Accountability

A girl holds her malnourished nephew at a UNICEF-supported therapeutic feeding unit in Mirwais Hospital, in Kandahar, capital of Kandahar Province, Afghanistan. They are waiting with family members. The unit treats an average of 300 children per year, from all over the region. Due to ongoing conflict, few humanitarian groups can operate safely in the area.

"The purpose of a monitoring, reporting and compliance mechanism is to provide for the systematic gathering of objective, specific and reliable information on grave violations committed against children in situations of armed conflict, leading to well-informed, concerted and effective responses to ensure compliance with international and local children and armed conflict protection norms."⁴⁷
Source: Secretary-General's Report on CAAC (2005) [PDF].

A key objective of the MRM is to enhance the accountability of state and non-state armed groups of grave violations against children. Accountability includes, inter alia, holding parties to armed conflict responsible for their actions, which negatively impact the lives of children in armed conflict. This includes holding parties to armed conflict to their responsibilities during armed conflict, including actions or inactions, monitoring and sharing reports of violations, and obtaining remedial action and, in certain cases, judicial or other redress.

As such, this chapter focuses on the accountability of state and non-state actors of grave violations against children at all times, at the national, regional and international levels, which not only seeks justice for affected children and their communities, but also acts as a preventive tool against future violations by contributing to a culture of enforcement of norms and applicable legal instruments and responsibility.

Figure 6: Overview of the components of accountability

National governments have the primary responsibility for the protection of children. As stated in Security Council Resolution 1612 [PDF] (2005), the MRM does not intend to replace or to substitute the protection or rehabilitation role of local governments, but rather aims to support and complement this role. The national government should remain the ultimate guarantor of the respect of the rights of children even in situations of armed conflict, and remains the main actor to ensure accountability and to establish mechanisms to prevent further violations. It is fundamental that national governments play a key role in the response, accountability and prevention activities associated with MRM.

The work that the MRM Country Task Forces are doing in implementing Security Council Resolutions 1612, 1882 and 1998 [PDFs] in conflict-affected countries has led to a more evidence-based approach in advocacy and action to address child rights violations. It has also led to raised responsibility for the UN and other organizations to do something with the information that is collected.

As noted in paragraph 102 of the above-mentioned Secretary-General's Report,⁴⁸ reports compiled should serve as triggers for action on the part of the appropriate international, regional and national bodies, each employing the means and levers of influence at its disposal to ensure the protection, rights and well-being of war-affected children.

Security Council and Action Plans

Security Council

Due to its primary responsibility for peace and security, the Security Council has a special responsibility for ensuring the protection and well-being of children exposed to armed conflict, and the MRM has its closest, though not exclusive, interaction with the Security Council through regular meetings of its Working Group on CAAC. The SCWG holds regular detailed sessions on country situations of concern throughout the year and proposes concrete recommendations to the parties which carry great weight, and failing which sanctions may be applied. As noted in the Report of the Secretary-General, "With respect to ensuring compliance with children and armed conflict protection norms, the Security Council is by far the most important international "destination for action."⁴⁹ The Secretary-General's monitoring and compliance reports on children and armed conflict received by the Security Council serve as triggers for action. As noted in the Report, "In order to end impunity, it is critical that grave and persistent violations lead to targeted and concrete measures of response by the Council. The SCWG has a number of options at its disposal that have been outlined in the Options for Possible Actions by the CAAC Working Group of the Security Council ('Toolkit') - see Annex VI: UN Security Council Working Group Toolkit [PDF]. A summary of this Toolkit has already been presented in the previous chapter.

The Toolkit includes actions in the areas of assistance, demarches, enhanced monitoring and improvement of mandates. It is also possible for the Council to forward to the existing Sanctions Committees relevant information received by the Working Group and its conclusions thereon. Another option available to the Council is to inform the relevant justice mechanisms, in order to bring information to their attention and contribute to ending impunity of violators. For example, the Security Council may use information provided by the MRM as the basis for recommending investigations of violations by the International Criminal Court, ad hoc or national justice mechanisms.
The recommendations of the Secretary-General's Report and the Security Council's conclusions provide important accountability tools for CTFMRs to advocate, monitor and ensure implementation by parties to the conflict. The Security Council's attention and ultimate power to compel compliance is a prime motivator for many parties to armed conflict to cooperate with CTFMRs on the ground. This should not be underestimated. The following section looks at how such pressure may be channelled by CTFMRs and the UN at country level to secure commitments and in the development of Action Plans to end violations.

Action Plans and other commitments

As stated in paragraph 75 of the Secretary-General's 2005 Annual Report,⁵⁰ "it is crucial to engage in protection dialogue with all entities whose actions have a significant impact on children, without any implications as to their political or juridical status. My Special Representative for Children and Armed Conflict, UNICEF and other MRM partners have developed a systematic practice of engaging in dialogue with and obtaining concrete commitments from all parties to conflict, and the Security Council has called on all parties to conflict to observe the concrete commitments they have undertaken."

The UN-led MRM Country Task Force is also required by Security Council Resolutions 1539, 1612,1882 and 1998 to develop Action Plans with the parties to the conflict who are listed in the Annual Secretary-General's Report to address grave violations against children, with specific reference to Action Plans to address recruitment and use of children; killing and maiming of children; grave sexual violence of children; and attacks on schools and hospitals.

The MRM Country Task Force has the responsibility of developing concrete, time-bound and verifiable agreements with the parties to the conflict in order to enhance the accountability of responsible parties, and to respond to and prevent future grave violations against children affected by conflict. The MRM Country Task Force is also responsible for monitoring and reporting on progress and compliance to the Action Plan, to the SCWG-CAAC.

Once the Secretary-General's Report on CAAC is published, the MRM Country Task Force should discuss the Secretary-General's key findings, recommendations and a plan of action to follow-up on the recommendations with the parties to the conflict. Similarly, once the SCWG's conclusions are publicly issued, dialogue and follow-up to the conclusions by the parties of the conflict should be regularly maintained by the MRM Country Task Force.

The leadership of the co-chairs of the Task Force - the SRSG or Resident Representative, as well as the UNICEF representative - is critical in taking forward advocacy for Action Plans. Special Representatives of the Secretary-General and resident coordinators are ultimately responsible for ensuring UN-wide follow-up, mainstreaming, coordination and monitoring, and engaging in dialogue with parties to conflict on children and armed conflict issues; they are the focal points at the country level (S/2005/72). In addition, senior staff of other relevant agencies of the CTFMR should also be involved and engaged from the outset.

Templates for Action Plans to address killing and maiming and sexual violence may be found in the annexes of the Field Manual.

Key messages - Action Plans and other commitments

CTFMRs should:

Enter into dialogue with parties to the conflict to prepare and implement concrete, time-bound and verifiable Action Plans on the four trigger violations - recruitment or use, patterns of killing and maiming, rape or other acts of sexual violence, and/or recurrent attacks on schools and hospitals, in line with Resolutions 1539, 1612, 1882 and 1998.

Seek concrete commitments from parties to the conflict to end other violations, if being committed, including specific actions to be taken.

Meet with government and other parties to the conflict on a periodical basis to:
- Monitor the implementation of Action Plans and other commitments received form parties to the conflict to put an end to violations against children in armed conflicts.
- Discuss reports, recommendations and conclusions when issued by the SCWG;

Review progress in the development and implementation of the various Action Plans to stop the use of children recruited and or used by armed forces; to prevent killing and maiming of children; to cease grave sexual violence against children; and to prevent attacks on schools and hospitals.

Security Council and other UN actions

General Assembly

The Annual Report of the Secretary-General to the Security Council on CAAC, which records grave abuses and lists parties responsible for the violations, is submitted simultaneously to the General Assembly to enable it to take appropriate action within the context of its own mandate. The General Assembly also undertakes an Annual Debate on the Rights of Children, in which CAAC issues are also noted.

United Nations human rights mechanism

The United Nations human rights special procedures and treaty bodies play a crucial role in enhancing accountability and are systematically channelled to promote effective monitoring and compliance. For further details on reporting to human rights committees, see the Additional avenues for uses of information section of Reporting.

Treaty Bodies (see below) and Special Procedures gather information on specific human rights concerns, frequently including a specific or even exclusive focus on children (e.g., the Committee on the Rights of the Child), and issue public conclusions and recommendations. In some instances, the positions taken by Treaty Bodies can be used as an actual source of international law. UN Member States have a legal obligation to respect and implement the treaties to which they are a party, or which form a part of international customary law. They also have an obligation to report to the Treaty Bodies on their progress and must take the Treaty Bodies recommendations into account.
Special Procedures focus on specific countries or themes and do similar monitoring and reporting. The UN Secretariat frequently also conducts monitoring and investigations in certain countries (e.g., through the human rights components or peacekeeping operations, or through Security Council-mandated investigations).

Justice mechanisms

Under the requisite conditions of consent, any information collected under UN auspices can be used to pursue accountability, whether through domestic, regional or international proceedings. Accountability can range from truth and reconciliation mechanisms to individual criminal prosecutions.

However, the MRM is not implemented to automatically feed directly into national or international criminal processes. There is a different evidentiary process and standard of proof to determine criminal responsibility for violations against children and criminal intent, which goes beyond the scope and purpose of the MRM. National and international criminal bodies, according to their mandates, separately pursue investigations with a view to securing criminal prosecutions for grave violations against children. Some of these bodies may use the public documents emanating from the MRM - such as the Secretary-General's Annual Country Reports - to inform their own investigations.

For some of the actions that could be taken towards achieving accountability - particularly through justice mechanisms, NGOs may be in a better position (as opposed to the CTFMR) to provide support to individuals, families and community groups who wish to pursue legislative action. An appropriate role for the CTFMR could be in provision of appropriate legal advice and support to NGOs who are supporting victims and their families to pursue accountability.

International Criminal Court

The International Criminal Court and ad hoc international and hybrid criminal tribunals provide further enhancement of the accountability of perpetrators in certain circumstances. As noted in paragraphs 121-123 of the 2005 Report of the Secretary-General, "The establishment of the International Criminal Court is important because of both its deterrence effect and the prospect of prosecution for war crimes against children... Concrete steps should be taken to ensure the earliest possible prosecution of persons responsible for war crimes against children. Some initiatives are already under way in this direction. The Office of the Special Representative of the Secretary-General for Children and Armed Conflict, and the Task Forces on monitoring and reporting can contribute to this by providing the International Criminal Court Prosecutor with relevant information at their disposal. The deterrence role of the International Criminal Court needs to be actively promoted through proactive advocacy and public information activities by United Nations and CTFMR partners at all levels."

Domestic courts

Domestic courts have the primary responsibility for dealing with human rights and international humanitarian law violations, and cases can be pursued independently to be considered by the court. It would be possible to also promote more child-focused cases. This could, for instance, require the engagement of a local lawyer(s) or a legal NGO. For example, the DPKO child protection section in coordination with UNDP in the Democratic Republic of the Congo initiated a programme to support the country's military courts martial for cases of armed forces or group members who were suspected of recruiting children or engaging in sexual violence against children to some success. The process should include identification of issues, which might be most appropriately addressed through this legal procedure. In such proceedings, it is important to consider violations undertaken by all parties to the conflict, as well as to ensure that the procedure is in line with UN guidelines on justice in matters involving child victims and child witnesses of crime.

Truth and reconciliation processes

Truth and reconciliation processes can include investigation and documentation of past events and violations; provide a forum for victims to be heard and for perpetrators to acknowledge their actions; and also recommend further action by other bodies.⁵¹ Truth and reconciliation processes are generally non-punitive, which can encourage perpetrators to openly acknowledge violations they may have committed and to face their victims. Truth and reconciliation processes should be complementary to other justice processes in seeking accountability for grave violations against children. An example of this is the Truth and Reconciliation process that took place in Sierra Leone; children participated in this with child protection agencies involved in ensuring victims and witnesses were supported appropriately.

Possible roles for the MRM Country Task Force - Justice mechanisms:

Based on patterns of violations documented by the CTFMR, the Country Task Force may recommend that the Secretary-General request formal investigations by national, ad hoc or international justice mechanisms in order to establish criminal responsibility and possible prosecution of perpetrators.

It is important to note that the MRM is not directly linked to the below processes, however, the MRM Country Task Forces may link or provide advice to appropriate processes if desired; and the public Secretary-General's Annual Country Reports may be utilized as a reference.

There may be circumstances that individual MRM Country Task Forces choose to proactively disseminate certain information from the MRM data through amicus briefs to relevant courts and tribunals, which would contextualize specific cases.

The CTFMR should ensure that any procedures are in accordance with the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, and that children's participation must be guided by the principles of their best interests.

The CTFMR may provide legal advice and appropriate support to NGOs who are working with individuals and their families on pursuance of actions described above.

Key messages - Accountability:

National Governments have the primary responsibility and accountability for the protection of children, although all actors, including non-state armed groups, humanitarian actors, donors and civil society have accountabilities to protect children.

Accountability for grave violations against children can be held at the national, regional and international levels:

The MRM is not directly linked to any form of criminal procedure or investigation, truth and reconciliation processes or customary accountability mechanisms. However, information provided through public Reports of the Secretary-General has triggered the interest of competent judicial organs in the past.

Further reading - Accountability

Children and Transitional Justice: Truth-telling, Accountability and Reconciliation [PDF]

Strengthening Protection of Children through Accountability, by Gerard McHugh [PDF]

47 Report of the Secretary-General on CAAC, United Nations A/59/695-S/2005/72 [PDF]
48 Report of the Secretary-General on CAAC, United Nations A/59/695-S/2005/72 [PDF]
49 Ibid.
50 Report of the Secretary General on children and armed conflict, United Nations A/59/695-S/2005/72 [PDF].
51 For more detailed information on truth commissions and the protection of children involved as victims, witnesses and active citizens, see Children and Truth Commissions, UNICEF Innocenti Research Centre, 2008.