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Chapter 4 introduces the case study of Rwanda, which offers a paradigmatic example of what happens when thousands of minors are accused of, and pursued for, committing acts of atrocity, in a post-conflict state that has been thoroughly decimated. The chapter first provides a synopsis of the civil war and genocide, describing in particular children’s involvement as perpetrators. It then turns to post-genocide Rwanda to explore the impact of the genocide on the social fabric (in particular the perception of the child and society’s demand for justice and accountability) and the judicial system, and outlines the involvement of international and domestic actors in the reconstruction process. Finally, it briefly examines the position of the child offender under Rwandan law, noting also Rwanda’s international obligations at the time covered by the book. In addition to setting the scene, the chapter draws out the challenges generated primarily by the genocide (recognising that some issues were latent) so as to contextualise both Rwanda’s responses to child perpetrators as well as the approach adopted by international actors, in particular UNICEF.
Over 4,500 children were detained in Rwanda in 1998, most accused of participating in the genocide. This chapter introduces the issue of children accused of committing genocidal acts, but also more broadly, children involved in atrocities (including terrorist attacks). It explains the rationale for the book, noting that states have discretion to prosecute children but that there are various minimum standards, contained primarily in the Convention on the Rights of the Child, that must be upheld. These standards are binding in respect of all states that have ratified the treaty, yet post-conflict states often face significant reconstruction challenges. What, then, are the implications where states decide to prosecute minors for atrocity crimes? The chapter also introduces the role that international actors can play in enhancing implementation of, and compliance with, international standards, noting in particular UNICEF’s role as the lead UN agency for children in conflict with the law. The chapter notes the contribution of the book to existing scholarship and outlines the multidisciplinary approach, assumptions and methodology of the study, which includes semi-structured interviews and archival research, institutional and doctrinal analysis, and grounded theory and process tracing approaches. It also discusses the limitations and challenges involved in empirical research.
Individuals who have committed atrocities may be tried by national courts for international crimes or for ordinary crimes (the underlying offence). Children who come into conflict with the law are accorded special protection under international human rights law which goes beyond the protection provided to adults. Chapter 2 provides a detailed review of international juvenile justice standards, in particular those contained in the CRC, pertaining to children who come into conflict with the law generally. These include minimum procedural guarantees, restrictions on sanctions, and the requirement on states to establish a minimum age of criminal responsibility, put in place juvenile-specific laws, procedures and institutions, and act in the best interests of the child. The focus then shifts to child perpetrators of international crimes. The chapter considers briefly whether children can be prosecuted for international crimes, analysing international criminal law and practice and the treaties that require states to prevent and punish core international crimes. After establishing that children can be prosecuted for international crimes, the chapter argues that a child who is accused of committing genocide, or any other international crime, is entitled to the same rights and protections as a child who has committed an ordinary crime.
Chapter 7 probes deeper into policy and advocacy approaches, drawing out the strategies and techniques utilised by UNICEF Rwanda when seeking to enhance Rwanda’s implementation of, and compliance with, international standards. Drawing on themes that emerged from the empirical data, the strategies and techniques can broadly be categorised as capacity building; sensitising the community; using the existing domestic legal framework; the use of legal and non-legal discourse; capitalising on political will and developing relationships; and offering incentives but making compromises. Drawing on international law, international relations and anthropology to theorise the empirical findings, the chapter argues that UNICEF Rwanda was very flexible and pragmatic in its approach, adopting a range of strategies and techniques that were considered necessary and appropriate in the given context, and which can broadly be categorised as collaborative and constructive rather than coercive.
Following the genocide, the Rwandan government adopted a policy that sought to hold accountable all those suspected of participating in the genocide, including minors. Chapter 5 provides a detailed and comprehensive account of how child perpetrators were dealt with in Rwanda in law, policy and practice. It examines how children were held accountable for participating in the genocide, considering whether they were given differential treatment on grounds of their age (and if so, what the relevant age thresholds were). It considers broadly whether Rwanda complied with international juvenile justice standards, including on the minimum age of criminal responsibility, sanctions, juvenile-specific institutions and procedural guarantees. These issues are explored in the context of arrests and detentions, criminal justice mechanisms (both formal courts and gacaca jurisdictions) and administrative measures taken to address genocidal acts.
The responsibility for implementing and complying with international standards rests firmly with states. However, post-conflict states often lack resources and may also face significant socio-political challenges. Chapter 3 explores whether international child rights standards make any allowances for the context in which they are to be implemented, reviewing the ‘escape’ route of derogations, considering whether the economic, social and cultural context may be taken into account, and addressing textual flexibility. It also expounds factors, including resources and public opinion, that might affect the operationalisation of juvenile justice standards in particular. The state does not, however, operate in a vacuum. There is a range of international mechanisms that promote implementation of, and compliance with, human rights. This chapter reviews these mechanisms as they relate to children’s rights, examining in particular the Committee on the Rights of the Child established by the CRC to monitor state compliance with the treaty, before focusing in some detail on UNICEF. The chapter provides an overview of UNICEF’s institutional nature, its relationship with the CRC and its stance on juvenile justice, all of which are key to understanding UNICEF’s involvement in Rwanda and its approach to child génocidaires.
Chapter 6 explores the approach of international actors to child génocidaires and to the Rwandan government’s legal and policy responses to such children. It describes briefly the approach of UN bodies (both non-operational and those with a field presence in Rwanda) and international NGOs. It then details UNICEF Rwanda’s involvement with child génocidaires, examining how it became involved with the issue and providing an overview of its activities. It draws upon specific issues to exemplify how UNICEF Rwanda interpreted and applied international standards in the Rwandan context and illustrates the contention within UNICEF, and the friction between UNICEF Rwanda and other actors over how best to implement the CRC, particularly as regards institutionalisation. It finds that UNICEF Rwanda interpreted the provisions of the CRC (and related instruments) in a non-restrictive way to fit the Rwandan context, relying in particular on the best interests of the child principle, and that this included working progressively towards implementation and compliance and prioritising some rights over others.
Chapter 8 evaluates in detail UNICEF Rwanda’s approach, exploring risks, criticisms and limitations: did interpreting the standards in a context-specific way (which included prioritisation and progressively working towards implementation and compliance) weaken the normative content of the standards? Did UNICEF Rwanda’s broadly collaborative and constructive (rather than coercive) approach risk usurpation, co-option and compromised independence? Responding to these challenges, the chapter finds that UNICEF Rwanda, whilst pragmatic, remained true to child rights principles and retained its independence. The chapter then presents examples of where the empirical data (using process tracing) suggest that UNICEF Rwanda exerted a positive influence on Rwanda’s implementation of, or compliance with, international standards. It also analyses the factors that influenced UNICEF Rwanda (the Rwandan context itself, the nature of the CRC and UNICEF’s institutional particularities) so as to situate its approach in the broader context. The chapter concludes that UNICEF Rwanda’s pragmatic yet principled approach was overall appropriate and achieved some positive results, although there were shortcomings, and that this approach may be an appropriate means of operationalising international juvenile justice standards (or human rights standards more generally) in a post-conflict society.
Chapter 9 synthesises the main findings of the study and gestures towards the implications of the research on a broader level as well as questions raised. It draws insights for advances in theories on human rights promotion in post-conflict societies, making the case for principled pragmatism: an approach predicated on contextual interpretation and application of standards whilst remaining true to human rights principles, and on the use of constructive and collaborative strategies and techniques in policy development and advocacy. The chapter presents lessons that can be learned from Rwanda: how children’s involvement in violent crimes can dramatically influence the perception of childhood, a factor which should be taken into account when seeking to promote child rights at the community level; whether the prosecution of children was preferable to non-prosecution; whether UNICEF was right to become involved with the issue of child perpetrators in Rwanda; and what approaches to child perpetrators UNICEF should be promoting, briefly exploring alternative modalities of accountability, including truth-seeking and indigenous justice and reconciliation mechanisms. Whilst affirming the role of UNICEF, it concludes by emphasising that ultimately it is the state that decides on accountability and that is responsible for implementation of, and compliance with, international standards.