The nature and consequences of human rights violations differ significantly for men, women and children. The needs of men, women and children in the aftermath of mass violence can also differ. Transitional justice processes and mechanism should incorporate these varying perspectives and ensure the needs of women and children are met.
The ad hoc international criminal tribunals (ICTY and ICTR) broke new ground in the mid-1990s by prosecuting systematic sexual violence against women as a crime against humanity and recognising rape as a war crime (ICTY) and as a crime of genocide (ICTR). The ICC has further sought to advance the rights of women with an expanded definition of what amounts to sexual and gender-based violence (SGBV) in the context of international or non-international armed conflict (see Lambourne & Carreon, 2016). Despite this progress, there remain a large number of victims of sexual abuses in some contexts that have not received justice or any broader recognition as victims and rights holders (Sancho, 2014).
There have been growing calls to broaden transitional justice from efforts to ensure accountability for systemic SGBV against women to a more ‘transformative’ justice that seeks to understand the multiple harms experienced by women and to address issues of patriarchy and gender inequalities (see Lambourne & Carreon, 2016). It is argued that restitution should not entail a return to restrictive gender roles that preceded violent conflict (O’Rourke, 2012) (see also section on socioeconomic rights and development).
Gender should be mainstreamed into all transitional justice strategies, processes and mechanisms. In the case of trials and truth commissions, the psychological harm and socioeconomic implications of SGBV—and the consequences of testifying—require greater attention and support. In many societies, victims of SGBV are ostracised and rendered unmarriageable, which can have profound and lasting social and material effects. Actors working on trials and at truth commissions need to ensure women feel safe to testify and are given support to deal with the repercussions of their testimony (Lambourne & Carreon, 2016).
Truth commissions were originally established in a gender-blind fashion. Following the lead of the South African TRC, subsequent truth commissions (Liberia, Peru, Sierra Leone, Timor-Leste) have created gender units and implemented measures to increase women’s participation. Such measure can include providing childcare and safe transport (Valji et al., 2010). Women have also been appointed as commissioners and experts.
The narrative truth commissions develop should also explore the links between masculinity and violence and unequal power relations and gender inequality as potential root causes of conflict (González & Varney, 2013). The Sierra Leone TRC, for example, was the first to make a connection between ‘extraordinary’ violence against women during the civil war and ‘ordinary’ violence they experienced before and continue to experience since the war (Lambourne & Carreon, 2016). Truth commissions (Sierra Leone and Timor-Leste) have recommended reparations for victims of SGBV. Some argue, however, that such reparations are rarely adequate to redress for the multiple harms they have suffered (Lambourne & Carreon, 2016).
Reparations are usually not designed to address root causes of violence or to transform gender relations (Lambourne & Carreon, 2016). In addition, it is recognised that the principle of restitution is often not appropriate, since a return to more restrictive gender roles that preceded violent conflict may not be desirable (O’Rourke, 2012). Some policy-makers and academics argue that gender-just reparations should be ‘transformative’ rather than solely restorative—going beyond direct relief and support of victims to initiatives aimed at structural change (see Walker, 2016). On an operational level, reparations programmes need to ensure their design is not disadvantageous for women and or that they help eliminate barriers to women’s access to reparations. For example, monetary payments may be of little use for women who lack access to bank accounts (Valji et al., 2010; Walker, 2016). In addition, reparations, considered gender-neutral, have in some instances been disproportionately inadequate for women. In South Africa, for example, gender-neutral payments of a modest flat sum to all victims did not recognise the likelihood that many female victims had lost a bread-winner and had multiple dependants, and thus required greater support (Walker, 2016).
Children and youth
In many violent conflicts, children and youth suffer disproportionately, through direct violence and indirectly through violations against their caregivers. They need to be considered and included in transitional justice efforts to receive recognition as victims, to regain agency and to provide a fuller picture of past violations (Bah, 2009; Aptel & Ladisch, 2011; Ladisch & Ramírez-Barat, 2014). Even where young people are not among the most directly or severely affected by human rights violations, they are important stakeholders in transitional justice. Children and youth need to understand the past in order to play a constructive role in prevention (Aptel & Ladisch, 2011). If transitional justice seeks to advance new social norms and contribute to civic trust, it needs to reach out to youth, who comprise a potential broad base of support.
To date, however, transitional justice processes and mechanisms have not systematically included children and youth (Aptel & Ladisch, 2011). There are almost no examples of consultations by transitional justice bodies that include children and youth. The one exception is the Children’s Consultation on the Truth and Reconciliation Commission Bill, held in Nepal in November 2009 by the Ministry of Peace and Reconstruction, with the mediation of the UN Children’s Fund (UNICEF). The aim of this was to gain information about how children’s issues should be included in the bill and to involve children actively in deliberations about setting up the truth commission. Ultimately, however, the results from the consultation were not incorporated in the truth commission’s draft bill (Ladisch & Ramírez-Barat, 2014).
There should be special considerations when engaging children in transitional justice, including ensuring the best interests of the child, their physical safety and psychosocial well-being and their anonymity (Aptel & Ladisch, 2011). Special care must be given to avoid re-victimising children or exposing them to traumatic information that they are unable to process (González & Varney, 2013).
With regard to particular transitional justice initiatives, children require better access to criminal justice. There should be greater efforts to foster the prosecution of those responsible for crimes against children and procedures should be made child-friendly (Aptel & Ladisch, 2011). Truth commission mandates should make clear reference to violations suffered by children and efforts should be made to gather statements from children (González & Varney, 2013). The Sierra Leone TRC was the first to explicitly mention children in its mandate. The Act to Establish the Truth and Reconciliation Commission in Liberia noted the role of children and outlined measures to protect them (UNICEF Innocenti Research Centre & ICTJ, 2010).
It is also important that transitional justice mechanisms invest in creating materials that are accessible to younger audiences, such as child-friendly versions of truth commission reports that could be introduced into school curricula (Bah, 2009; Aptel & Ladisch, 2011). This has rarely been done (UNICEF Innocenti Research Centre & ICTJ, 2010). Outreach programmes and activities should also be tailored to children and youth. The Peruvian and Liberian truth commissions, for example, have specifically undertaken child- and youth-oriented outreach activities. Limited budgets for outreach generally, however, have constrained the breadth and effectiveness of outreach to children and youth (Ladisch & Ramírez-Barat, 2014) (see outreach section).
Providing reparations to children and youth is a relatively new area of transitional justice. Reparations should aim to help children and youth have the tools and resources necessary for a productive life—for example compensation for lost years of schooling through accelerated educational programmes (Aptel & Ladisch, 2011). Currently, few reparation programmes have explicitly recognised children as beneficiaries; where they have been recognised, there have been difficulties with design and implementation (UNICEF Innocenti Research Centre & ICTJ, 2010; Aptel & Ladisch, 2011). Careful planning is needed to determine how children and youth could learn about and access benefits (UNICEF Innocenti Research Centre & ICTJ, 2010).
Tools and guidance
- Aptel, C., & Ladisch, V. (2011). Through a new lens: A child-sensitive approach to transitional justice. New York: International Center for Transitional Justice.
- UNICEF Innocenti Research Centre & ICTJ. (2010). Children and truth commissions. Florence: UNICEF.
- Aptel, C., & Ladisch, V. (2011). Through a new lens: A child-sensitive approach to transitional justice. New York: ICTJ.
- Bah, C. (2009). Young people’s advocacy in post conflict Sierra Leone. In Rights-based approaches and humanitarian interventions in conflict situations (pp. 90–100). London: UK InterAgency Group on Rights.
- González, E., & Varney, H. (Eds.). (2013). Truth seeking elements of creating an effective truth commission. Brasilia: Amnesty Commission of the Ministry of Justice of Brazil; New York: ICTJ.
- Ladisch, V., & Ramírez-Barat, C. (2014). Between protection and participation: Involving children and youth in transitional justice processes. In C. Ramírez-Barat (Ed.), Transitional justice, culture and society: Beyond outreach (pp. 173–210). New York: ICTJ.
- Lambourne, W., & Carreon, V. R. (2016). Engendering transitional justice: A transformative approach to building peace and attaining human rights for women. Human Rights Review, 17, 71–93.
- O’Rourke, C. (2012). Dealing with the past in a post-conflict society: Does the participation of women matter? Insights from Northern Ireland. William & Mary Journal of Women and the Law, 19(1), 35–68.
- Sancho, H. (2014). Development trends: Using transitional justice to promote development. Stockholm: Sida.
- UNICEF (UN Children’s Fund) Innocenti Research Centre, & ICTJ (International Center for Transitional Justice). (2010). Children and truth commissions. Florence: UNICEF.
- Valji, N., Sigsworth, R., & Goetz, A. M. (2010). A window of opportunity: Making transitional justice work for women. New York: UNIFEM.
- Walker, M. U. (2016). Transformative reparations? A critical look at a current trend in thinking about gender-just reparations. International Journal of Transitional Justice, 10(1), 108–25.