Armed conflict inflicts a heavy burden of suffering on children, who are defined under international law as people under 18 years of age. Typically, children comprise approximately half the population of war-torn countries, the physical infrastructure and social fabric of which are ravaged by conflict. The effects on children and their societies are likely to be systemic and long-lasting.

The horrors of war are most conspicuous not in statistics but in the voices of young people. Speaking in November 2009 about the Israeli military attacks a year earlier, a 14-year-old Palestinian woman from Gaza told me “I was so frightened and overwhelmed I just wished I was dead and could die right at that moment…”. It is well documented that such experiences leave in their wake psychological problems such as depression, post-traumatic stress disorder (PTSD), anxiety, and other mental health problems. These problems are compounded by the structural violence – particularly the deep poverty – that robs people of their dignity, makes it difficult to meet basic needs and imposes untold suffering.

The promotion of the psychosocial well-being of children who live in zones of armed conflict and in post-conflict settings ought to be a high priority for the international humanitarian community. Damage to rising generations undermines social capital, impedes development and productivity as measured in Disability Adjusted Life Years and constitutes an assault on the human spirit. Unfortunately, humanitarian efforts to enable children's psychosocial well-being in war zones have themselves been problematic.

In many war-torn countries, both the conceptual frameworks that guide intervention and the interventions themselves have been divided into two poles. At one pole have been specialised, clinical approaches that emphasise the importance of clinical problems and of intervention by professionals such as psychiatrists and trauma counsellors.

INTRODUCTION

From 1991 to 2002, Sierra Leone endured a brutal civil war which left approximately 50,000 people dead, 20,000 brutally mutilated and three quarters of the country's population displaced. The marginalisation and political exclusion of youth were considered to be two major contributing factors to the war. Many young people were forcibly abducted by the Revolutionary United Front (RUF), the rebel group central to the conflict, whereas others joined willingly. Youth were also involved in the ranks of the civilian defence forces and factions of the Sierra Leone army. Although official estimates indicate that some 5,000 to 10,000 children were involved in the different warring factions, other sources report estimates as high as 48,000.This range in estimates is due in part to difficulties in tracking children involved in combat given the continual displacement of persons, lack of infrastructure, and the fact that combat groups kept no records. The National Committee for Disarmament, Demobilization and Reintegration (NCDDR) estimates that nearly 7,000 children were formally demobilised. At the conclusion of the war, many youth and child combatants underwent a formal disarmament, demobilisation and reintegration (DDR) process, where various international and local non-governmental organisations (NGOs) provided psychosocial services including family reunification, counselling, education and job skills training. Many other youth and child combatants self-reintegrated without formal services, and are therefore not captured by DDR statistics.

Today, years after the war's conclusion, many of the issues which spurred the conflict in Sierra Leone remain unaddressed or unresolved. The country ranks at the bottom of the Human Development Index with up to 70 percent of youth classified as underemployed or unemployed. Evidence has suggested that waraffected children and youth are at increased risk of mental health problems, including depression, post-traumatic stress disorder, anxiety and aggression.

INTRODUCTION

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

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

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

CASUAL ASSUMPTIONS AND STANDARD PRESCRIPTIONS

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

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

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

INTRODUCTION

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

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

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

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

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

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

WAR-AFFECTED CHILDREN AND INTERNATIONAL PSYCHOSOCIAL PROGRAMMES

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

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

INTRODUCTION

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

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

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

INTRODUCTION

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

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

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

FORMALISM AND INSTRUMENTALISM

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

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

RESEARCH QUESTION AND METHODOLOGY

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

INTRODUCTION

Throughout history, children have suffered disproportionately in armed conflicts. However, recent trends towards civil war and internal conflict rather than armed conflict between organised state armed forces seem to have put the civilian population in increasingly dire situations. In recent decades issues such as the flow of small arms, the proliferation of armed groups and the use of indiscriminate weapons have all led to increased vulnerability for children. Obviously, modern communications technology has also increased global awareness regarding issues affecting children in armed conflict.

In considering the needs for recovery and reintegration of war-affected children, there are distinct groups and needs that can be identified: the larger group of war-affected children in general, and those with specific protection concerns. When researching the impact of today's conflicts on children, a number of issues come up. The first very visible and tangible impact is that on infrastructure and services that provide for the basic necessities to ensure the right to life and development for children.This includes access to water, food, health and education. But children are also affected emotionally and sometimes psychologically, which needs to be considered not only in the immediate response to humanitarian crises but also in their long-term development. Specific protection issues that may have arisen due to the conflict include family separation, child recruitment, trafficking, abduction and gender-based violence, to mention but a few. Some of these are international crimes, where children are victims and also witnesses and perpetrators of crimes. It is in relation to these issues that transitional justice questions become particularly relevant, as does the extent to which current normative frameworks have been able to grapple with them.

The purpose of this chapter is to analyse the international legal framework applicable to recovery and reintegration for war-affected children, and to identify some of the gaps and current issues in this regard. I will be looking at a postconflict scenario, hence mostly considering situations where international humanitarian law has ceased to apply and as such the Convention on the Rights of the Child (CRC) and its Optional Protocol on the Involvement of Children in Armed Conflict (OP-CAAC) are the key reference documents.

RULE OF LAW AFTER WAR AND CRISIS

This book concerns the norms, ideologies and methods of rule of law reform in war-torn and crisis societies. The main objective is to describe and analyse the effects of international rule of law assistance on legal, judicial and administrative systems. Rule of law reform is the vehicle through which international law and national domestic laws, practices, and institutions variously intersect, collide, interact and harmonise. International interventions play an important part in diff using norms and institutions and bring to the fore a new object of study namely transitional legal orders in war-torn and crisis societies.

Rule of law has emerged as a constituent part of international crisis management. From Haiti to Egypt, from Afghanistan to Liberia, international actors now speak of the fundamental need to strengthen the rule of law for the realisation of a successful transition from war to peace. In order to achieve the twin objectives of a legal system and a political culture embedded in rule of law principles, international actors often assume a direct political and administrative state-building responsibility. Failure to establish the rule of law in a war-torn or crisis society may constitute a serious threat to both national and international security. Sustained instability contributes to organised crime, corruption, trafficking, environmental degradation and weapons proliferation. De facto ‘statelessness’ and proliferating poverty between them aff ord safe havens for the propagation of criminal and terrorist networks.

It should be made clear from the start that no assistance provider would expect that laws and legal institutions subscribing to rule of law principles would be capable of solving such problems alone. However, the faith placed in the rule of law, a concept that Aristotle spoke of as “a government of laws, not men”, and which Cicero realised bound humans “so that we might be free”, is a notion that is sometimes astoundingly devoid of realism. The concept of the rule of law (as presented and applied by international organisations and national donors) renders unto itself an excessively large claim.

Today it is possible to refer to a ‘rule of law consensus’ among international actors in relation to war-torn and crisis societies.

INTRODUCTION AND BACKGROUND

While many children are involved in wars today, it is equally important to account for those children who are involved in organised armed violence. In doing so we can understand the true nature of the problem of how armed children and young people are affected socially, economically and politically in the region as a whole.This chapter deals with girls and young women who are involved in armed conflicts and organized armed violence in Latin America. We will adopt a sociology of law perspective and will look at the interrelation between gender, age, class and ethnicity. Some insights are drawn from the feminist concept of intersectionality (Yuval Davis) and the concept of gender advanced by Ramazanoglu and Holland, while other ideas come from feminist child law (Bridgeman and Monk) and the dilemma of the girl child in international human rights law. Some of the questions being addressed from a gender perspective include: Why do girls join the armed forces and become members of armed opposition groups in the first place, and what roles do they play as members? And on a more general level, are there any differences between the processes of recruitment into armed conflict and juvenile gangs, which are involved in organised armed violence? Our study is based on a number of sources, including reports from international organisations (United Nations, UNICEF and UNIFEM, as well as the OAS and UNESCO) and from international and national NGOs (particularly Human Rights Watch, the Coalition to Stop the Use of Child Soldiers, Save the Children and Amnesty International).