Transitional Justice for Child Soldiers: Accountability and Social Reconstruction in Post Conflict Contexts

Author: Kristen J. Fisher
Publisher: New York: Palgrave Macmillan, 2013. 240p.
Reviewer: Lisa J. Laplante | November 2014

In Transitional Justice for Child Soldiers: Accountability and Social Reconstruction in Post Conflict Contexts, author Kristen J. Fisher struggles with one of the most resounding paradoxes to challenge those working in the field of transitional justice: the victim-perpetrator identity and the question of how to deal with these actors in post-conflict recovery processes–namely whether they should be punished or absolved for their violent acts. With regard to children, this dilemma provokes great debate especially given the unique status of children as a vulnerable group that traditionally receives heightened protection.
Indeed, Fisher’s monograph has great relevance to a pressing problem in post-conflict recovery given the rampant practice of recruiting children to fight in wars despite the fact that international treaties place strict limitations on the use of children in combat (p. 2). Shockingly, despite efforts to eradicate the use of young people in conflict, there are an estimated 300,000 children participating in armed combat in 25 countries across the globe.

Given this reality, Fisher moves beyond merely asking why these international prohibitions are failing, and instead explores the question: “What is the best approach to understanding and addressing harmful acts committed by child soldiers to support positive peace and social reconstruction in the aftermath of mass atrocity?”

In particular, she worries about the “the possible trend” of humanitarian workers denying any attribution of responsibility to persons under the age of 18 for serious crimes committed during conflict, such as crimes against humanity, torture and genocide. She takes issue with the “rhetoric of innocence” and the “non-responsible child narrative” used in humanitarian discourse. To illustrate this situation, she prompts readers to recall A Long Way Gone: Memoirs of a Boy Soldier written about Ishmael Beah’s recounting of his days as a child soldier in Sierra Leone, followed by his rehabilitation during which UNICEF therapists repeated to him “it is not your fault.” Fisher views this non-blame approach as “not particularly useful and potentially dangerous to social reconstruction.”

This tendency towards "a blanket of non-responsibility” is reinforced at the level of international criminal law where international and hybrid tribunals avoid prosecuting children ages 15-18. Indeed, the International Criminal Court’s Statute includes a strict jurisdictional limitation to individuals over the age of eighteen. Fisher points out that even though there is no bright-line international norm against prosecution of young people, this avenue does not get pursued in practice, leaving a very large impunity gap. This accountability vacuum raises red flags since international treaties do allow some conscription of children age fifteen to eighteen, who may then commit horrendous crimes but enjoy de facto immunity while doing so.

Alarmed by this trend of non-accountability, Fisher dedicates the first half of her book to ardently rejecting the idea that innocence per se attaches to “young people qua young people” and declares: “the non-responsible child narrative is a fiction.” She employs an agency framework to challenge other scholars such as Margaret Angucia (2009) and Peter Singer (2005), who contend that no child under 18 has the capacity to contribute to armed conflict or make truly voluntary choices given their lesser physical development and mental ability to “exercise autonomous rational choice.”
Rejecting the generalized image of drugged and coerced children in combat, Fisher points out the many reasons that children join militaries and guerrilla fights: They may seek employment, adventure, freedom, excitement; to support a cause, defend or fight for autonomy of ethnic, religious or social groups; and to avenge a death, among other reasons. She further challenges the Western interpretation of childhood that informs this innocent view of children and claims it is inapplicable in cultures where young people adopt adult roles, identities and responsibilities and enjoy greater autonomy. Fisher asserts, although she doesn’t provide direct ethnographic evidence of her own, that “it is demonstrated again and again with the first-hand accounts of young persons who participated in atrocity that they knew what they were doing was wrong and in contradiction with local morality.”

Ultimately, Fisher discards the extreme portrayals of “monsters” or alternatively of the “totally innocent” and argues for a “more nuanced way of looking at child soldiers.” She proposes that the agency of the child should be the determining factor in deciding the most appropriate response to child combatants.

Within her proposed approach, Fisher comes out strongly to support the idea that criminal prosecution must remain a viable option for punishing children who are perpetrators of human rights crimes. In doing so, Fisher steps into the field of Transitional Justice’s most entrenched and longstanding “peace v. justice” debate. Certainly, the theme of criminal accountability, or the lack of it, has in every way shaped the field of transitional justice since its inception. Countries like Argentina and Chile struggled to find mechanisms and processes to redress past atrocities while securing lasting peace — often compromising criminal prosecution for “softer” measures like truth commissions and other restorative justice mechanisms to meet the needs of victims and society. However, over the last several decades, the strengthening of international criminal law and human rights law has moved the justice pendulum back towards criminal accountability as a legal imperative that trumps political exigency.

Although Fisher does not historicize or situate her account as part of the peace v. justice debate (she only briefly mentions it on page 123), she nevertheless joins a cadre of scholars advocating for the return of criminal accountability in transitional justice. Uniquely, she expands the category of prosecutable perpetrators to include children. Yet, she does not rest her case on a strictly legal argument as is more common among those arguing for trials, but rather focuses on the moral prerogative of the individuals and communities affected by the violence inflicted by young people. Here is where Fisher bridges the gap between international criminal law and transitional justice to consider the unique problem of children in conflict recovery, an overlap that has yet to be sufficiently explored by scholars.

Specifically, Fisher contends that the outright denial of the moral and legal responsibility of young perpetrators undermines the social healing of local populations and thus complicates social reconstruction. In particular, she claims communities will obstruct positive social reception and reintegration of children if their concerns and concepts of justice and moral and legal responsibility are not considered. In other words, children like Beah should not be totally absolved for their crimes.

Given Fisher’s hard stance in the first half of her book, I expected her to take a hard line on criminal accountability being applicable to all children who commit serious human rights and war crimes, something that would have struck me as bold even if questionable. However, Fisher presents what is arguably a much more modest approach and almost seems to back pedal to end up closer to the humanitarian rhetoric she contests. Fisher speculates that the majority of cases of children fighting in battle will not warrant criminal prosecution due to their reduced capacity to make rational choices. She then argues that prosecution of children is only appropriate if they “bear significant responsibility for planning, orchestrating, and/or leading atrocity schemes,” but that it is rare for a child to be the architect of atrocity. Thus, her primary recommendation is that most young children should be addressed by other means.

Yet, the subtle but important difference between Fisher’s approach and that of those subscribing to a humanitarian rhetoric comes down to the idea of “fault.” Fisher assumes there will be guilty children and that transitional societies must hold them accountable. Moreover, her position still preserves the normative basis of prosecutions, which requires trials be an available and possible option for children who commit atrocity. However, the type of factors that would normally lead some advocates to adopt a “no fault” approach should instead inform local communities to choose the most appropriate “punishment,” which may fall short of prosecution and imprisonment. Thus returning to the example of Beah, it would be possible to consider that he was youthful, easily coerced, and that he succumbed to the pressures of a collective action. However, these factors would not absolve him of fault as much as mitigate his punishment through alternative means of condemnation.

Fisher employs an interesting means to justify her approach. She calls into question the “theoretical dichotomy between restorative and retributive justice” which she finds to be “misplaced and unconstructive” and thus should be abandoned. She contends that both approaches—criminal trials and restorative processes– serve “expressive goals” of accountability. Here she builds on the work of Feinberg (1965) and argues that both processes serve as educative tools that reconfirm “right” behavior and to restore faith in the community’s order. In her mind, restorative justice can just as easily supply the much needed “retributive-expressive” function that affirms a community’s values and commitment to justice. She dedicates part of her book to “dismantling” arguments that posit traditional, local mechanisms like Mato Oput as lacking retributive elements, but that in fact have aspects of “judgment and punishment.”

Ultimately, Fisher’s model posits that accountability can be achieved through a “combination of approaches which will best symbolically even the scales, communicate condemnation of wrongful behavior, reaffirm equality and particular values appreciated as necessary for peaceful co-existence for community members, and reject the privileged status that the wrongdoer seized for himself in committing the wrongdoing.” She explains that “the task is to determine the right exchange that can be expressively significant, communicating the harm and righting the balance.”

After setting up this proposition of the retributive aspect of restorative justice, Fisher dedicates the second half of her book to exploring transitional justice mechanisms that may satisfy the community’s need to see young people held accountable. She offers some descriptions of these local processes and how they generally work, but leaves unclear if and how they are applied to child soldiers. In fact, I found her discussion of restorative justice and social reconstruction processes to be general and theoretical, relying heavily on the work of other scholars, without offering specific examples of how these processes have included children specifically.

Thus, while I believe that Fisher is making an important contribution by asking the reader to contemplate a still understudied area of transitional justice, I feel that the primary weakness of her book relates only to the omission of what I imagine to be her very rich fieldwork and research Although Fisher makes occasional reference to her study of local communities in Africa, she left me hungry for more empirical findings to offer a more detailed, substantive, first-hand account of how local communities handle the reintegration of child soldiers and whether or not these processes achieve the sense of accountability that Fisher argues is key to the recovery process.

Fisher’s model also left me with questions regarding the functionality of the agency framework she proposed. Her suggestions are provocative, claiming that:

“Ignoring the past and asking former child soldiers to humble themselves without a voice does nothing to acknowledge the capacity of former child soldiers to act with agency, make choices, and impose their decisions on the world, or to domesticate respect for the rights of the former child soldiers or the other victims of the violence. By accepting this conception of childhood that denies children real agency, former child soldiers benefit in one respect but suffer a loss in another; there may be an added simplicity to their reintegration process, but they lose real agency and public esteem as morally relevant agents.”

That said, I could not help but question whether the agency lens would be better for child soldiers, even if it might satisfy community justice needs, and even that may be open to debate. In the case of Beah, his personal recovery depended, in part, on his absorbing the message that he was a victim of circumstances (parents killed, wandering aimlessly for days without shelter, food or support). Although Beah “voluntarily” committed atrocity while fighting with the military, it is hard to deny that drugs, peer pressure, and mental trauma kept him stuck in his soldier life.

How would Beah’s recovery have gone if the UN workers had insisted on his guilt, fault and agency for the obvious crimes he committed? Would it have been helpful or detrimental if the UNICEF therapist had said: “it was your fault and you must account for your actions”? If we were to replay Beah’s experience and include some form of local restorative justice process, even if it was not a criminal trial, would he and the community have been better off? Would he have continued with his activism on behalf of other child soldiers? Would he have been able to integrate to the same extent to “normal” society?

Kristen Fisher, based on her extensive field work, is one of the few scholars to potentially be able to offer us answers to these types of practical questions. I hope her next work shares with us all of her critical research on the topic of children and transitional justice to further flesh out the unique proposal she introduces in this book.

Lisa J. Laplante, Associate Professor, New England Law | Boston, Director, Center for International Law and Policy