The Protection of Children in Peacemaking and Peacekeeping Processes

Ilene Cohn[*]

I. BACKGROUND AND INTRODUCTION

Despite increased international attention to and awareness of children’s rights, children are largely overlooked in the peacemaking and peacekeeping process. Rules of engagement for peacekeepers disregard children, and reconstruction and reconciliation programs that emerge from negotiations ignore the differential impact on and particular needs of children. The effect is to marginalize persistent problems like the rehabilitation and reintegration of child soldiers and, more broadly, to miss the opportunity to address widespread systemic problems common to war-torn societies.

Children suffer disproportionately in war, and they benefit disproportionately less in peace. The international community has recognized the deficiency of the international bill of rights in addressing specific classes of injustice or the status of entire groups of persons, and it has acknowledged the need for programmatic tools to address the special needs of vulnerable communities. The United Nations Convention on the Rights of the Child (CRC), to which I refer throughout as a guidepost for children-oriented initiatives, is the most widely ratified human rights treaty and obliges States to take positive measures to ensure the protection of children’s rights both in peace and in war.[1] A similar approach is both warranted and reasonable in peace proc-

esses. Peacemakers must buffer children from the potentially negative consequences of the peace process while respecting their evolving capacities and their right to guided participation.[2]

In addition to the CRC, international humanitarian law, which has long provided special protection for vulnerable children, reflects these concerns.[3] Many other declarations, resolutions, and regional instruments, applicable in distinct circumstances and binding to different degrees on different actors, also urge greater protection for children in war.[4] The law relevant to children’s rights may vary depending on circumstances but a child’s moral claim to special care does not.

The general thrust behind national and international action on behalf of children is the moral and legal recognition of their emotional, physical and psychological vulnerability, their need for special care, and recognition of the obligation to respect and ensure respect for their rights. These concerns reflect the value that society places on childhood for its own sake, not as a training ground for adulthood. Simultaneously, we must recognize that events in childhood will affect the individual as an adult and consequently, society as a whole.

Today, peacemaking does more than end war; it lays the normative ground for transition and sets the agenda for peace time. Peace processes have sometimes performed as constitutional conferences in which key actors strive to define the political, social and economic framework for a new social and legal order. The international community, states and institutions, local civil society, and international nongovernmental organizations (NGOs) come together in peace processes to determine how post-conflict society can reincorporate warriors to civilian life, facilitate resettlement of the displaced and return of refugees, advance a national agenda reconciling opposing factions and social or ethnic groups, allocate resources for development, ensure equal access to justice, and remedy past injustices.

Peacemakers do not adequately address children’s needs for several reasons: lack of awareness of the nature and extent of the impact of conflict on children, ineffective lobbying by child welfare advocates, and lack of access to information on child-conscious policies and programs that should be adapted or avoided in light of experiences in other contexts. Some child welfare workers, human rights advocates, and policy-makers reject advocating on behalf of specific populations (e.g., children) or specific groups of children (e.g., child soldiers) on moral, practical, and strategic grounds. Implicit in this argument is the unconvincing assumption that programs that redress general systemic wrongs will eventually benefit youth along with the population-at-large. In actuality, children are often marginalized while more aggressive groups ensure their own representation. Peace processes to date demonstrate that, absent specific references to children during peace processes, post-conflict programs and resources are not allocated to reflect children’s needs. On the other hand, we have at least one clear example in which a focus on certain child rights issues during a transition period has proven a useful tool in moving society toward higher levels of protection for all groups.[5]

This study examines the protection of children during peacemaking and peacekeeping, and the regional and multilateral institutions that now play a role in palliating conflicts around the world. It identifies children’s substantive needs, considers efforts made in some peace processes and proposes alternatives. The focus is on what might be done to better ensure that children’s rights are considered from the moment mediation efforts begin until the peace-building agenda is fully hammered out. Although many of the issues, such as human rights and peacekeeping, the potential use of regional peacekeepers, and truth, justice and reconciliation, have produced a great deal of writing and debate, no one has yet examined the conflict resolution period from a children’s rights perspective.

Part II will describe the nature of war’s impact on children, point out patterns common to children across conflict-types and cultures, and stress the psychosocial implications of war-related experiences. Part III seeks to identify the ways in which the modern peace process is not only a forum for determining how material resources, technical assistance, and expertise will be allocated in the post-conflict era and beyond, but is also a context in which the needs of certain populations can be addressed. I identify each of the key actors with the potential for advancing child well-being and their own constraints and concerns.

Part IV reviews the commonly occurring products and by-products of peace processes, their potential impact on children, and ways in which peacemakers can conceptualize and address child rights at each stage.

Part V summarizes a number of recommendations for all key actors. In this Part, I urge recognition by both children’s rights advocates and peacemakers of the ways in which their agendas overlap. I suggest a commitment to maximizing the opportunities afforded by peace processes to secure a place for children on the post-conflict agenda.

II. THE DIFFERENTIAL IMPACT OF WAR ON CHILDREN

War affects children differently depending on the region and nature of the conflict.[6] Any one child’s experience might include direct participation in, witnessing of, or victimization during hostilities; displacement; separation from or loss of loved ones; physical injury; restricted freedoms of movement, expression or association. Types of weapons, methods of recruitment, economic insecurity, exposure to chronic violence, the influence of ideology, politics, religion, peer groups and family, a child’s developmental processes and her subjective appraisal of the causes and meanings of events and of her own abilities to cope, all play a role in exacerbating or mitigating war’s impact.

The experience of children in war varies widely. Land mines remain a particular danger in Afghanistan, Cambodia, and Angola but not in Guatemala. While forced recruitment of children was not a salient concern in the former Yugoslavia, it most certainly was in Mozambique and Liberia and is today in Sierra Leone and Uganda.[7] Ideological commitment and political activity allegedly play an important role in buffering Palestinian children from some deleterious effects of the violence in the Israeli Occupied Territories[8] and the

spirit of jihad armed Afghan children spiritually and emotionally for battle with Soviet-backed government troops;[9] but this was not the case in Mozambique or in Uganda today.[10]

Treatment of children also varies widely. Sectors of some societies, in Lebanon or the former Yugoslavia for example, managed to continue their children’s education and to retain a certain level of family functioning even under siege; the continuity may do much to mitigate war’s negative impact and to bolster resiliency.[11] Children in other places will never have had access to a pre-war educational infrastructure or will suffer the indirect effects of war’s destruction of the existing health, education and welfare infrastructure.[12] Unaccompanied children may scarcely exist in regions where extended families can absorb them, but others will become refugees, or internally displaced. Some young children will be forced to become heads of large households after parents have been killed.

How wars are brought to a close can also have varying implications for children. A negotiated partial solution in Bosnia-Herzegovina that leaves many entrenched in hostile environments will have a different impact than a negotiated solution in El Salvador, where post-conflict governmental reform is meant to benefit all citizens and the peace agreements can serve a unifying function. Little data exists on the psychosocial impact of peace processes on youth, but one tentative effort by Palestinian psychologists found that “the peace treaty signed between Israel and the PLO [on September 13, 1993] positively influenced Palestinian children’s well-being: [t]hey showed less neuroticism after the peace treaty than before. Those who welcomed the peace treaty by participating in the celebrations suffered less from neuroticism and enjoyed better self-esteem than those who did not.”[13]

Despite the varied consequences of specific wars for children, patterns emerge in the experience of children that are distinct from those of adults. The explanation for war’s differential impact on children and adults is to be found in the very reasons children require greater protection than adults. Age, physical stature, and developmental factors limit children’s and adolescents’ capacity to adapt or to respond to war crises.[14] “A mine explosion is

likely to cause greater damage to the body of a child than to that of an adult”[15] and maimed child survivors require extended medical treatment and psychological support. Displacement is stressful in general, but for a child, separation from family is devastating. A child’s reactions to war often reflects those of a parent or caretaker; a child whose parent can provide physical closeness, reassurance and an opportunity to process the experience will cope better than one whose caregiver is anxious, fearful, and resists a child’s attempts at questioning or discussion.[16] A child’s moral intelligence, more so than an adult’s, reflects his war-time experiences and the way in which he is able to make sense of the suffering.

Numerous studies and papers describe the wide-ranging impact of war on children and indicate the psychosocial consequences of exposure to chronic violence.[17] Research on children living in war-torn areas “point[s] to numerous domains of cognitive, social, emotional, and psychophysiological functioning that can be severely affected by exposure to violence, including depression, withdrawal, fear, anxiety, affect disregulation, aggression, dissociative reactions, and intrusive thoughts.”[18] There is little evidence to support the view that “children either are resilient in the face of adversity or are too naïve to fully appreciate events that trouble adults.”[19]

III. THE POTENTIAL OF THE PEACE PROCESS

A. The Unique Potential of the Peace Process

Even though peace processes are the defining opportunities for long-term programs and international assistance in the aftermath of armed conflict, it remains standard practice to ignore war’s impact on youth once the peacemaking stage is reached. Children’s rights advocates must exploit those singular characteristics of peace processes that can serve the protection of children:

• Peace processes are the only opportunity to ensure that the distinctive situation of child soldiers is addressed during demobilization and reintegration;

• Peacemaking and peacekeeping processes offer unique possibilities for raising standards, expanding their scope and ensuring compliance. During the peacemaking process, the application of international humanitarian and human rights norms to non-state actors and the international verification of compliance with negotiated agreements can serve as special backdrops for ending persistent rights abuses and generating confidence in the peace process;

• International peace talk moderators or negotiators confer a coveted international political legitimacy on the parties,[20] and can use the resulting leverage to hold the parties to higher standards of conduct than might otherwise have been possible;

• A special constitution of power exists during the peace process that can be utilized to exact precise commitments from all parties. Once election results favor a particular party and guerrilla factions become civilians organized as political parties, the dramatic shift in bargaining power can make it difficult to negotiate new agreements;

• In the transition and post-conflict setting, most funding, support and attention of international agencies is directed to the issues agreed upon in the peace negotiations; a powerful opportunity arises here to make children’s issues a priority.[21]

B. Key Actors

Children’s rights advocates include domestic agencies with single-issue agendas, international actors with specific mandates, or international bodies or agencies like the U.N. Committee on the Rights of the Child or the International Save the Children Alliance.[22] These actors could effectively join

forces with representatives of civil society with overlapping agendas, such as criminal justice reformers or agencies addressing family reunification.

Children’s rights advocates must acquire the skills necessary to get their concerns for children in war on political, humanitarian, and economic agendas. Lobbying efforts must go beyond traditional, explicitly child-oriented issues. The case of Argentina’s Grandmothers of the Plaza de Mayo illustrates the role domestic child rights organizations can play in the transition to peace and democracy. The work of the Grandmothers also illustrates that advocacy focused on specific types of abuse can shape domestic and international human rights assessments that precipitate national reform.[23] Advocates must anticipate the constraints on peacemakers’ capacities to incorporate a child-conscious approach to peacemaking and peacekeeping and should help to steer them around these obstacles.

Other peacemakers well-equipped to ensure that children are on the peacemaking agenda include representatives of fighting factions, international or national moderators, and representatives of countries “friendly” to the peace process.[24] Other influential actors include bilateral and international donors or lenders approached to fund peace-building programs, and the media. These actors have the capacity to narrow the gap that war typically opens between children’s needs and the protection routinely available to them. Full implementation of children’s rights requires that all actors involved in the transition to peace acknowledge the impact of their decisions on children and proactively address children’s interests.

International bodies such as UNICEF could more actively ensure that peacemaking and peacekeeping actions contemplate the needs of children through the Department of Humanitarian Affairs/Department of Political Affairs/Department of Peacekeeping Operations framework for coordination

and by monitoring Security Council meetings.[25] The U.N. Special Representative on Children and Armed Conflict has challenged the Security Council to deliberate on child soldiers and “what, if anything, can be done to keep children away from combat.”[26]

The World Bank, the European Union, USAID and other bilateral development agencies increasingly acknowledge that short and long term gains can be anticipated from the provision of social and economic support to childfer a wide range of lessons for child advocates. Despite differences, these three cases illustrate that peacemakers too often overlook child rights and needs during peace processes.

1. The Peace Process in El Salvador

In El Salvador throughout the 1980s,

[p]olitical “death squad” killings, disappearances, torture, and bombing of civilian neighborhoods by the security forces, augmented by targeted assassinations by the FMLN, resulted in some 75,000 deaths. An additional 1.2 million peasants, out of a population of 6 million, were uprooted from their homes. The country’s institutions—including the police and the judiciary—were thoroughly politicized and discredited.[27]

In late 1989, the U.N. undertook to mediate an end to the decade-long civil war between the U.S.-backed government of El Salvador and the FMLN. The two-year negotiation process produced a complex set of agreements regulating the conduct of the parties and reforming the normative and institutional framework of Salvadoran society.[28] A final peace accord was signed on January 16, 1992.[29]

From July 26, 1991 to June 30, 1997, the U.N. provided the international verification of all substantive agreements.[30] The Secretary-General’s final report deems the Salvadoran peace process one of the most successful in which the U.N. has participated and sums up the levels of compliance with commitments on matters ranging from respect for human rights and humanitarian law, reparations programs, agrarian, electoral and justice reform, to the demobilization and reintegration of armed forces and FMLN troops.[31] In spite of a number of short-comings,[32] the process has generated, “slowly but surely,” the grounds for the gradual consolidation of peace in the country.[33] Though the confluence of circumstances so conducive and perhaps essential to a successful peace process are “unlikely to be repeated elsewhere,”[34] there are lessons to be learned from the way key actors in the process used their leverage and exploited opportunities presented within the process to advance and institutionalize greater respect for human rights.

2. The Peace Process in Guatemala

Latin America’s longest running civil war ended with the signing of the Firm and Lasting Peace Agreement between the Guatemalan government and the URNG on December 29, 1996.[35] This internal conflict began with the CIA-backed overthrow of the democratically elected Arbenz government in 1954 and in the early 1980s, spiraled into the slaughter of an estimated 150,000 civilians, the internal displacement of about 1 million, and an exodus of some 50,000 persons to Mexico.[36] Responsibility for this devastation,

targeted predominantly at civilians of Mayan ethnic origin, lies almost exclusively with the Guatemalan armed forces and allied paramilitary units. The alleged motive was counter-insurgency, but the violence against civilians was entirely disproportionate to the URNG’s limited popular support and military strength.

The persistent civil strife conveyed an image of political instability that discouraged foreign investment and limited the government’s economic modernization projects.[37] Much as in El Salvador, domestic and international circumstances aligned to create an opportune context in which to end three decades of strife. A desire to improve its international image and attract aid and investment pushed the Guatemalan government towards the negotiating table. The URNG gained some political legitimacy by being at the negotiating table, a feat they never accomplished militarily. In emphasizing a human rights agenda, they made maximum use of the one area in which they had relative political clout.

The first substantive agreement in U.N.-moderated peace talks was the Comprehensive Agreement on Human Rights, signed on March 19, 1994.[38] Efforts to reach a negotiated solution spanned a decade, pre-dating U.N. involvement, and gradually evolved from a means of ending conflict to a forum for the drafting of a blueprint for a new national project (proyecto de nacion). U.N. verification of all agreements was requested in January 1994. The U.N. Human Rights Verification Mission (MINUGUA) initiated verification of the Comprehensive Agreement on Human Rights in November 1994, and will continue to verify compliance with the array of accords through 2000.

3. The Peace Process in Liberia

The Liberian internal armed conflict began on Christmas Eve in 1989 when the NPFL launched attacks aimed at ousting the dictatorship of President Samuel Doe and “effectively triggered a war that has brought the almost complete destruction of Africa’s oldest republic.”[39] In August 1990, the Economic Community of West African States (ECOWAS) sent in its Ceasefire Monitoring Group (ECOMOG) to halt the carnage. While not authorized by ECOWAS’ statute, regional politics, principally Anglophone,

determined the ECOWAS agenda and level of ECOMOG involvement.[40] U.N. Security Council authorization was eventually obtained in spite of ECOMOG’s unclear peacekeeping mandate and aggressive involvement in peace enforcement activities that revealed a lack of impartiality.[41] In 1993 the United Nations Observer Mission in Liberia (UNOMIL) was established to oversee cease-fire agreements and marginally, to report on major violations of international humanitarian and human rights law and assist local human rights NGOs identify funding sources for capacity-building, training, and logistic support.[42] “By 1996, three successive interim governments had been installed with the help of the international community. Over a dozen peace accords [had] been acceded to by the various parties to the conflict, but none [had] established a lasting cessation of hostilities.”[43] On July 19, 1997, Charles Taylor, former NPFL warlord, won national elections that swept him to the Presidency and gave control of the legislature to his National Patriotic Party.[44]

In stark contrast to the El Salvador and Guatemala processes, the Liberian experience was shaped by “three crucial factors–the economics of war, the erosion of civilian power and the incoherence of international peacekeeping.”[45] While the Salvadoran and Guatemalan governments saw peace as the road to economic development and the FMLN and the URNG saw their Cold War funding sources drying up, the Liberian conflict was fueled by national and international processes that “sustained and profited perpetrators of violence at the expense of others.”[46] Unlike the peace processes in El Salvador and Guatemala, there were no attempts to address the concerns of civilian groups in Liberia. The peacemaking process continually expanded to “include all groups with the capacity to wreck the peace,” thus ceding authority to the more powerful factions and legitimizing violence and criminality as paths to political power.[47] International peacemaking initiatives in Liberia were irresolute and proceeded in an incoherent manner.[48] The clash of interests among ECOWAS member states was reflected in ECOMOG’s failure to fulfill its peacemaking mandate, especially early on.[49] The slowly deployed U.N. observer forces lacked coordination and profes-

sionalism.[50] Presently, a tense peace is holding in Liberia as the immense task of rebuilding has tentatively begun.

D. Key Actors’ Capacities to Address Children’s Rights Concerns

In a foreshortened peace process that aims primarily to stop the guns, as in Liberia, the most conscientious children’s rights advocates will be at a loss to intervene. Even in El Salvador and Guatemala, where peacemakers seized the opportunity to craft a post-war rebuilding agenda, they did not take a child-conscious approach. Opportunities abounded to incorporate a child-consciousness into the framework of the Guatemalan agreements, and the lessons learned in El Salvador compelled such an approach, yet no parties to the talks raised children’s rights issues.[51] Negotiations on the Guatemalan Comprehensive Agreement, the Agreement on Identity and Rights of Indigenous Peoples[52] and the Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict[53] neither provoked discussion of children’s rights nor produced any child-specific provisions. The URNG might have used their credibility and leverage on the issue of human rights to ensure that the Comprehensive Agreement on Human Rights included specifics on issues such as child recruitment, juvenile justice reform, reparations for past violations, physical and psychosocial recovery programs.[54]

On the advice of the U.N. moderator, a late draft of the Agreement on Socioeconomic Issues and the Agrarian Situation included a paragraph reaffirming the government’s commitment to implement the CRC. Though the provision in no way broadened the Government’s existing obligations,[55] it inexplicably vanished from the final version of the Agreement. In contrast, the same agreement explicitly reaffirms the government’s obligations as a party to the Convention on the Elimination of Discrimination against Women and commits to legislative and programmatic reforms to “strengthen women’s participation in economic and social development on equal terms.”[56]

The September 1996 Agreement on the Strengthening of Civilian Power[57] provides for the reform of all branches of the justice system. In February 1996, the U.N. Committee on the Rights of the Child asked the Guatemalan government to report on its efforts to train “personnel in detention centers, security personnel, government officials, judges and lawyers about the Convention.”[58] The Government emphatically replied that as soon as the new Children and Adolescent Code passed Congress, international cooperation and financial support would be required to train new justice administration personnel and to develop the requisite administrative infrastructure.[59] Yet these Government negotiators never raised these concerns during the peace process.

1. Failing to Take Opportunities in the Political Process

Recognizing the essential role that Guatemalan society could play in the reconciliation process, parties to the peace process promoted the establishment of an Assembly, comprised of domestic NGOs, to formulate recommendations on major substantive themes.[60] The participation of a broad social sector was intended to ensure that the accords reflected a national consensus. The Assembly of Civil Society (ACS)[61] was established on May 17,

1994.[62] As the children’s rights movement had had no prior involvement in civil society’s efforts to influence the peace process, they were not initially invited to participate in the ACS, and they failed to request representation in a timely manner. By the time of finalization of consensus documents, an umbrella organization for child welfare groups (CIPRODENI) joined the NGO sector of the ACS, but its representative’s contribution was imperceptible.[63]

Though the ACS submitted its proposals in October 1994, the peace process dragged on until December 1996, enabling the ACS to submit revised proposals for agreements on socio-economic matters, agrarian reform, strengthening of civilian power, and the role of the military. The original consensus proposals on socio-economic and agrarian matters included several child-relevant demands including one for an improved health care system comprised of, inter alia, (a) emergency programs to reduce infant mortality, (b) sexual and reproductive health and planning programs, (c) specific mental health programs for uprooted and returnee populations, and (d) physical and mental health attention for women and children affected by political, family and sexual harassment or violence. Included were protective measures for child laborers, community based child-care programs, and protection for children in difficult circumstances. The U.N. moderator recalls no discussion of these issues at the negotiating table. For example, primary health and education are major themes in the final socio-economic agreement but the programmatic aspects of these issues were determined by current World

Bank priorities and there was no discussion of how the proposed macroeconomic reforms in the agreement would affect children.[64]

With the inauguration of Alvaro Arzú as President in 1996, the peace process notably became a forum for defining a proyecto de nación. While there was clear consensus on the need to address the role of women and the indigenous population in this “new society” project, as well as on the need to reckon with past abuses, children’s rights advocates failed to get their concerns to the table.

Advocates crafting the new Children and Adolescent’s Code and ACS members working on the socio-economic or strengthening of civilian society themes were simultaneously grappling with the issues of decentralization, regionalization, popular participation and justice administration reform. Some communication among the Guatemalan Pro-Convention on the Rights of the Child Commission (PRODEN), the Office of the Children’s Rights Ombudsman (PDN), other key children’s rights activists and the ACS might have streamlined their proposals and the Children’s Code might have garnered broad-based support early on.[65] The Children’s Code has not yet entered into force. The ACS continues to monitor compliance with the peace accords and formulate proposals for post-conflict policies, but the children’s rights sector remains unrepresented.

2. The Reluctance of Peacemakers to Address Issues They Perceive to be Politically Inexpedient

The time and resources allocated within a peace process to demobilization, rehabilitation and reinsertion programs partially depend on the political-military context that brings parties to the negotiating table and on the degree to which society is receptive of the process. A fighting faction will have to balance the desire to allay its combatants’ anxieties over compensation while avoiding public resentment over the perceived rewarding of violent behavior. Imminent post-demobilization election schedules can exacerbate these tensions. The use and abuse of child soldiers was a particularly stigmatized practice in Mozambique and, in order to avoid acknowledging its own child soldiers just as the 1994 national election campaigns were getting underway, FRELIMO was allegedly willing to refrain from denouncing RENAMO’s forced recruitment of children and from insisting on rehabilitative programs for demobilizing youth.[66] Political expedience can result in complicit denial of children’s rights violations by all factions, and children’s rights advocates should frame the issues in ways that ensure they are addressed.

In Guatemala, proportionately little attention was devoted to the agreement on reincorporation of the URNG[67] because the government felt that an overly detailed agreement would provoke political opposition and public resentment over preferential treatment for former guerrilla fighters.[68] As it was, the reincorporation agreement engendered resentment among demobilized civil patrollers, who far out-numbered the URNG combatants and who received no benefits or compensation for what was very often their forced participation at the expense of lost wages and, often, physical injury. Additionally, commanders wanted to portray former combatants as better off for their valiant experience, not as needy, depressed, anxious or aggressive malcontents in need of therapy or mollification. According to several peacemakers, the URNG commanders emphasized future opportunities for combatants over redress or rehabilitation for past suffering.[69] During the negotiation process, the commanders maintained an idealized view of education’s role in the URNG and projected a desire for educational opportunities onto their troops. When surveys were eventually carried out in the demobilization camps, the overwhelming majority hoped to reincorporate into the agricultural sector.

The propensity to portray former combatants, and war-affected populations in general, as healthy and fulfilled limited the URNG’s capacity to urge psychosocial rehabilitation programs. Ana Guadalupe Martínez, former FMLN commander in El Salvador, suggested to ACS members that they urge the Guatemalan government and URNG to commit jointly to mental health services for the demobilized population, but the advice was not heeded.[70] When asked directly, Carlos González and the late Rolando Morán, former URNG commanders and peace process participants, did not deny that psychosocial issues might hinder their combatants’ reincorporation into family and community life. Former combatants unrealistically placed enormous faith in vocational training and many, González feared, might ultimately face frustration, resentment and feelings of uselessness when they lacked the skills or opportunities necessary to succeed in their chosen vocation. González also anticipated community-level power struggles between URNG combatants with leadership experience and community leaders fearful of challenges to their positions. Finally, he pondered the possible difficulties that former fighters accustomed to a communal, externally organized and disciplined lifestyle would have in managing their new personal independence. González felt that the demobilizing URNG troops would have rejected the incorporation of any mental health program during their brief encampment period due to the associated stigma.

Creative programming would anticipate and resolve the conflicts between (1) the psychosocial reincorporation needs of many former combatants and the stigma attached to specific programs, (2) the need for vocational and educational training in keeping with realistic goals and expectations, and (3) the need to bolster positive self-image while recognizing difficulties inherent in a transition from an ordered, hierarchical existence, where basic needs are institutionally resolved, to one in which the individual must fend for and discipline himself.

IV. CRAFTING A CHILD-CONSCIOUS PEACE PROCESS

This Part examines the component parts and products of a “typical” peace process and discusses the need to exploit resulting opportunities, tensions and dynamics on behalf of war-affected youth. Peacekeepers enjoy a degree of access and authority that equips them to prevent grave abuses and, occasionally, to perpetrate them.[71] They must avoid causing harm to children and would ideally act as agents of protection. Furthermore, the normative framework, monitoring mechanisms, institutional reforms and mechanisms of redress crafted during peace negotiations can establish the basis for a continued respect for children’s rights. The products of peace processes must be

consciously crafted to respond to children’s needs, avoid exacerbating harmful situations, ensure future protection, and redress past wrongs.

A. Avoiding Abuse: Humanitarian Law Guidelines, Codes of Conduct, Training, and Sanctions Procedures for U.N. and Regional Peacekeepers

As the U.N. organ with the “primary responsibility for the maintenance of international peace and security,”[72] and the unique capacity to authorize peacekeeping and peace enforcement interventions,[73] including those by regional peacekeeping forces,[74] the Security Council has the duty to ensure that its troops act in accordance with children’s rights. [75] All U.N.-endorsed troops should be trained in the relevant humanitarian and human rights corpus, and the Security Council should monitor peacekeepers’ conduct, promptly investigating abuses and censoring transgressions. It is insufficient for the Security Council to exhort nations to abide by the Geneva Conventions and CRC, while U.N. and regional peacekeepers hover at the fuzzy margins of normative and disciplinary regimes.

On June 29, 1998, the Security Council debated “the rapid increase in the number of child soldiers worldwide”[76] and considered a number of preventative measures. News coverage of this important event asserted that although “the Security Council has limited power and no experience in dealing with the problem, members agreed to take children into account when discussing peacekeeping operations or other responses to conflict.”[77] For two years prior, the General Assembly had called upon the Security Council to do just that, and there are a number of initiatives the Council might well pursue.[78]

1. Establishing Standards for Peacekeeper Conduct

U.N. and regional peacekeeping forces have had to confront situations involving child victims or participants in hostilities and have, at times, demonstrated an inadequate ability to react in accordance with international standards. Tense circumstances, vague mandates, and a lack of training and operating guidelines have produced lamentable encounters between peacekeepers and youth.[79]

The sources of the law affording special protection to children in time of armed conflict include international human rights and humanitarian law treaties, customary international law and national law. International humanitarian law (IHL) relative to the protection of youth in international and non-international armed conflict, embodied in the fourth Geneva Convention[80] and Additional Protocols I and II,[81] includes rules governing, inter alia, the recruitment and participation of youth in hostilities,[82] the treatment of youth detained during conflict[83] and the status of civilian youth

who take up arms.[84] Article 38 of the CRC limits the recruitment and participation of youth in armed conflicts.[85] These instruments and a number of other normative instruments codify or reflect a range of protective measures applicable to children as civilians in war time.[86] One commentator noted:

The basic principles which ought to apply include: limitations placed on the means of injuring the enemy; distinctions made between the civilian population and those participating in hostilities (in the conduct of military operations every effort should be made to spare the civilian population); and a prohibition on civilian populations being the objects of reprisals, forcible transfers or other assaults upon their dignity.[87]

Article 38(4) of the CRC recalls states’ obligations to respect IHL and requires that they take “all feasible measures to ensure protection and care of children who are affected by an armed conflict.”

The applicability of these standards depends on the type of conflict and whether or not a given state has ratified or acceded to the relevant treaties. Non-state actors such as individuals or ‘non-state entities’ (NSE’s) are traditionally the most difficult to hold accountable.[88] Yet many of IHL’s child protection provisions are widely construed to comprise customary international law, valid in both international and internal armed conflicts and for all

parties to the conflict, much like article three common to the Geneva Conventions itself.[89]

The authority of the totality of IHL and human rights law over U.N. peacekeepers is a debatable topic, but as an agent of the international community in the service of peace and human rights, the U.N. and their sub-contractees “should be held to an even higher standard than those embodied in the current laws of war.”[90] The implications of this position would entail, for example, training peacekeepers to respond to the very serious military danger often posed by armed children even though, legally, both coerced and voluntary child combatants lose their civilian status and become legitimate military targets.

U.N. policy should mandate that all U.N. peacekeepers and regional peacekeeping organizations adhere to certain field guidelines, dealing with how to confront child soldiers, the protections due to detained child combatants and child civilians, and recommended procedures to demobilize child soldiers. Such guidelines would entreat peacekeepers and peace enforcers to weigh the potential collateral damage a given military attack poses to children, civilians and civilian objects more heavily than typically required by humanitarian law’s proportionality rule.[91] Unfortunately, current Draft Guidelines for U.N. Forces Regarding Respect for International Humanitarian Law mention children only to proclaim that “[w]omen and children shall be the object of special respect and shall be protected in particular against any form of indecent assault.”[92] Though the Draft Guidelines do not distinguish among detained combatants of different ages, they would ensure humanitarian treatment of detainees,[93] and the CRC would further require the separation of detained children from adults.[94]

Security Council resolutions, U.N. Guidelines and perhaps a code of conduct should also confer an obligation on U.N. or U.N.-endorsed peacekeepers to report and to intervene in children’s rights violations they encounter.[95] Twelve case studies on the sexual exploitation of children in armed conflict[96] prepared for the U.N. Expert on Children in Armed Conflict’s report, “found the main perpetrators of sexual abuse and exploitation to be the armed forces of parties to a conflict, whether governmental or other actors.”[97] Peace operations should devise mechanisms to channel reported violations back to the parties, ensure they are addressed within the peace process and, if necessary and appropriate, go public with their findings. When a U.N. or regional peacekeeper encounters child soldiers under age fifteen participating in hostilities in violation of applicable international, humanitarian and/or domestic legislatit has recommended that governments train their security and armed forces, “especially those participating in peacekeeping operations, in humanitarian and human rights law.”[99] Improved final U.N. Guidelines might serve as a useful core curriculum. Military training for all military personnel, and U.N. or U.N.-endorsed peacekeepers in particular, “should emphasize gender sensitivity, child rights and responsible behavior towards women and children. Offenders must be prosecuted and punished for acts against women and children.”[100]

2. Investigating and Punishing Peacekeeper Violations of Children’s Rights

The investigation and discipline of peacekeeper transgressions is in urgent need of standardization. In six out of the twelve countries referred to above

(Angola, Bosnia, Cambodia, Croatia, Mozambique and Rwanda)[101] “the arrival of peacekeeping troops has been associated with a rapid rise in child prostitution.”[102] The Liberia case study notes that the presence of ECOMOG soldiers fueled child prostitution[103] and the same occurred upon ECOMOG’s arrival in Sierra Leone. An objective international body should assume the task of inquiring into such scenarios, or, at least, states should adopt uniform disciplinary procedures. At present, investigation and punishment falls to ad hoc procedures or to the domestic civilian or military courts in troop-contributing nations. Consequently, there is no consistency in determinations of whether to initiate an investigation, how to try the accused, and what sanctions to impose. The sluggish response by both the U.N. and Italy to reports of widespread child prostitution by Italian soldiers of the United Nations Operation in Mozambique (ONUMOZ) in 1992[104] is indicative of the problem.[105] According to the Machel study, the story of abuse by UNOMOZ peacekeepers ended when “the soldiers implicated were sent home.”[106] We do not know what measures, if any, were taken domestically by the Italian government.

Similar cases, however, reveal that domestic sanctions tend to be disproportionately light both in relation to the crimes involved and in light of the inherently unequal relationship between peacekeepers and the civilian population. A Belgian soldier with the U.N. peacekeeping mission in Somalia was recently convicted in a Belgian military appeals court for mistreating Somali children. Half of his one year jail sentence was suspended. The same soldier received a three-month suspended sentence in a lower court in March 1998 “for offering a friend an underage Somali girl for his birthday and tying a second child to a moving vehicle during the 1993 U.N. operation.”[107] A Canadian Court Martial Appeals Court recently heard the appeals of five army personnel charged in the three-hour beating, torture and killing of a sixteen-year-old Somali youth, while posted to peacekeeping duties with UNOSOM in March 1993.[108] Sentences ranged from severe reprimands and rank reductions to a five-year jail term for torture and manslaughter for a Private, who had photographed himself with the prisoner before he died. By requiring troop-contributing nations to adhere to minimum standards, the U.N. could at least pressure member states to take action consistently against transgressors.

B. Ensuring Protection: Norms, Institutions, Monitoring Mechanisms, and Programs

1. The Normative Framework for the Transition

The peace process is an environment in which participants can push the scope and content of IHL and human rights law beyond their traditional limits, benefiting from opportunities to stipulate both the basis for the parties’ interaction and the norms and institutions that will govern post-conflict society. The El Salvadoran government and the FMLN, for instance, came to the negotiating table partly over their mutual desire to end the conflict by political means, foment the democratization of the country, guarantee unrestricted respect for human rights and reunify Salvadoran society.[109] The San José Agreement on Human Rights elaborated on this stated commitment to human rights and, going beyond the State’s human rights obligations codified in the internal legal order and numerous international

conventions, declared the FMLN capable and willing to assume a commitment to respect the inherent attributes of the human person.[110] The Guatemalan Government and URNG early on reached a similar commitment to human rights. In terms almost identical to the San José Agreement, the Comprehensive Agreement on Human Rights reflects both the Guatemalan Government’s domestic and international obligations to respect human rights and the URNG’s commitment “to respect the inherent attributes of the human being and to contribute to the effective enjoyment of human rights.”[111] These references to the capacity of non-state entities (FMLN and URNG) to respect basic human rights principles offer a precedent that could be employed to bring NSEs within the scope of human rights and humanitarian norms in the future.

In Guatemala and El Salvador, although the agreements did not advance novel interpretations of the states’ obligations, they established a framework binding on both governmental and non-governmental entities, which facilitated the international monitoring. In both cases, the parties requested international verification of the agreements and consented to monitoring both during the transition period and thereafter.

Although these agreements are not treaties, and there is no legal recourse for violations of their commitments, factors peculiar to peace processes increase the likelihood of respect for such pacts. For example, inclusion at the negotiating table coupled with monitoring of compliance can to some extent legitimize or confer international credibility on the government and opposition groups. Governments may foresee the need for an international imprimateur of good conduct and “democratic vocation” to attract international donor aid and economic investment, as well as technical assistance for post-conflict institution-building.[112] As mentioned before, the inclusion of certain opposition groups at the negotiating table may lend a status or legitimacy beyond that previously acknowledged by the government. Such opposition groups may hope to impress the civilian population and the international community. After all, these groups often aspire to participation in the political life of the country once they make the transition from armed opposition group to legitimate political party.

The establishment of a normative basis for monitoring all parties’ conduct can have great influence when peacemaking and conflict continue on parallel tracks. In both El Salvador and Guatemala, the first topic addressed in the peace negotiation processes was human rights, and the parties sought international verification even prior to the conclusion of peace talks. In El Salva-

dor, the San José Agreement,[113] concluded on 26 July 1990, became subject to U.N. monitoring in July of 1991, approximately six months before a final cease fire went into effect on February 1, 1992. In Guatemala, this interim period was much greater; over two years elapsed between the initiation of U.N. monitoring of the Comprehensive Agreement on Human Rights and the signing of the “firm and lasting peace” on December 29, 1996. Afterwards, once the NSE evolves into a political actor and its members join the civilian citizenry, the principle normative obligations attach to the State, while the NSE might be required to fulfill certain procedural obligations, e.g., concerning elections, documentation of its members, disclosure of information on arms or past rights violations.

The impact of the Guatemalan agreement was more striking than the San José Agreement. Since conflict in El Salvador warranted application of Protocol II,[114] and international NGOs had long monitored FMLN conduct in accordance with the Protocol’s terms, the agreement did not significantly alter standards regulating FMLN conduct. In Guatemala, however, the conflict could only be characterized as violent internal strife. The URNG demonstrated neither the capacity nor willingness to comply with the terms of Protocol II, and international organizations did not hold them to these standards.[115] The Comprehensive Agreement elevated the URNG to the status of an entity willing and able to accept normative obligations and respond to allegations of conduct falling short of their commitments.[116]

Although the majority of the obligations enumerated in the Comprehensive Agreement rightly belong to the Government, both parties accepted a number of important undertakings. For example, the agreement by both Parties “that the freedoms of association and of movement are internationally and constitutionally recognized human rights which . . . must be fully enjoyed in Guatemala”[117] enabled MINUGUA to verify and denounce roadblocks at which the URNG forced civilians to attend political meetings or make “donations.” The Mission further verified forced conscription of both youths and adults by the URNG as a potential violation of their commitment.

Even more far-reaching was commitment 9, paragraph 1 of the Comprehensive Agreement: “Until such time as the firm and lasting peace agreement is signed, both Parties recognize the need to put a stop to the suffering of the civilian population and to respect the human rights of those wounded, captured and those who have remained out of combat” (emphasis added). The

obligation here is broader than that enunciated in article 3 common to the Geneva Conventions. More may well be required to end suffering than refraining from egregious violations of the rights to life, physical integrity, individual liberty, and due process. The Guatemalan negotiation process thus served to expand the reach of humanitarian law concerning the protection of civilians during the peacemaking process–an outcome that benefited children both directly and indirectly.

Including provisions in peace accords that extend human rights and humanitarian law to NSEs, or even establish higher standards applicable to all parties, can be a useful peacemaking strategy. Any number of violations may occur between the initiation of peace talks or the proclamation of a cease-fire and the consolidation of peace. A party might step up forced recruitment to create the impression of being a larger force as demobilization approaches and reintegration packages are negotiated. Opposition parties may desperately exact war-taxes as they anticipate their dissolution and diminished fund-raising capacity. Humanitarian provisions that are effective immediately and are monitored by an international body can reinforce public confidence in the peace process and reduce the incidence of serious violations of children’s rights pending final peace.

2. The Institutional Framework for Post-Conflict Society

Peace plans increasingly tend to lay the financial and technical assistance groundwork for post-conflict institution-building and strengthening programs, yet children’s needs are often ignored.

El Salvador’s peace accords created two new institutions: the National Civilian Police (PNC) and the Human Rights Ombudsman (PDH). The former was to comprise a Minor’s Department but it was never formed. The Ombudsman’s office does include a “Minor’s Defender,” but, like the parent organization, it is weak, under-funded and incapable of carrying out its mandate to “investigate complaints, assist victims, promote judicial and administrative remedies, monitor the situation of detainees, supervise administrative conduct, propose reforms and issue reports.”[118] Salvadorans still fear complaining to a government-related agency. Many individuals perceive children’s rights violations as “normal” aspects of private life. Furthermore, many NGOs have yet to overcome their reflexive inclination to report violations to the international community before engaging with a domestic state agency. In short, the new institutions do little to inspire child advocacy in Salvadoran society.

El Salvador’s San José Agreement authorized the U.N. Observer Mission in El Salvador (ONUSAL) to “offer its support to the judicial authorities of El Salvador in order to help improve the judicial procedures for the protection of human rights and increase respect for the rules of due process of

law,”[119] but ONUSAL’s efforts in support of the newly created PNC and PDH disregarded these institutions’ responsibilities vis-a-vis children. The PDH comprises a Children’s Rights Ombudsman’s office with an extensive–yet under-funded and under-staffed–protection and reporting mandate, and the PNC is obliged to respect the rights of children accused of transgressing the law, ensure the protection of abused children, and refrain from perpetrating their own abuses. ONUSAL also undertook to provide technical assistance to the judiciary and various NGOs, but reform efforts never extended to the juvenile justice system. The judiciary has staunchly resisted reform and efforts to work closely with NGOs rarely extended to child advocacy groups.

Guatemala’s Comprehensive Agreement on Human Rights, however, enabled the verification of certain allegations of children’s rights violations and the provision of minimal institutional support to the children’s rights movement. Peacemakers learned from El Salvador’s experience that a failure to reform and strengthen the justice administration system could weaken the transition to the rule of law.[120] The Guatemalan agreement thus obliged the parties to strengthen the institutions responsible for justice administration and the promotion of human rights, and it empowered MINUGUA to provide technical advice and other support to specific agencies.[121] To avoid creating institutions lacking substance and perpetuating corrupt ones, these accords emphasized constitutional and statutory reform, institutional strengthening, and technical cooperation, while also providing for the necessary financing mechanisms.

Unfortunately, juvenile justice administration was never even considered at the negotiating table, and children’s rights advocates tried to elaborate a new Children and Adolescents’ Code in a parallel process.[122] Peacemakers

ignored the concerns of children, despite the fact that children constitute over fifty percent of the Guatemalan population and were surely the social sector “most affected by the armed conflict, displacement, poverty and in general, by the culture of exclusion, fear and silence.”[123] The new Children’s Code was scheduled to enter into force on September 27, 1997, one year after its approval by Congress, but the failure to integrate it in the peacemaking framework caused complications.

Over the course of that year, while international agencies funded, trained and monitored the reform and progress of those components of the justice system provided for in the peace accords, almost no resources were devoted to building the institutional framework necessary to realize the new Code’s objectives. Entry into force was postponed for six additional months. In the absence of affirmative efforts to convey the Code’s new philosophical framework to the public and to initiate the institutional changes mandated, reactionary sectors of society have filled the void with advertisements and editorials denouncing the Code.[124] Allegations that the Code violates the universal and divine rights of parents and wrongly allocates responsibility for children to the state have caused further delays in its entry into force and unleashed a flood of proposed reforms flowing into Congress,[125] which could have been avoided if children’s rights advocates and peacemakers had worked together to reflect the Code’s principles within the new social order and to ensure the allocation of the resources and expertise necessary for the realization of the Code’s objectives.

Children fared far worse in Liberia, where the peace process set its sights much lower, intending principally to halt hostilities and enable the semblance of a democratic transition. In this case, the peacemakers neither made substantive, post-war commitments nor did they provide for an overseeing mechanism to monitor their progress. The U.N. Observer Mission in Liberia

(UNOMIL), established in 1993, had worked in conjunction with ECOMOG troops to oversee cease-fires and demobilization plans, but had no specific peacemaking mandate. In December 1997 the U.N. established a Peace-building Support Office in Liberia to “pursue the political objectives of post-conflict peace-building” by “mobilizing international political support for international assistance to Liberia; . . . developing an integrated approach to the [Government’s] peace-building programs . . . facilitating the provision of technical assistance and support by the U.N. system for reconciliation efforts and the establishment of democratic institutions . . . .”[126] As institutions are rebuilt, legislation re-drafted and personnel trained throughout the social welfare and justice systems, the U.N. Peace-building Office needs to ensure the prominence of child participation and protection.

3. International Monitoring and Verification of Compliance with Peace Agreements

a. Access and Tools: The Monitoring Mandate, Staff Training, and Field Manuals

International monitoring and verification of peace agreements can keep the parties at the negotiating table, instill public confidence in the peace process, and play a significant role in securing compliance with the provisions of peace accords. El Salvador is the first, and perhaps best example of U.N. verification of the terms of peace agreements. Even though the parties requested U.N. verification in each agreement reached under U.N. auspices, beginning with the Geneva Agreement in April 1990,[127] the extent of the verification requested under the terms of the San José Agreement in July 1990 and the wide-ranging faculties with which it endowed ONUSAL crucially moved the process forward and sealed its irreversibility. ONUSAL’s purpose was to investigate the human rights situation, paying special attention to the rights to life, physical security and integrity, due process, individual liberty and freedom of expression and association. The agreement further authorized ONUSAL to take any steps it deemed appropriate to promote and defend these rights.[128] However, although children are clearly subjects of human rights ONUSAL offered its staff negligible guidance on children’s rights monitoring. Nonetheless, because “human rights” were understood by the parties to encompass international humanitarian law,[129] ONUSAL could verify cases of forced recruitment and the recruitment of minors by the parties until the conflict ended on January 16, 1992. ONUSAL furthermore undertook a special investigation of the conditions of

imprisoned youth. Despite these positive steps, the “Methodological Guide” for active rights verification made no mention of children’s rights per se.[130]

The Guatemalan government and the URNG charged the U.N. with active verification of alleged human rights violations. The agreement particularly emphasized the rights to life, integrity and security of person, individual liberty, due process, respect for the freedoms of expression, association and movement, and to political rights[131] and requested special attention for “the situation of the most vulnerable groups of society and to the population directly affected by the armed confrontation (including displaced persons, refugees and returnees).”[132] Children are clearly among the victims of violations of all but the last of these “priority rights” and form the majority of the most vulnerable sectors of society. Verification staff training and the Verification Manual, adapted from the ONUSAL Methodological Guide, thus referred to children’s rights.

Although mandates among verification missions and possibilities for effective monitoring vary widely, missions would be more likely to track children’s rights if the Methodological Guides, Monitoring Manuals and other tools included appropriate references to the particularities of children’s rights verification. The Office of the High Commissioner for Human Rights is currently moving in this direction in its drafting of a model human rights verification manual.[133] In recognition of both the strong role a human rights field officer can play in protecting children’s rights and the low priority uniformly granted to the monitoring of children’s rights, the U.N. Human Rights Field Operation in Rwanda (UNHRFOR), Radda Barnen and Save the Children Federation–USA compiled a manual on the protection and promotion of children’s rights in the field. The manual was available in Rwanda and was used for several months to orient UNHRFOR staff. Unfortunately, as UNHRFOR staff turned over and the manual’s principal draf-

ters left Rwanda, the manual fell out of use and whatever data was collected using the manual is currently unavailable.[134] Had the international child rights organizations in Rwanda been more committed to institutional “ownership” of the manual, perhaps they could have persuaded new UNHRFOR staff to continue using it and disseminate it as a model for adaptation and use in other country contexts and monitoring missions.

The Liberian peace process addressed only the immediate mechanics of cease-fire, demobilization and political transition, and concerned NGOs and international agencies pursued efforts at the margins of the peace process to address child rights. UNOMIL[135] was “required among other things, to investigate violations of the [Cotonou] cease-fire agreement and to ‘report on any major violations of international humanitarian law,’”[136] but ultimately proved unable to overcome regional political limitations and international disinterest in its ability to monitor violations. They deployed with one human rights officer, who remained only a short time. In November 1995 the mandate was expanded to include investigation of human rights abuses.[137] UNOMIL also assisted local human rights NGOs identify funding sources for capacity building, training and logistical support. The second human rights official was on board from late 1995 until March 1996 and departed just before the offices and their contents were destroyed by factional fighting in Monrovia in April 1996. No files were ever replaced for the next human rights officer, who arrived in November 1996. Between February 1997 andSeptember 1997, two additional, supporting human rights officers arrived. Such a skeleton staff could not be expected to produce many high quality investigations. Worse still, since their own colleagues, the ECOMOG troops, were often among the perpetrators of violations subject to UNOMIL verification, UNOMIL was often bogged down in the politics surrounding these investigations.[138]

Guatemala and El Salvador, on the other hand, offered broad access and investigative powers to the respective U.N. verification missions and requested active monitoring of compliance with human rights commitments. Nevertheless, children’s rights were not explicitly prioritized in the San José Agreement or the Comprehensive Agreement, little active verification of children’s rights violations was undertaken and children’s rights issues remained marginal to the post-conflict peace-building agenda.

b. The Need for Proactive Verification

Active verification that includes a focus on child rights would inevitably produce information supportive of child advocates seeking to improve child protection within the peace process and post-conflict. Though MINUGUA did not actively verify respect for child rights, cases of violations were denounced and investigated, and local NGOs requested assistance on child-related issues. Eventually the Mission came to possess a quantity of information on child rights in Guatemala that might have fed back into the on-going peace process or been used to support child advocates’ efforts to improve protective legislation and institutions.

From November 1994 to May 1995, after one and a half years on the ground, fewer than seven percent of the cases MINUGUA admitted for verification involved minors as victims.[139] Complainants alleged violations of the rights to life, physical integrity, individual liberty, due process, and the freedom of association. As for cases involving children in the armed conflict, MINUGUA verified several cases of forced recruitment and participation in the civil patrols (Voluntary Civil Defense Committees).[140] Investi-

gations showed that children were accepted into the army in spite of their age and in violation of the domestic military service law. Military and civilian authorities were occasionally found to have falsified documents for minors to overcome the age restriction. In two cases soldiers who had enlisted as minors were involved in causing or participating in the deaths of civilians: in one case a seventeen-year-old soldier killed an unarmed fisherman, and in another, a seventeen-year-old was among the patrol of twenty-five soldiers responsible for the deaths of eleven persons and the injury of twenty-three more in the returnee population of Xaman in October 1995.[141] The Mission had received two complaints alleging forced recruitment of minors by the URNG. Investigation of these complaints provided insight into why children volunteered for the armed forces or the URNG and what their participation involved.

A brutal picture of children as victims can be drawn from several cases MINUGUA verified even during a period of much diminished armed confrontations. The “Xaman tragedy . . . described by the Mission as the gravest incident since its establishment” involved the deaths of three children,[142] among the eleven unarmed peasant returnees killed by soldiers who fired upon them in the “Aurora 8 de Octubre” returnee village in Verapaz.[143] In another incident a girl was killed in a URNG attack on an army base, and still another boy was slightly injured and traumatized when he was trapped with his family on a road that suddenly converted to a battleground. A series of mine or grenade explosions that caused a number of injuries and deaths shows how children will continue to fall victim even in the war’s aftermath.

Verification also reveals the psychological and social state of war-torn communities, and the particular difficulties children face even post-conflict. MINUGUA offices observed the frustration of young returnees, the majority of whom were born and/or grew up in Mexico and had to adapt to much more precarious living conditions in Guatemala than they had previously knASS="page">*** Top of Page 164 ***

MINUGUA’s collaboration with a local street children’s organization revealed what urban life for many children was like, irrespective of the peace process. Violence against street children by police and private security forces has long been rampant in the capital. MINUGUA verified due process and individual liberty cases that exemplify the abuses inflicted on children on the streets and the inability and unwillingness of juvenile justice authorities to ensure prompt and fair treatment of minors, whether victims, detainees or accused.

Only after about two years of operation did MINUGUA decide to pursue institutional-strengthening projects aimed specifically at children’s rights-related institutions. Currently, state institutions are incapable of ensuring respect for children’s rights, and child advocates are inexperienced at challenging the system and securing remedies for children’s rights violations. The Institutional Support Program for Legislative Reform (PROLEY) produced several studies on the then-proposed Child and Adolescent’s Code. These included a feasibility study intended to counter arguments that the sorely needed reform would be too costly to implement and substantive suggestions to improve various drafts.

MINUGUA has not realized its potential in protecting children’s rights. Pursuant to the Comprehensive Agreement’s terms, MINGUA reports regularly to the U.N. Secretary-General, and some reported cases have involved minors. Nevertheless, institution-building activities related to justice administration did not consider child-related issues and it would be overstating the facts to say that the Mission paid particular attention to children’s rights cases or issues. The scenario in Guatemala was very favorable to U.N. monitoring of children’s rights, and a mission with equivalent resources and political space could have undertaken significant initiatives to further children’s rights.[144]

4. Demobilization, Reintegration, and Reparations Programs

The pragmatic reasons for addressing child protection during a peace process are best illustrated in terms of the consequences of not having done so in the past. Though causal associations are impossible to establish, anecdotal evidence suggests a positive correlation between the failure to incorporate explicitly children’s rights at key junctures in the peace process and certain negative social, emotional, and moral developmental outcomes. The following discussion of demobilization and reinsertion programs in El Salvador, Guatemala and Liberia will exemplify this assertion.

Post-conflict settings are often characterized by competition for scarce resources, fragmentation of civil society, and the inability of key actors to act in concert once the unifying pressures of the war and peace process slacken.

Efforts to clarify vague peace provisions at this stage are laborious. Thus, the opportunities afforded by the peace process should not be missed.

Peacemakers and child welfare advocates interested in promoting the rehabilitation and reintegration of child participants in war will find a paucity of documented past experience to learn from. The El Salvador, Guatemala and Liberia peace processes provided for no child-oriented demobilization, reintegration or reinsertion programs. Reparations for the war-wounded or families of fallen combatants are rarely provided for and appear designed to reach very few of those deserving.

a. Demobilization and Reintegration in El Salvador

The National Reconstruction Plan (NRP) provided for in the El Salvador peace accords foresaw two broad programs through which benefits would be conferred upon participants and victims of the war. The first was intended to facilitate the reincorporation of FMLN combatants into civilian life, “including programs such as scholarships, jobs and pensions, housing programs and business start-up loans.” The second aimed to benefit both the war-wounded as well as civilian family members of war victims.[145] Unfortunately, the NRP was vague and required extensive post-conflict renegotiation. The post-conflict correlation of power put the FMLN at a bargaining disadvantage, the 1994 national elections injected a political agenda into the government’s negotiating strategy, and it became exceedingly difficult to extract the government funds necessary for the NRP’s implementation.[146] According to the Coordinator of the FMLN’s commission to follow up on the peace accords, only a fraction of the resources called for in the NRP went to the former conflict zones and very little benefited children there.[147]

i. Reincorporation of Combatants to Civilian Life

The FMLN negotiators were so intent on reducing and reforming the Salvadoran military that the terms of the demobilization of over 8000 FMLN troops and their reincorporation into civilian life were left overly vague.[148] Some 1500–1600 children below the age of eighteen were among the 8552 FMLN combatants encamped and demobilized between February 1 and De-

cember 15, 1992.[149] One hundred five of these were between the ages of eleven and fifteen.[150] Though the FMLN negotiators knew that the reincorporation programs would eventually offer ex-combatants a choice between scholarships for university or technical study and access to small business loans (“the urban option”) or a small parcel of land on credit and some agricultural training (“the rural option”), they gave no special thought to what these options would mean for young combatants. According to an FMLN-affiliated NGO, some eighty percent of former combatants chose the rural option, and it was evident that youth were unlikely to choose the urban option.[151] It was not until after the peace process had ended, however, that the Government asserted a legal technicality to bar persons under eighteen from applying for credit, an obvious prerequisite to acquiring the rural option’s land parcel. The numbers of young ex-combatants choosing the rural option was significant enough to elicit strenuous FMLN efforts to overcome this obstacle.

Renegotiation tables were set up, and participants describe the process as far more grueling than the formal talks. Salvador Sanchez Cerén, former FMLN commander and negotiator at the peace talks and currently FMLN Party Coordinator, recalls that the Government adamantly insisted that the peace accords only benefit citizens, meaning persons over age eighteen. This was a blatant attempt to reduce the pool of beneficiaries and program costs. An arduous fight resulted in special legislation that enabled those between sixteen and eighteen to apply for credit to take advantage of the land offer. Ultimately, the 105 demobilized combatants under age sixteen received no benefits at all.[152]

In late 1994, after over two years of post-conflict renegotiation, the National Reconstruction Secretariat (NRS), responsible for administering the NRP, inquired into the educational or vocational training interests of FMLN demobilized minors excluded from the land transfer program on January 16, 1992. Some 250 appear on the final lists of those eligible to enroll in one of the NRS’ two possible options:[153] enrollment in existing Ministry of Education courses along with some undefined basket of school supplies and basic food supplements for one year, or attendance at a technical training course offered by European Economic Community or German Cooperation along with up to one year’s basic food supplies. The survey purported to address the Government’s failure to extend the original benefits plan to all demobilized FMLN combatants. One hundred and fifty-two surveyed youth chose to participate in the education program, though for untold reasons only nine actually enrolled, and only one finished his studies and received the monthly food package.[154] Though ninety-seven youth were identified by the survey as eligible for the technical training program, not a single one was actually registered, and the program was closed down.[155]

ii. Compensation for War-Wounded and Families of Fallen Combatants in El Salvador

Failure to clarify in the peace accords precisely who would be eligible for the negotiated programs providing reparations for injury or for the loss of a family member during the war reduced the numbers of claimants and enabled the Government to impose restrictive interpretations as to eligibility.

The program to benefit war victims was codified in the Law for the Protection of the Wounded and Handicapped in the Armed Conflict. Among beneficiaries are the war-wounded and handicapped on both sides of the conflict as well as the elderly parents, minor children and incapacitated family members of any age, who had been economically dependant on a child or parent killed in the war.[156] An institution was created to administer the one-

time or periodic payments and medical, rehabilitative or therapeutic services for which qualifying beneficiaries are eligible.[157] Persons were initially granted twenty months within which to apply for benefits, after which their rights under the law would expire.[158]

More than four years after the publication of the above-mentioned law, a relatively paltry number of beneficiaries had actually qualified for and received benefits.[159] The principal explanation for the painfully slow flow of benefits is the predictable inability of beneficiaries to amass the extensive documentation required by the administering institution to prove their own identities, and their relationship to the combatant killed in the war. It was difficult to obtain the death certificate for the combatant and proof that the claimant was economically dependent on the deceased relative.[160]

Procuring benefits was thus fraught with administrative difficulties. The cut-off date to apply for benefits allowed no time for public confidence in the peace process to take hold and gave the impression that it was intended only to minimize government expenditures. In 1997, the Government extended the time limit for potential beneficiaries to apply and grudgingly created a temporary mechanism through which death certificate substitutes can be more easily obtained for purposes of attaining benefits. [161] The legislation failed to eliminate the “complex, lengthy and costly bureaucratic procedures that family members must submit themselves to in order to obtain the requisite documents.”[162]

Succinctly put, benefits failed to reach many children who were, or should have been, eligible. A great number of children whose parents were killed during the war were excluded from the terms of the benefits legislation simply because they were already over eighteen when the law entered into force and thus did not qualify as “children” within the meaning of the law. Many others were not included in the government census of potential beneficiaries because they were unaware, unable or afraid to have their names included on a government list that would identify them as family members of FMLN combatants. Still others were included in the census but had no understanding of the procedures to follow subsequently.[163] NGOs that want to locate people on the official census and help them apply for the benefits are denied access to the official list and told that it is solely a government obligation.

There is much for peacemakers to learn from the two programs described above about the need to employ language that explicitly eliminates foreseeable obstacles to a child’s ability to claim entitlements intended precisely for him or her. Both child combatants and victims in El Salvador’s conflict suffered the consequences of foreseeable hindrances to their reinsertion and reparation.

b. Demobilization and Reintegration in Liberia

Not all “lessons learned” can be applied in all peace processes. The FMLN’s bargaining power ensured that some benefits would devolve onto their combatant and civilian population base, but the Liberian peace process afforded no opportunity to negotiate reincorporation programs or reparations for victims, much less structural reforms to the economy or any other national institution. Still, Liberian child soldiers were featured in countless media broadcasts and publications throughout the war[164] and a limited number of donors were relatively amenable to funding programs targeting this population.

The Liberian accords further included several provisions that might have provided a framework for substantive demobilization programs and special attention to the thousands of children to be demobilized. For example, the cease-fire agreement in the Cotonou Accord of July 25, 1993 prohibited the recruitment and training of combatants during the cease-fire period and referred to a complete “process of demobilization, retraining, rehabilitation and re-absorption of all former combatants.”[165] The Akosombo Agreement of September 12, 1994 supplemented and amended Cotonou. It provided

that encampment centers would be set up during demobilization to “serve as transit points for the further education, training and rehabilitation of . . . combatants” and called on national, regional and international entities to “design a program which recognizes the peculiarities of the parties and finances the process of demobilization, retraining, rehabilitation and reintegration of all former combatants to normal social and community life.”[166]

Despite the best efforts of several child welfare organizations in Liberia,[167] the final, hasty demobilization of 21,315 combatants,[168] including 4306 minors, between November 1996 and February 1997 involved none of the elements aspired to in the accords. To encourage youth to demobilize, the requirement of handing in a serviceable weapon was waived, and the U.N. distributed education vouchers, which ultimately proved worthless. Special care, such as tracing and interim care provided by UNICEF and Save the Children/UK, was available only for those under age eighteen who identified themselves as unaccompanied. Of the 4306 children who walked through the demobilization process, only some 416 demobilized youth were transferred to transit homes;[169] the others received a package of vegetable oil and bulgur wheat and were left to fend for themselves; their whereabouts are largely unknown. Estimates are that thousands more did not formally demobilize at all, and they, along with many of those who did demobilize, remained under the de facto command of their military leaders.[170] These and the thousands who entered the factions at a young age and spent an average of five years fighting prior to demobilizing as adults are presumed to be among those still fighting in neighboring Sierra Leone. Others are likely amidst the Monrovia street youth population, child laborers exploited by gold miners or groups of youth roaming the countryside.[171]

Even in a political environment this frustrating, a conscientious effort by child advocates might stand a chance of attracting the funding and support necessary for programs likely to ease the transition to post-conflict society and produce long-term social benefits. Lessons learned in Liberia are fueling current efforts to galvanize the international community to respond to the plight of war-affected children in Sierra Leone. This initiative merits close

attention as a possible example of a concerted and conscientious approach to the protection of children in peacekeeping and, eventually, post-conflict settings.

Far less time has elapsed in Liberia, unlike El Salvador, since the formal close of hostilities in 1996, and it is difficult to get an overview of what is happening to children. A limited number of interviews conducted in Monrovia with NGO staff in November 1997 indicated increased numbers of street children and heightened delinquent behavior in urban areas associated with a lack of attention to psychosocial needs. There was insufficient family and community counseling in preparation for the return of former child soldiers, who might display disruptive attitudes and behavior. A counselor working with war-affected children at the UNICEF-supported Children’s Assistance Program in Monrovia predicted that many families and communities will respond badly to the returning youths’ lack of discipline. Save the Children Fund/UK (SCF/UK) designed a community-based follow-up program that should provide a clearer picture of how youth are coping in their post-war communities.

c. Demobilization and Reintegration in Guatemala

The situation in Guatemala stands in stark contrast to that of Liberia due to nature of the conflict in Guatemala, the political context of the negotiations, the motivation and objectives of international involvement and the length of time afforded to draft and then implement the agreements. In Guatemala’s case the parties intended, with international community support, to structure a new social order or proyecto de nación.

One entire Guatemalan agreement addresses the integration of URNG combatants and political affiliates into civilian life.[172] The initial integration phase for URNG combatants comprised a two-month demobilization plus a one-year reinsertion phase, both of which included various documentation, training and employment services.[173] Between 836 and 882 youth, or approximately thirty percent of the URNG combatants, were between ten and twenty years old during the demobilization period.[174] Another thirty-seven

percent were between the ages of twenty-one and thirty, and of these, many had probably joined the URNG as youth. Nevertheless, there were no special programs targeting youth during the demobilization.

Having concluded the initial integration phase on May 2, 1997, Guatemalan former URNG combatants and political affiliates became eligible for the year-long “URNG integration programme,” a package of legal, political, economic and security measures and subprograms intended to “ensure the success of the integration process.”[175] The integration program specifically states that former combatants, women, young people and disabled persons would be treated as “sectors requiring specific priority attention.”[176]

The URNG estimated the size of their total combatant and political affiliate population between ages ten to eighteen to be 1912 persons, or approximately forty-four percent of a total 4360 URNG members. The relatively high number of youth among URNG associates should have warranted special components in the integration program to address specific issues. Such issues could include, for example, the difficulties the younger age group might face in accepting family or work responsibilities, their possible distaste for discipline in the workplace or educational programs, the rejection or stigmatization they might encounter within their new communities and the frustration they may feel at their inability to participate productively in the family or community due to disability, lack of skill or social rejection. The lack of attention to this younger sector of the URNG is, according to the U.N. moderator of the peace talks, proportional to the attention paid to reintegration overall within the peace process.

In spite of the lack of attention to child rights in the peace accords, international and domestic agencies are implementing children’s rights and child welfare programs in El Salvador, Guatemala and Liberia. The lack of systematic monitoring mechanisms built into the programs makes it unlikely we will learn the many potential lessons these efforts could tell us about children in post-conflict settings. At present, we are incapable of identifying whether or not there have been any trickle-down effects to children from general provisions in the peace processes, although many programs and policies negotiated during the Guatemalan and Salvadoran peace processes would, if realized, have benefited children.

Creative advocacy at the early stages of peacemaking can succeed in imbuing a child-consciousness into the normative and institutional frameworks of post-conflict society. Mechanisms equipped to monitor compliance with the parties’ commitments can enable better conceived and funded, and more willfully implemented, demobilization, reinsertion and reparations pro-

grams whose impact on youth we must attempt to track over longer periods of time.

C. Redressing Wrongs: Truth, Impunity, and Accountability for War-time Abuses

Victims and witnesses of war-time abuses expect those responsible to be identified and punished in order to achieve truth, justice, and, possibly deterrence. But society, or certain powerful individuals or institutions, are often unwilling to incur the costs involved. When incompetent judicial systems or broad amnesty legislation frustrate victims’ expectations, victims may become vengeful. They may fear or mistrust other persons, groups, government and a general repetition of events. Adults may transmit their insecurities and prejudices to their children. Peace processes are increasingly the forum for resolving these tensions and peacemakers must concoct, and answer for, the compromises they inevitably reach. Amnesties, truth commissions and judicial remedies all affect children and their adult caretakers and peacemakers must therefore pay particular attention to how war-time children’s rights violations are acknowledged and addressed.

1. Truth Commissions

a. The Limited Focus of Truth Commissions on Children’s Rights Violations

Only one truth commission to date has had a mandate to pay special attention to abuses of or by children. The National Commission on Disappeared Persons (CONADEP), established to clarify the facts related to the disappearance of persons in Argentina, was legally mandated to “determine the whereabouts of children removed from the care of their parents or guardians as a result of actions undertaken with the alleged motive of repressing terrorism, and to intervene as appropriate in organisms and tribunals for the protection of minors.”[177] CONADEP’s final report, Nunca Más, describes in graphic and wrenching detail the perverse nature of the crimes perpetrated on children, including fetuses who suffered the effects of their pregnant mothers’ torture, very young children who witnessed their parents’ torture and kidnapping, infants who were extracted from the womb for illegal adoption, children who were deliberately denied their identities, or used as bait in the capture of others, their mangled bodies washing up on the shores of the Río de la Plata.[178] Some 250 adolescents were kidnapped and

many more were disappeared along with their parents.[179] Families were targeted, detained together, forced to witness or hear each others’ torture.[180] The Commission recommended that laws be passed to ensure that the children and families of disappeared persons receive economic and social assistance, scholarships, and job opportunities and that measures be taken to address the diverse family and social problems caused by forced disappearances.[181]

Most truth commission mandates have been sufficiently broad to include many children within their lists of victims and witnesses, though very few have analyzed their data in terms of the ages of the victims or perpetrators.[182] “In light of the direct impact of the policies of the former state on young people and the active role they played in opposing apartheid,” South Africa’s Truth and Reconciliation Commission held special hearings and devoted a full chapter of the Final Report to the experiences of children and youth.[183] The El Salvador truth commission’s annexes to the final report note that children were among victims of massacres, executions and forced displacement of civilian populations by troops of the Salvadoran armed forces and security forces.[184] None of the highlighted cases significantly involved

youth and none of the final recommendations aimed at “promoting human rights, democracy, and the rule of law and national reconciliation” focus on children.[185]

The Guatemalan Truth Commission made no particular effort to interview children, or adults who suffered violations as children, and staff received no special training on interview techniques to use with youth. However, the data has been analyzed to describe the strategies and consequences of violence on children and to recommend future programs and policies.[186] The nongovernmental historical documentation project undertaken by the Guatemala Archbishop’s Human Rights Office devotes an entire chapter to the experiences of children as victims and witnesses of disappearances, massacres, torture, displacement and life on the run in conditions of extreme deprivation and immeasurable fear, the destruction of their homes and communities, their own militarization and recruitment.[187]

b. The Impact of Truth-Seeking Processes on Individual and Collective Recovery and the Need to Include and Protect Children in Such Processes

The Machel study recommends that governments in transition from conflict establish truth commissions that consider violations of children’s rights as one possible vehicle for reaching “community healing,” justice and reconciliation.[188]

No data exists on the long-term effects of truth-seeking processes on participants or society in general. The Argentine Nunca Mas has looked specifically at child victims of forced disappearances, briefly summarizing the emotional disturbances, clinical pathology, personality disorders, and even suicide of children witnesses to and victims of state brutality. In one singular sentence following the report of a child who for years after birth suffered extreme clinical reactions to his mother’s electric shock torture administered during pregnancy, the commission asserts that “since having come to a state organism such as this Commission . . . one observes favorable evolution in the mother and child, in their relations with each other and toward the rest of society.”[189]

It is too soon to detect the impact of the South African and Guatemalan reports (both official and nongovernmental) on victims and on the national healing processes. It is unclear whether the efforts or findings of the Chilean truth commission[190] served in some way to mitigate what Chilean psychologists have referred to as “latent fear” among victims who, because of broad amnesty legislation, today walk the streets with their torturers. Fearful adults often transmit their traumas to their children, and the legacies left by efforts at achieving “truth” or “truth and justice” may influence how today’s youth perceive the legitimacy of their government and state institutions.

The potential benefits to children and society of a truth-seeking proies until the TRC convened special hearings on children and youth. Once organized, the special hearings drew enormous input from NGOs and child care professionals. Children participated in creative and flexible ways and were encouraged to witness the hearings. Concerns over the quality of memory are particularly significant if testimony will lead to judicial proceedings or serve as the basis for accusing specific individuals publicly. Though such events often seem clearly ingrained in the individual and collective conscience of the victims—the majority of those testifying to the Guatemalan truth commission who suffered violations as children were very confident in the veracity of their memories, for example—one must weigh the therapeutic effect of giving voice to such memories against the questionable credibility of such testimony in certain settings. A slightly more aggressive approach to obtaining information on child abuses would require only marginally more investment. In El Salvador, for example, the truth commission had data on the ages of witnesses and victims and might have done more simply to cross-reference age with data on a wide range of violations. The South African TRC’s innovative methods of including children in the process while prohibiting them from formally testifying should be studied closely.

Other objections to consciously addressing children’s rights violations in truth-telling processes are implicit in a rejection of such processes altogether, especially in societies with long traditions of customary healing practices often described as antithetical to approaches that emphasize revisiting at