States are increasingly arresting and detaining children associated with armed groups, be it because they are perceived as a threat to national security or because they have allegedly participated in hostilities. Children who are placed in detention are sometimes kept in conditions which do not meet the minimum standards set out in various international legal instruments on juvenile justice.
Administrative detention of children
In some situations, States place children in administrative detention, rather than charging them with a criminal offence and bringing them before a court. These children are often detained for long periods of time without being granted legal safeguards. When deprived of their liberty, children are particularly vulnerable to abuses.
Children before national courts or military tribunals
In other situations, States prosecute children before national courts or military tribunals, which do not generally apply juvenile justice standards. As a result, these children are frequently tried without legal assistance, without the presence of their parents and without a clear understanding of the charges brought against them.
Children as victims, not perpetrators
Given the forced nature of their association with armed groups, children should be treated primarily as victims, not as perpetrators. Emphasis should be placed on prosecuting adult recruiters and commanders based on the concept of command responsibility. The detention and prosecution of children for crimes arising from their active participation in hostilities should at all times be a measure of last resort.
Diversion from the judicial system
Children must be made to understand the consequences of their actions, and victims of their violence must feel that justice has been done. Nevertheless, diversion away from the judicial system is more suitable for children and society at large. Alternatives that promote the reintegration of a child into his or her community include truth-telling, restorative justice measures and traditional healing ceremonies.
Children and Justice
Until recently, violations against children during armed conflict have gone largely unpunished and perpetrators of such crimes have not been held accountable. Yet, over the past 20 years, the international community has set up a number of new accountability mechanisms with the aim of ending impunity for violations against children. These mechanisms essentially take two forms:
- Judicial courts or tribunals including the Special Court for Sierra Leone, the International Criminal Tribunal for Rwanda and the International Criminal Court;
- More informal non-judicial truth and reconciliation commissions such as in Sierra Leone and Liberia.
Participation of children in justice processes
With the establishment of these justice systems, perpetrators are now increasingly being held accountable for their acts. In this context, children are also increasingly participating in these justice processes as victims and witnesses. A number of innovative ideas have been developed to protect the rights and best interests of children while ensuring that justice is done, including protective measures, alternative forms of participation and child-specific reparations.
Protection of children in judicial proceedings
The difficulty for victims to come forward in judicial proceedings and face their memories and their assailants is often underestimated. If they speak, there could be reprisals on them or their families. If they testify, they will have to be able to undergo a vigorous cross-examination that often results in re-living horrific events. Balancing participation and the protection of children during court proceedings is of great importance. Closed sessions, voice and image distortion, screens between the witness and the accused, as well as pre- and post-statement counselling are all useful methods to protect child witnesses from possible consequences when they testify.
Reparations for children
For children, justice includes far more than punishing a perpetrator. Equally important are the restoration of their rights and an element of reparation to address their loss of childhood, family, education, and livelihood. Courts should include reparations in their judgment and sentencing hearings, providing victims with assistance in the form of physical rehabilitation, education, and psycho-social support.
For more information, read the Working Paper Children and Justice during and in the Aftermath of Armed Conflict.