A/HRC/21/38
terms ―conscripting and enlisting children‖ and ―using them to participate actively in
hostilities‖. Both interpretations adopted by the Court allow for greater protection for all
children associated with armed forces or armed groups.
24.
Trial Chamber I accepted the approach taken by the Pre-Trial Chamber and
suggested by the Special Representative, according to which both conscription and
enlistment are forms of recruitment, in that they refer to the incorporation of a boy or a girl
under the age of 15 years into an armed group, whether coercively or voluntarily. The
Special Representative argued in her brief to the Court that the distinction between
voluntary enlistment and forced recruitment was a distinction without meaning, as even the
most voluntary of acts could be a desperate attempt to survive by children with a limited
number of options. In such circumstances, any consent given by a child could not be
regarded as truly voluntary in the full sense of the word. Whether the child enlisted or was
conscripted, the line between voluntary and involuntary recruitment was legally irrelevant
and practically superficial in the context of children’s association with armed forces or
armed groups in times of conflict.
25.
The Chamber also decided to apply a broad interpretation of the term ―participate
actively in hostilities‖ to ensure justice and protection for all children associated with armed
forces or armed groups. The Court held that the term included a wide range of individuals,
from those on the front line (who participated directly) to the boys and girls who were
involved in multiple roles that supported the combatants. The Court further refined that
interpretation, using a case-by-case determination and adopting a double test: whether
support was given and whether the support provided to the combatants exposed the child to
real danger as a potential target. The Chamber made a clear distinction between the term
―direct participation in hostilities‖, which determines combatant status under international
humanitarian law, and the term ―actively participating in hostilities‖, which is the criteria
applicable to the use of children in hostilities, holding that the latter was to be interpreted
broadly, and without conferring combatant status on those children.
V. Reparations for children and the restoration of children’s
rights
26.
Where children are concerned, justice includes far more than punishing a
perpetrator. Equally important are measures to restore children’s rights and an element of
reparation to address the loss of their childhood, family, education and livelihood. For
various reasons, only a small proportion of children who have suffered harm during armed
conflict are likely to participate as victims or witnesses in trials before a national or
international court. Access to justice for children in conflict and post-conflict situations
should therefore take place through both judicial and non-judicial processes. For many
children in these situations, non-judicial mechanisms such as reparations can provide more
immediate accountability, foster community reconciliation and allow children to move on
with their lives. There are, however, significant challenges to the implementation of nonjudicial mechanisms, such as the lack of financial and human resources, the victims’
expectations and the need for long-term political support.
27.
Reparations are intended to acknowledge the suffering of victims and harm inflicted
upon them, and to provide compensation, restitution and redress for violations, with the aim
of returning victims to their previous condition to the maximum extent possible. The
principles underlying reparations can be found in the Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law (2005), which were
adopted by the General Assembly in resolution 60/147. According to the Basic Principles
and Guidelines, States must, as required under international law, ensure that their domestic
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