She did not want to be considered as a “savage of the jungle”. Her silence was to no avail and she was rejected by her village and ostracised by even her closest family members. When she received financial aid from a non-governmental organization dealing with victims of the war, she was accepted back into her community. When the financial aid ran out, she again found herself without family or friends or community support.
Many families and communities that did accept the reintegration of former child combatants were not given support or information on what to expect from a child that may continue to display a violent disposition as they have been reared in a system of violence and their moral development has been stymied by their exposure to armed forces. These children have learned violence as a way of life, they do not know how to reason or conduct themselves in a non-violent way in any given situation. Some families accept the children back at least as long as there is some financial assistance provided. When that stops, their care for their children stops too.
Although there are many organizations in the world today attempting to assist former child soldiers, it remains the best case scenario that such children may be given a little financial assistance, the chance of some basic education and if lucky, a little psychological assistance. In the worst case scenario they are abandoned by all and are unwelcome wherever they go. For their victims, often children themselves who have been amputated, mutilated and permanently handicapped, the future is even bleaker and they are usually left dependent on the good will and assistance of non-governmental organizations and civil society.
How can justice be considered in the face of such problems? Can it be used to forgive, or to forget, or to help to reconcile, or just to punish? There is no justice system, no amnesty treaty, and no government decision that can force a victim to forgive or forget. It is a choice that has to be made by the victim. What about punishment? Is punishment a step towards reconciliation? If so, must justice not first be done so that reconciliation is possible?
Children “on the move”
Ali, 15 years, comes from Afghanistan. He has been sent by his parents to Europe because of the ongoing conflict in his country which ruins the chances of a normal life for the family. His father said that the family, the parents and his brothers and sisters will not get asylum in Europe as matters stand but that he, Ali, will not be sent back and has to immediately claim asylum and then ask for family reunification as his right according to the laws in Europe. Father has given him as much money as he could afford and Ali started his journey with the assistance of professionals who knew ways to enter and leave countries. They were helpful as long as he had money. Later on it became difficult and Ali had to fight for survival, to beg, to work for the traffickers, to steal, to do anything in order to continue his journey. Finally, after nine long months, he arrived at the border of a European country. Border police arrested him and brought him to a centre where a lot of other children were placed. Now he waits. There is nothing more to do than wait. Wait, if his asylum claim would be accepted, wait to get assistance, wait to see, if he would be able to see his family again. Sometimes he even doesn’t want to think about them, hating them because they have sent him to this misery. Sometimes he thinks that it is his responsibility to safe his family and that he might not succeed. Finally, after 8 more months, he is told that his claim is not accepted, but that he would not be sent back, being less than 18 years of age. At night, other boys in the Centre recommend that he should escape and try his luck in another European country. They tell him that others have been successful this way.
Now, Ali is on the run another time, without money, with little knowledge of language, situation, geography, depending fully on the assistance of unknown “helpers” who ask a price for their assistance.
Exploited unaccompanied children on the move, these children!
Juan, 12 years old, and his father come from a small, very poor village in a very poor country where there is absolutely no work to be found, neither for his father, nor for him. He was at school from age 8 to 12; more was not possible due to the financial situation of the family. He is not really skilled in anything but ready to assist his father in whatever work there is. Father hears from neighbours that there are possibilities for people to work in other countries and to send money back home, but only for those who had the courage to clandestinely leave their country and to enter the other one the same way. So father sells his last piece of land and decides to try his fortune and to take Juan with him, hoping that the two of them would find work easier as a team. After a really bad journey, first in an almost broken down bus, later in a similar boat and then again by foot in bad weather, the smugglers leave them in the middle of a field, telling them to throw away their passports or any other identification documents, so that they could not be sent back home by the authorities of the receiving country, as they wouldn’t know where to send them to. They hand over a telephone to Juan, explaining that he should call upon arrival to be told what further to do. Father and son do what told. They clandestinely arrive in the country of destination and call the number given. Somebody comes to bring them to a place where to stay, a terrible place, dirty and smelling and overcrowded. They get work there as well at a construction firm which doesn’t pay well, especially as money is deducted from their salary for the “rent” for the place they are in and because Juan is often not paid at all, just because being “only a child.” One day, a raid is done by the work-inspectorate of the country and father and son are caught without documents. They are brought to a centre where they are separated, as it would not be safe for Juan to stay with quite a few rather aggressive men. He is brought to a centre for children where he is asked where he comes from. As instructed, he doesn’t tell. After several months in the centre, his father does and a deportation order is issues by the authorities. Juan is asked if he would want to stay with his father, and if so, will be deported with him. Helplessly and hopelessly, Juan agrees.
Conclusion. Taking into consideration the different situations of children as mentioned above, it seems that, notwithstanding that some of them are armed and some are not, the remedies to their plights to enable them to overcome the disastrous situation they have been or still are in, are rather similar. What can be done and why measures in place do not work?
Legislation. There are quite enough international conventions, recommendations etc. available, such as the Convention on the Rights of the child, the African Charter on Child rights, the different conventions concerning the rights of women, of refugees, of migrant workers, of stateless people, the Geneva Conventions on war and armed conflicts, just to mention a few, in order to regulate the situation of children involved one way or the other in conflicts within their own countries. What is often missing seems to be the implementation of these conventions in national law. Member States to the different conventions are often unwilling or unable to implement what they have ratified. As a consequence, impunity of perpetrators will run counter to all efforts to achieve lasting peace or to prevent a new outbreak of hostilities. Furthermore, it will hamper reconciliation procedures, as victims will have to continue living side by side with those who have grossly violated their rights. Assistance to child victims and witnesses will not or not sufficiently be available.
Jurisprudence. The SCSL was the only international court with jurisdiction over children above the age of criminal responsibility in the host country, Sierra Leone, that amounts to 15 years of age. At the beginning of its work, the court considered that its mandate was to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone. It was evident that no child soldier, even one who had committed a huge number of incredibly brutal atrocities, could be considered to be one of those bearing the greatest responsibility. A further interesting argument in this regard was that it has also to be considered (from a strictly legal point of view) how the age of a child who has been involved in an eleven-year long war can be determined. How can one know when a child reached the age of 14 and criminal responsibility during that period of long lasting civil conflict in a country that rarely issues birth certificates? Furthermore, as it was established that almost all child soldiers were heavily drugged almost during each whole day, how to establish when such child was capable to discern the right from the wrong and to behave accordingly, especially as it was not them to agree to be drugged anyway! Therefore the SCSL concluded that child soldiers have to be dealt with as witnesses at court and victims as well but not as perpetrators, meaning that assistance should be given to them to be reintegrated again into society. When one considers now the children in migration situations, the question of age arises once more, as often personal documents are missing or have been destroyed. This question has to be always considered in the light of best interests of a child and the presumption of in doubt pro child. The question of drugs arises as well, as children on the move very often start to sell them (and to take them) when misused by organised crime and child molesters. Wherever children on the move are dealt with correctly in host countries, be it in centres, be it in families, having a curator ad litem to get them through administrative procedures, such problems can be avoided.
Social environment and prevention. For all children on the move, including the children of hate, the children of raped girl soldiers, education has to be provided in the host country, tailored to the knowledge of the given child, as well as work, if possible for him/her after learning the language of the respective host country. The gender problem has to be considered as well, as girls are more endangered as boys most of the time, be in their own environment – the girls taken by Boko Haram are not welcome in their communities as people are afraid that they would have turned into spies or suicide bombers – as well as in the host country. Girls without male protection are often seen as cheap sexual prey or they are used by their own people as income generating tool.
Thus, providing a safe environment for children on the move be it to allow them to stay on or to provide a safe return if this is the best solution in the best interest of the child, is paramount for their necessary protection.
Respect for children, for all children and their needs, is equally important as exclusion leads to no-future kids, to trying to belong somewhere, if nowhere else, to terrorist groups. Giving every child a chance to develop resilience is certainly the best option to prevent children from turning to the wrong people or to flee their country without real necessity.
Disarmament for child soldiers and for children returning from working for/with terrorists
There has always been assistance to demobilize and to disarm children fighting at whatever side. Almost no assistance was and is given for the most important issue, namely the psychological assistance to cope with the multiple trauma that children in such situations have to cope with. Often some tools are handed out when weapons were delivered and some small information is provided on how to deal with them, (mostly to no avail as the children would sell the tools immediately to get some money to live on) but the psychological side is almost all the time overlooked. A session of maybe one week is certainly not enough to give sound healing possibilities to a child that has experienced years of living in a terrible situation! Child sensitive programmes have to be developed.
Children “On the move”. Children on the move with their parents have the advantage not to be alone in a foreign environment, but the disadvantage to be sent to a (closed) centre when the parents are ordered to be there. Non-accompanied children can more easily find a place outside a centre but they will mostly ask for reunification with their family, something that is not always welcome in a host country. Experience has shown that if centres are adapted to the needs of migrants and their children or if centres are adapted solely for the needs of children, this situation might be helpful for at least some time, until it is clear what will happen with the children (and their families).
Legal assistance from the very start proves to be helpful as well. The most important way to assist children is to assist quickly and coherently. Time is not on the side of children!
Assistance. If governments consider assisting countries where refugees or migrants come from with large sums of money, they have to think about the high corruption level in most of those countries. Money will not reach those who need it. Development programs designed in a way that control over finances stays with the donors might be more appropriate. Concerning children, the best investment to be made in the host country as well as “at home” is to give them education and or vocational training to enable them to later on have the possibility for a meaningful life in their own country.
Why all these propositions, not new at all, tried out already with some modest success in warlike situations, do not work as they should for persons on the move?
There are mostly two reasons for it: one political and one financial.
It is difficult to explain to citizens of a host country that money should be spend on foreigners not really invited to come, if there is not enough money for them. It is furthermore not easy to explain that citizens have to cope with cultural norms that they do not understand and do not want to accept.
Thus, politicians trying not to become unpopular will use all legal means to see if migrants/refugees can be sent back to their countries. It is certainly legitimate to make a difference between migrants, asylum seekers and refugees, as their rights and duties differ, but it is in no way legitimate to make any difference if it comes to children!
According to the Convention of the Rights of the Child, ratified by all countries worldwide save one, all children, for whatever reason they are “on the move”, have the same rights as the children of the host country. They cannot be sent back, cannot be held in closed centres and have to be treated as all the other children there!
Renate Winter is president of the UN Committee of the Rights of the Child and of the Residual Special Court of Sierra Leone, and an expert on family law, juvenile justice systems, women’s justice issues and child labour. She is a founding member of the International Institute for the Rights of the Child (IDE) which is dedicated to the worldwide training of judicial personnel and dissemination of information on children’s rights. She is the former President of the International Association of Youth and Family Court Judges.
Winter is a contributor to the Draft Model Law on Juvenile Justice, the UN Manual on Juvenile Justice, and the Draft Model Law on Child Victims & Witness Protection.
From 1981 to 1996 Winter has been a judge at the Vienna Youth Court where she has undertaken projects to help rehabilitate juveniles with problems of drug addiction and mental disability. Winter has also worked on projects relating to youth and child soldiers for the United Nations, including in numerous African countries as well as in Latin America.
From 1996 to 2000, she was consultant for the UN Center for the International Crime Prevention (CICP) at the United Nations in Vienna advising government officials on the implementation of the Convention on the Rights of the Child in four continents (e.g. in the Balkans, in the Baltics, in Central European and Asian Countries, in the Maghreb, in East and West Africa and in Latin America.)
From 2000 to 2002, Winter was international judge with the United Nations Mission in Kosovo (UNMIK) at the Mitrovica Regional District Court and Justice at the Supreme Court of Kosovo as part of the United Nations Interim Civilian Administration. In 2002 she was appointed as judge to the Appeals Chamber of the Special Court for Sierra Leone by the UN Secretary-General. From 2008 to 2010 she was elected President of the Special Court.