Allocation and Form
A fourth major challenge in providing reparations is to decide on allocation and form. As mentioned in the historical overview in Part I, reparations can take many forms: anything from money, scholarships, and monuments, to the ordering of investigations and declaratory judgments. (159) In a victim-centric approach, victims would be consulted as to the form of reparations in addition to the method of allocation. The results of case studies and research can, nevertheless, help inform victims of the advantages and disadvantages of any given option. In addition, victims' desires must also be weighed against the interest of other victims or victim groups (including victims of "victims," as addressed above). Where monetary resources are few, creative attempts to achieve justice should also be considered. It may be that a day of remembrance or renaming a street can both provide victims with a sense of restored dignity and require minimal resources.
Victims' desires should not, however, be assumed. In Argentina, one organization representing victims rejected the idea of reparations for the loss of family members, declaring in particular that economic reparations were a form of "prostitution." (160) Similarly, land restitution may only be a good option where victims are able or willing to resettle. In Bosnia and Herzegovina, the Commission for Real Property Claims of Displaced Persons and Refugees was established in 1995 as a partial response to the regional conflict. (161) Politicians invested in the success of the Dayton Peace Agreement decided upon property restitution in lieu of compensation in order to help "undo the ethnic cleansing and recreate a multi-ethnic society." (162) Victims' voices were largely silent in these discussions, however, and in practice there was a strong bias against those who did not return. Local authorities are reported to have denied restitution "to those they deemed as having no intention to return." (163) As these examples illustrate, victim consultation is important to rendering effective the right to reparation.
In the girl soldier context there are a host of specific dilemmas involved in deciding upon the form and allocation of reparations for these victims. As illustrated, cash payouts can be confusing for former combatants, if interpreted as a reward for harming others. If the former combatants are still minors, parental guardians may legally maintain control of their assets and there is no guarantee that these will be used for the child's benefit. (164) Payments can also negatively impact family reintegration if child soldiers resist turning over the money to parents, in violation of cultural expectations. (165) Laws in some countries may also prevent adult women from controlling their assets. (166) Even worse, payments for demobilization can incentivize children, sometimes under family pressure, to join armed groups in the first place. (167) While rehabilitation programs are essential, (168) they may not go far enough to explicitly recognize the individual rights violation. (169) This is particularly so where these same benefits are given to former adult combatants. (170) Symbolic reparations involving individualized public recognition may also be problematic where victims of sexual violence or otherwise stigmatized former combatants may wish to hide their status. Finally, as a triple-marginalized community--as women, children, and those formerly associated with armed forces--these girl soldier victims may find it nearly impossible to have input in the process. Deciding upon the appropriate allocation method and form(s)--including the decision-making process--therefore, will be paramount to effectively realizing girl soldiers' right to reparations.
Transformative Justice: A Child-Sensitive and Gendered Approach
Finally, if we are to take a child-sensitive and gendered approach, and conceive of reparations as not only a legal right, but also, as a tool for transformation, we face the additional challenge of how to provide reparations in a manner leading to a better overall situation for both these girls and future society as a whole. At a minimum, this transformative layer requires transitional efforts, such as reparations, to "avoid reproducing and perpetuating unjust social structures." (171)
The relatively new and rapidly accepted notion that reparations should be transformative has been motivated largely by the realization that female viewpoints and their specific needs were being systematically ignored in transitional justice processes, (172) a problem compounded for female youth. (173) Specifically, here, many so-called "voluntary" girl soldiers enlisted to escape sexual abuse, poverty, and virtual slavery. (174) While many, if not most, become victims of worse crimes upon capture or recruitment, it is hardly a just solution to return them to their former situation. (175) In addition to women, children are also frequently marginalized in transitional justice processes. (176) There has been a "tendenc[y] to infantilize children and to regard them as passive." (177) Even many "passionate defenders of the rights of others" remain critical, or at least skeptical, of bestowing children with equal rights. (178) Yet, it is because of the unbalanced adult-child power dynamic that many commanders recruit children and are able to manipulate them. (179)
Beginning in the mid-'00s, however, there has been an emerging trend towards incorporating gendered, child-sensitive, and other transformational perspectives into post-conflict programming. In 2007, the aspirational civil society-authored Nairobi Declaration on Women's and Girls 'Right to a Remedy and Reparation ("Nairobi Declaration") declared "reparation must go above and beyond the immediate reasons and consequences of the crimes and violations; they must aim to address the political and structural inequalities that negatively shape women's and girls' lives." (180) In 2009, taking a progressive rights-based approach, the Inter-American Court of Human Rights, in the hallmark Cotton Field Case, for the first time relied on this basic concept--the need for reparations to address "structural discrimination"--to modify the standard principle of restitutio in integrum. (181) That same year, Rubio-Marin is credited with adding a program's "transformative potential" to the reparations analysis,182 going a step further than previous scholars by placing transformation as a proactive goal. (183) Taking a gendered approach to reparations, she explained, means responding to the needs of women, empowering them in the process, and going beyond simply "restoring] victims to the status quo ante"--often, subjugation and peacetime violence. (184) Reports and handbooks published even more recently, by organizations such as the ICTJ, the International Organization for Migration (IOM), and the Victims' Rights Working Group, all echo these sentiments and mention the need to consider the particular concerns of women in transitional justice processes. (185) Referencing amicus briefs filed by Women's Initiatives for Gender Justice ("Women's Initiatives"), the UN Children's Fund (UNICEF), and others, the ICC has now also taken note of these concerns and progressive new voices in the field of reparations, discussed further below in the section on the Lubanga case. (186)
Given the newness of this endeavor, there remains a paucity of positive examples to draw from and it is too soon to analyze success rates. Many of the aspirational statements and cited best practices are still derived from lessons learned from the failures and pitfalls of predecessor programs. There is also a risk that policymakers will capitalize on this language of transformation to instill external values on the process, and thus "instrumentalize" victims. (187) Gendered approaches to reparations should empower women and girls as participants. Their voices and concerns should be present throughout the decision-making process, from the procedural and substantive design of the program to the form and allocation method of the reparations. Thoughts on how to best meet this challenge for girl soldiers, within an international human rights and humanitarian law framework, will be addressed below. In doing so, the analysis will consider how a transformative approach, when applied to reparation, might impact overall planning, definitional concerns, access to justice, dealing with the issue victim-perpetrators, and questions of allocation and form.
Effectively Realizing the Right to Reparations for Girl Soldiers
While the right to reparation for girl soldiers is evidenced in numerous instruments, including the Basic Principles, the Rome Statute, and the CRC, (188) both paternalistic and patriarchal assumptions continue to contribute to the lack of its effective realization. Paternalistic ideologies, effectively excluding children and youths from political participation, weaken both boy and girl soldiers' ability to advance their own interests. Girl soldiers' "invisibility" based on stereotyped readings of women's roles in conflict (189) and the more overtly sexist prevention of women's equal political participation, furthermore, act in concert to undermine girls' rights.
Non-discrimination provisions in the UN Charter, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), however, make clear that the rights and interests of women and girls rights must be equally guaranteed. (190) Furthermore, girls' rights deserve extra protections, in order to overcome past discrimination against women and to respect children's unique vulnerabilities. (191)
This Part will focus specifically on the right to reparations and how reparations can be best used, ideally as one tool among many, to...
Realizing the right to reparations for girl soldiers: a child-sensitive and gendered approach.
|Author:||Bewicke, Aurora E.|
|Position:||II. Challenges Providing Reparations in the Girl Soldier Context D. Allocation and Form through Conclusion, with footnotes, p. 207-233|
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