INTRODUCTION

This book represents a, hopefully significant, step in clarifying an underresearched topic in the field of reparations. The right to reparation has been steadily gaining momentum and it is well rooted in the international law framework. Nonetheless, shift ing the attention from the inter-State to the individual dimension of reparations has triggered several questions and raised a large number of important issues. The abundance of armed conflicts worldwide and the emergence of new methods of warfare have resulted in high numbers of persons affected, individually or collectively, by violations of IHRL and IHL. Children are among those who suffer the most in connection wiThan armed conflict, be it international or internal. Recent global trends regarding the impact of armed conflict on children show that lately children have been affected ‘to a degree which is an affront to our common humanity’. 1004 Almost 20 years ago Ms Machel reported to the General Assembly that

Since then, despite the mechanisms set up by the UN and the efforts made by specialised NGOs and other local and international actors, very little has changed and atrocities committed against children show no sign of abating, although these violations are, at last, recognised as a stand-alone category that requires the adoption of specific measures for prevention and intervention. Armed conflicts, especially protracted ones, ‘have a significant impact on healThand well-being across almost all domains of children's lives, due to exposure to violence, pervasive poverty, ongoing insecurity, strained family relations, disrupted networks of social support, curtailed education and poor health’.

As properly noted in this scholarly work, in situations of armed conflict, children are not merely bystanders but targets and direct victims. In fact, children are disproportionally affected by war. It is against this background that Francesca Capone applied her research capacity by exploring a broad range of issues relating to reparations for child victims of armed conflict. This book follows the perception, already asserted in the Universal Declaration of Human Rights and affirmed in the United Nations Convention on the Rights of the Child, that childhood is entitled to special care and assistance, including legal protection. A special feature requiring full attention and also covered in this book is the intricate question of recruitment of children into armed forces and armed groups, raising issues of the victim-perpetrator dichotomy and the reintegration of child soldiers into national and local society.

A core element obvious from the title is the victim's right to remedies which includes – as spelled out in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law – equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, and access to relevant information concerning violations and reparation mechanisms. The Basic Principles and Guidelines have been playing, in the ten years since their adoption by the UN General Assembly, an important role in setting into motion a better understanding of the right to reparation and in providing guidance in this area, as evident in the increasing reference made to this document in the jurisprudence of judicial and quasi-judicial bodies such as those functioning in the Inter-American human rights protection system, the International Criminal Court and its Trust Fund for Victims. At the same time the law and practice of reparations faces intricate challenges requiring new and innovative responses. This applies in particular to means and methods of repairing harm suffered by juvenile victims in terms of their past, present and future life situations in their communities.

INTRODUCTION

The key principles that traditionally govern the right to reparation are spelled out in the judgment of the case concerning the Factory at Chorz o w, issued by the Permanent Court of International Justice (‘ PCIJ’) in 1928. According to the Court:

On that occasion the PCIJ clearly described the common approach to reparations in an inter-State dispute. Such approach has been reiterated several times and has been enshrined in the International Law Commission (‘ ILC’) Articles on Responsibility of States for Internationally Wrongful Acts (‘ Articles on State Responsibility’). These Articles explain that a State responsible for the commission of a wrongful act is under an obligation to cease the conduct and to offer appropriate assurances, normally given verbally, and guarantees of non-repetition, such as preventive measures to be taken to avoid repetition of the breach. The responsible State is also under an obligation to make reparation for the injury caused by the internationally wrongful act. The forms of reparations, identified in the Articles on State Responsibility and endorsed by the jurisprudence of the ICJ and its predecessor are restitution, compensation and satisfaction, either singly or in combination and, where appropriate, accompanied by interest. The evolution of the right to reparation, marked, inter alia, by the adoption of the Basic Principles and Guidelines, has led to the identification of other forms of reparation, including rehabilitation and guarantees of non-repetition. Unlike the Articles on State Responsibility, the UNBPG focuses on the right to reparation for victims (not States), meaning individuals or collectives who have suffered harm including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute violations of international law. Until quite recently, the existence of an individual's right to reparation was questioned, mainly due to the limited practice supporting the concrete exercise of this right.

INTRODUCTION

During its forty-eighThsession, the General Assembly adopted Resolution 48/157, entitled ‘Protection of Children Affected by Armed Conflicts’, in which it requested the Secretary-General to appoint an expert to undertake a comprehensive study wiThthe support of the Centre for Human Rights and UNICEF. The expert, Ms Gra ç a Machel, was asked to make recommendations in five areas: the participation of children in armed conflict; the reinforcement of preventive measures; the relevance and adequacy of existing standards; the measures required to improve the protection of children affected by armed conflict; and the actions needed to promote the physical and psychological recovery and social reintegration of children affected by armed conflict. The Machel' study underlined wiThdeep concern how ‘new’ war tactics had evolved, resulting in civilians, including children, increasingly becoming the targets of violence and the victims of atrocities. This trend continues as armed conflicts nowadays have an even more horrific impact on children, and on civilians generally. In today's wars, the strategies adopted by armed groups' seek to bring the battle more immediately, more systematically, and more massively to the core of the civilian population’, and into the lives of millions of children. As a result, the notion of armed conflict itself has become more blurred and less easily defined. The Stockholm International Peace Research Institute has stressed the fact that armed conflicts are moving towards ‘further fragmentation of violence’. According to this analysis, such trend has been accompanied by the diversification of armed groups and the further erosion of the boundaries between different forms of violence. Consequently much of this ‘fragmented’ violence is difficult to assess and categorise.

The alarming situation of children in armed conflict has become a thematic issue on the UN agenda aft er the submission of Machel's ground-breaking report. As a result more initiatives and resolutions have been adopted and implemented.

CHILDREN AND REPARATIONS: TOGETHER UNDER THE SPOTLIGHT

According to Tomuschat few would argue that persons suffering a grave breach of their human rights should not have a right to full reparation; even fewer would affirm that children should not be awarded adequate, prompt and effective reparations for the harm suffered, especially as a result of violations perpetrated during or in the aft ermaThof armed conflict, when children are particularly vulnerable and, thus, overexposed to victimisation. Since the approval, in 2005, by the UN General Assembly (‘ General Assembly’) of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law (‘ Basic Principles and Guidelines’ or ‘UNBPG’) much emphasis has been placed on the existence of individuals ‘reparation claims under international law. Moreover, thanks to the innovative character of the Basic Principles and Guidelines, collective and symbolic reparations have finally also been given proper consideration. Reparation has been accepted as a term wiTha well-established legal meaning, which refers boThto the obligation to repair and the right to claim and obtain redress. According to Redress, ‘reparation’ comprises ‘the wide range of measures that may be taken in response to an actual or threatened violation, including the substance of the relief as well as the procedure to attain it’. Under international law the forms of reparation identified are restitution, compensation and satisfaction. Within the human rights framework rehabilitation and guarantees of non-repetition are also included among the kinds of reparation available for the victims.

Thus far international institutions, such as the Inter-American Court of Human Rights (‘ IACtHR’), have mostly focused on reparations awarded in the aft ermaThof gross human rights violations. The role played by regional human rights bodies, in particular by the IACtHR, has been essential for the development of an innovative and forward-looking approach to reparation, especially in the aft ermaThof mass-scale violations of human rights.

INTRODUCTION

Quasi-judicial as well as judicial mechanisms, boThat the regional and at the international level, consider reparations as a strictly legal concept subject to legal rules and procedures. Consequently, victims are necessarily identified wiThthose who have suffered direct or indirect harm as a result of acts or omissions that amount to a violation of international law. In non-judicial settings, however, the identification of the beneficiaries of reparative measures is much more flexible and in some instances it may even coincide wiThthe affected population as a whole. There are a number of non-judicial mechanisms which have dealt wiThthe issue of reparations for child victims of armed conflict. These are TCs, national reparations programmes, the ICC, TFV, and DDR processes. Such mechanisms pursue the twofold aim of providing victims wiThwide-ranging redress measures and fostering peace, security and reconciliation ‘through a heartfelt and public commitment to human rights’. In many cases national reparations programmes are contingent on, or stem from, the work of TCs. As noted by de Greiff, ‘there seems to be a trend towards establishing TCs in post-conflict societies and societies in transition and entrusting them wiThmaking recommendations concerning reparations’. However, not all national reparations programmes rely on the findings of a TC, not all post-conflict countries have established the same mechanisms to come to terms wiThtheir past and not all mechanisms have equally taken into account child victims.

TRUThCOMMISSIONS

According to Teitel a TC can be described as ‘an official body, often created by a national government, to investigate, document, and report upon human rights abuses within a country over a specified period of time’. The general aim of a TC is to provide a comprehensive record and analysis of the violations committed during an armed conflict or a military dictatorship. From 1974 to 2007 at least 32 TCs were established in 28 countries worldwide and, according to Heyner, by 2011 their number had increased to 40.

INTRODUCTION: OVERVIEW OF THE DIFFERENT FORMS OF REPARATION FOR CHILD VICTIMS

Reparations can take different forms as explained in the UNBPG. Whereas within the traditional international law framework the options envisaged are solely restitution, compensation and satisfaction, reparations for individuals or groups who have suffered from IHRL and IHL violations include also rehabilitation and guarantees of non-repetition. In addition to the specific kinds of reparation that can be awarded it is also important to discuss the scope and breadThof the measures available and their potential impact on child victims ‘current and future situation. As stressed by the Liberian TRC, ‘children expect to receive reparations as an acknowledgement of their suffering, a means to make up for lost out opportunities and as concrete assistance for their rebuilding of their shattered lives’. In the case of former child soldiers, the expectations placed on reparations are even more demanding:

On the one hand it is desirable for reparations to broaden their scope in order to better address victims ‘needs; however, on the other hand it is crucial to bear in mind that several factors come in to play when redress measures are designed and implemented. Furthermore, it is important to distinguish between reparations and other forms of aid and assistance to which child victims may also be entitled. Whereas reparations have a specific legal meaning and infer the commission of a violation, the existence of a causal link, and the recognition/ personification of the victim, assistance measures can be simply put in place to fill a gap in the States ‘capability of guaranteeing access to basic rights.