2.1 Protecting children's interests through rights

There are two main competing theories that explain the function of rights, grounded in the protection of one's choices or interests. The ‘will’ or ‘choice’ theory holds that a right is the protected exercise of a choice which recognizes the person as an autonomous agent. The premise that rights serve the purpose of protecting choices, thus that a rights-holder must show the capacity to make such choices (that is, only autonomous people can be rights-holders), and the premise that children do not have the capacity to make autonomous choices, lead to the conclusion that children cannot be holders of rights. This does not mean that there would be no moral duties owed to children, just that the explanation for these obligations is not to be found in them being rights-holders.

However, the mainstream position today is that children do have at least some rights, and that children's rights should protect their interests. The almost universal international ratification of the Convention on the Rights of the Child⁶ (CRC) both expressed a shift in the understanding of children as rights holders, and helped consolidate such a position, which challenges the first premise of the ‘choice’ theory of rights.⁷ At the same time, as I will discuss later, a more nuanced understanding of what it means for a child to be autonomous, and appreciating that capacities for autonomy develop gradually and over time, challenge the second premise of the theory.

Contra a ‘choice’ theory of rights, an ‘interest’ theory of rights holds that the function of rights is to protect what is fundamentally important to us, such as certain things, goods, services and values that are in our interest. This theory is thus able to overcome the children's lack of capacities argument used to exclude them from rights. As Raz⁸ explains, there is a direct connection between interests, rights, and duties. According to him, an individual is capable of having rights when her well-being is of ultimate value, such that an aspect of that individual's well-being, her interest, is a sufficient reason for holding others under duty. In other words, when a certain aspect of her well-being is a reason for holding others under duty, that person has a right.

The ‘interest’ theory is about what function rights should serve, but more needs to be said about what interests should be protected by rights. The core reason for protecting an interest is that it is presumptively beneficial for the claim-holder, so if the claim-holder does not have the competence to realise the content of the claim, the claim lacks strength.⁹ Rights that typically presuppose competence are, for instance, rights to enter into economic or marriage contracts, from which children are excluded on the grounds of lack of competence to make such decisions for themselves, or the right to drive, which is typically conditional on having passed some competence test. Yet if the function of rights is to protect fundamental interests, it is rather straightforward to attribute certain rights to children, and to publicly articulate them, such as interests in care, shelter, health or education,¹⁰ which are instances of welfare rights, that is rights that promote and protect basic needs and indeed the well-being of people.

I see two other strengths of the ‘interest’ theory over a ‘choice’ one. One is that it is able to account for the intuition that we should not assign children the exact same rights we assign adults, as some of those rights will actually fail to protect their interests, and children and adults have different sets of interests or give different weight to the same interests. The other is that while it disentangles capacities to make choices from the protection of important interests, it could account for the interest in making autonomous choices, to be protected for instance by agency rights, that is rights that protect and promote one's agential capacities and autonomous choices.

2.2 Between concern for welfare and respect for developing autonomy

One way to think about the distinction between welfare and agency rights is to think about the different normative source that gives strength to the right: welfare rights are derived from a concern-based attitude for the objective identification and protection of fundamental interests, while agency rights are derived from a respect-based attitude for the recognition and protection of autonomy.

The ‘interest’ theory is thus capable of explaining how children are holders of rights, but the rights typically justified by holders of this view, when it comes to children, are welfare ones. They do not straightforwardly attribute to children agency rights, as they place more weight on children's vulnerability and dependence from others than on their agential capacities.¹¹ Yet, a more nuanced understanding of what it means for a child to be autonomous, and appreciating that capacities for autonomy develop gradually and over time, challenge the idea that children should uniquely be recipients of welfare rights.

Autonomy as a general concept reflects the idea that most of us have the capacity to make independent decisions about our lives and thus should be left to self-govern and direct our lives. To claim that children are fully autonomous is clearly implausible, but they evidently show the capacities for it in varying degrees.¹² On a simple account of personal autonomy, autonomous individuals are thought to have some level of capacities for critical reflection on the authenticity of their preferences, values, and commitments, which are usually called ‘authenticity’ conditions for autonomy, as well as capacities for living according to those preferences, values, and commitments without interference, such as means-ends reasoning, rational thought, and self-control, which are usually called ‘competency’ conditions.¹³

Some views suggest that the autonomous agency of children, on a conception of it that is appropriate to their developing capacities, is relevant for identifying the kinds of treatment that children have a claim to receive.¹⁴ Personal autonomy can also be understood as global or local, and while it is unlikely that children will show full personal (global) autonomy, they can show capacities for local autonomy.¹⁵ For example, children aged ten might not be autonomous in choosing whether to undergo a particularly important medical treatment, but they can choose who they would rather be friends with; or they might not be able to choose an adequate diet, but they can choose how to dress or which haircut to have. Even in cases of medical treatment, it seems important to consult with them beforehand.¹⁶ This is partly because children should have a say in decisions that affect them,¹⁷ and partly because to become autonomous, that is, to develop capacities for autonomy, children sometimes need to be treated as if they were already autonomous,¹⁸ and be allowed to make choices in situations when the stakes are not too high.

A common view, also found within the CRC, is that children should be consulted and, importantly, heard,¹⁹ that is, their views should be taken seriously and they should be given opportunities to express them, yet their decisions do not have authoritative force, as in the decision of whether to undergo a specific medical treatment, which ultimately remains with the adult caretaker. A view that takes seriously children's present capacities for autonomy, however, needs to consider that in the natural development of the child, capacities appear in stages, and that when such capacities reach the relevant threshold for a specific domain of choices, it might be in children's interests to make certain choices authoritatively. Because children seem to care about being considered to some extent autonomous, and to perceive their dignity being harmed when not, their acquisition of rights should also be thought of in stages, corresponding to the stages through which they acquire agency.²⁰ An interest theory of rights capable of accounting how interests change over time, thereby tracking the development of capacities that attract specific rights, as well as the claim of having an interest in opportunities to exercise such capacities, can indeed better reflect the gradual nature of the development of both interests and capacities.

2.3 Balancing welfare and agency interests

Any ‘interest’ theory of rights that wants to adequately respond to children's development should thus be sensitive to the gradual development of different capacities to hold different attracting-rights interests, including interests in sometimes making choices that go against one's interests, when one has the relevant agential capacities to make such choices. A gradualist model that accounts for processes of intellectual, emotional, and moral growth in children, as proposed by Brennan,²¹ initially understands rights as functioning merely to protect their interests, and then, as children grow into autonomous agents, to ensure that their choices, even those which do not serve their welfare, are respected. That is the nutshell of a mixed approach according to which the dichotomy between ‘choice’ and ‘interest’ in theories of rights actually undermines our understanding of children's rights and the function they serve. I believe Brennan is right in her intuitions that as capacities evolve, so interests shift, and that once capacities for autonomous decision-making (first locally and then globally) emerge, respect for autonomy trumps concern over welfare interests. However, it seems to me that one can understand the ‘mixed’ model without departing from an interests-based approach, if that takes into account the mix of welfare and agency interests and their gradual development, which tracks the development of the relevant capacities.²²

I take it that children have important morally relevant interests, such as interests in: the satisfaction of basic needs and living good childhoods, that is, in not being harmed; in growing into autonomous beings and developing morally, that is in developing the relevant agential capacities; and more broadly in living in just and peaceful societies. It is easy to see how wars mostly endanger such interests, but children who go through war experiences keep growing and developing capacities, sometimes in unexpectedly positive ways, as I discuss in the next section. It is not obvious, then, how a framework of rights can be tailored to ensure the realization of all such interests, and how to balance contrasting interests in welfare and agency, once the war is over. Indeed, rights serve both as protections and a set of options for the individual, as well as constraints on the behaviour of other moral agents, both in a positive sense, meaning that rights put constraints on others to contribute to the realization of certain rights, and in a negative sense, meaning that they restrict others' interference in the satisfaction of certain rights. Parents or guardians usually balance the status of the child as chooser, present as well as future, with whatever is at stake in the decision for the child. In order to do that adults can, for instance, follow La Follette's model of autonomy gradualism which acknowledges the different stages of a child's development, moving along the spectrum of recognized autonomy from ‘administered autonomy’, where the guardian has the final word, to ‘minimally constrained autonomy’, where children are allowed to make their own mistakes and live with the consequences.²³ If it seems intuitive that a model of the sort is already in place within many families, it is more complex to identify the boundaries of which sets of choices children are allowed to take autonomously, and from which age on, when thinking of the state and the institutionalization of rights. Any legal codification of rights recognized by the state typically identifies (and justifies) thresholds for the assignment of certain rights, not least because it would be very costly to implement a system that individually assesses both a child's interests and development, and their relevant capacities in specific domains of choices. In this paper I consider why states should gradually assign both welfare and agency rights, particularly for children in the aftermath of war, given the impact that war experiences have on children's developing interests and capacities.

3.1 Children exposed to war-related harm

There are many different situations in which children might find themselves harmed during conflict. For example, children are a) physically and/or emotionally harmed or traumatized, which includes cases of psychological suffering, children who fall ill, get injured (the result of which can be temporary or permanent disability, or death), sexually abused children, as well as children who were already living in a condition of harm, whose vulnerability is exacerbated because of the unstable, violent context, or children who cannot satisfy their basic health and nutritional needs through a lack of supplies or lack of access to humanitarian aid. Besides long-term physical consequences, exposure to war and political violence can provoke the appearance of psychopathologies in childhood and adolescence, often carried into adulthood, such as severe feelings of demoralization, depression and psychological and psychiatric disorders of various kinds, while unresolved trauma may, over time, lead to deviant or disturbed behavior.²⁷ The UN Machel Report²⁸ showed alarming data concerning children's psychological wellbeing, which triggered psychologists' interest in furthering research into war-related Post Traumatic Stress Disorder in children. Indeed, factors such as age, gender, culture, and the nature and intensity of the traumatic event impact how children perceive and respond to trauma, but psychological consequences of trauma can be wide-ranging and long-lasting.²⁹ It seems plausible that such negative psychological consequences set back the development of moral powers and capacities for autonomy in children. They are also often b) separated from their families (e.g. unaccompanied children), which can happen voluntarily or not, because they became separated from their parents or lost in the process of fleeing, or because they were kidnapped, or because the parents have died. Since children have unique physical, emotional, and mental developmental needs (e.g. they need to be learning about the world and themselves as they grow up, learning to socialize, and building up their knowledge and personalities), and since families and primary caretakers are uniquely suited to provide for such needs while granting a safe environment, when children are separated from their families they become even more vulnerable. At the same time, it seems also plausible that, away from familiar contexts, children are more likely to face situations in which they have to rely only on themselves for survival and to make important decisions, which provide opportunities to exercise and thus develop more capacities for autonomy. During wars children are often c) forced to flee their homes and/or countries, becoming internally displaced or refugees. Children are also often d) directly or indirectly involved in violence, (e.g. child soldiers). Mostly, children within armed groups are forcibly recruited, but some willingly join armed groups for reasons which have to do with survival and protection, or sometimes ideology – the first two reasons indicate conditions of duress,³⁰ the latter can be the product of indoctrination or manipulation which children are vulnerable to (all of which suggest overall lack of autonomy); however, ideological reasons could also be an indicator of autonomous agency, for instance when the ideology is authentically endorsed.³¹ Notably, children involved with armed groups incur higher risks of harm as their vulnerabilities are often exploited for military advantage, and it is plausible that children who commit (or are forced to commit) serious wrongdoing, are themselves profoundly harmed by such acts and suffer from psychological consequences. Lastly, children are also e) more broadly impacted by the general consequences that war has on society as a whole, on the economic system, on infrastructure and the provision or basic services (through e.g. attacks on schools and hospitals), and on culture.³²

Despite widespread exposure to violence and harmful situations, children's responses to traumatic events vary, and it is possible to identify cases where, instead, development of moral powers is triggered. For example, growing up in contexts of political violence can result in a premature emotional development and unusually advanced capacity to think and reason in a moral and ethical sense.³³ One of the early studies on the impact of political violence on moral reasoning in children³⁴ shows that children exposed to war and resource inequity have higher justice- and care-oriented responses and identify with the role of victims, expecting reparations for perceived past injustices (although their levels of moral functioning seem compromised by the exposure to violence and economic deprivation). Recent research also found widespread resilience (that is, capacity to respond to challenges, return to stability, adjust to a new normal, and transform to survive and flourish) as well as increased prosocial behaviour among children exposed to war violence.³⁵ I elaborate on this idea in the next section.

3.2 Development of moral powers and capacities for autonomy

I use the term moral development, in short, to mean the development of a combination of capacities for moral powers, in their Rawlsian sense, and capacities for personal autonomy, as explained in section 1. To explore the link between capacities for autonomy and moral powers goes beyond the scope of this paper; however, it should be noted that because not all choices have a moral character, advanced moral powers do not necessarily make someone more autonomous; similarly, advanced capacities for autonomy do not necessarily make someone a more capable moral agent. At the same time, a sense of justice and a conception of what counts as a good life are often part of the background motivations that lead to the autonomous pursuit of certain options rather than others, and autonomy is needed for the realization and exercise of one's moral powers.

The process by which we develop our capacities for moral powers and for autonomy is a gradual one, which follows the more broadly understood (and studied) development of cognitive and moral reasoning during childhood and adolescence.³⁶ Through new experiences and by gaining more knowledge through education and social interactions, by having to make increasingly difficult choices and dealing with their consequences, something triggers that sense of justice and morality that we typically take adults to have acquired in full, but which has in fact been gradually cultivated from much earlier in life, as well as reflection on one's preferences and values, and the exercise of capacities such as means-ends reasoning, self-control, and critical judgment, all of which count towards the improvement of both one's moral powers and autonomy.

It seems plausible, based on my above discussion of circumstances in which children who experience war might find themselves, that they would experience situations where they have to make important choices and face difficult challenges, often on their own, and thus have opportunities to exercise their developing autonomy, for example, by having to use means-ends reasoning to ensure their survival when separated from their family, or by critically reflecting on the reasons of the warring parties and which side to take. It could be argued that capacities for autonomy entail more than just minimal capacities for reasoning and decision-making, and that full personal autonomy might require capacities to self-regulate and control emotions, which might disqualify children who have developed psycho-pathologies or suffer from emotional trauma from being considered autonomous. Nonetheless, the point is that when capacities for (local) autonomy in certain domains of choices are present, they should be given recognition.

As for processes of the development of moral powers, if they normally start within the family, and later advance through interaction with society more broadly, through schooling and by engaging with authority and social norms, there seems to be a distinctive way in which war impacts moral development, because typically it disintegrates that very broader societal framework that children need to engage with.³⁷ Social norms are usually broken down, and societies at war are likely to suffer from killing, cruelty, widespread destruction, and the disruption of trust. Consider also the difficulty of making up for such harsh societal contexts when families cannot shield the child from violence and provide safety and ‘normality’.

Yet, an examination of war-time children's journals³⁸ suggests that those children's intellectual, emotional, and social worlds are permeated by reflections about the meaning of war, peace, death, suffering, justice, and the like. During wars, within schools, families, and society at large, conversations and narratives are likely to center around the importance of war efforts and their causes and consequences, which are likely to trigger reflections on moral concepts of right and wrong, good and bad, and justice, for example in moments of play, family life, discussions among peers, or in educational settings. Today, access to the internet and social media further amplifies exposure to war-related content and opportunities to engage with it, even among children.

It is true that during wars children are harmed, experiencing extraordinary suffering and loss, but they also have various life experiences which are different from those in normal, peaceful times, which expose them to situations that may hinder, or foster, the development of moral powers and capacities for personal autonomy, such as opportunities to build self-esteem, resilience, and empowerment through resistance.

The precise effects of war on children's moral development thus can vary (and may also appear at the same time): from severe mental and psychological disorders and distorted moral categories, to enhanced resiliency and cognitive capacities, as well as advanced engagement with concepts of right and wrong and capacity to sometimes autonomously act upon that understanding.³⁹ I elaborate in the next section what this means when trying to identify justice-based claims and relative rights for children in the aftermath of war.

4.1 The moral development claim argument

I take it that children have a morally weighty interest in developing their moral powers and becoming autonomous. However, section 2 has shown that war exposes children to traumatic circumstances, and thus impacts their moral development for better or worse, by either (a) setting back or (b) advancing it.

Indeed, children show a significantly varied range of responses to war-related harm. Some responses are clearly negative, like mental, psychological, and behavioral disorders, or wrongful internalizations of moral categories; some are positive,⁴⁴ like enhanced cognitive and moral reasoning and resiliency, which suggests great variation in their development of moral powers and capacities for autonomy. While it might seem more intuitive, and evidenced by research, that war-related experiences have mostly a traumatic, negative effect on children's development, it is possible that sometimes children, particularly teenagers, respond to such experiences positively. This is because they are more likely (than children in peaceful contexts) to engage with moral reasoning and autonomous choices, as they often find themselves in situations where they have to make considerations based on what is right and wrong and what justice requires, and to act on such considerations (e.g. whether to join rebel armed groups, separate from families, flee their homes, support one's side, engage in social and political movements, etc.), thus developing their capacities.

Because capacities for autonomy and moral powers typically ground the (im)permissibility of certain treatments (such as paternalism and the granting of certain agency and welfare rights), we ought to assess adequately the extent to which children have developed such capacities to give them due recognition and determine how they ought to be treated, including tailoring interventions aimed at children and socio-political institutions in a way that allows for the exercise, or ‘correction’ and development, of such capacities.⁴⁷

I thus argue that children who have experienced war have a justice-based claim to have recognized the extent to which their moral development has been impacted by war.⁴⁸ The claim can go in either of two directions: for those children (a) whose moral development was hindered by exposure to conflict, the claim holds that they are owed reparative compensation for harm⁴⁹ and adequate opportunities to make up for the loss and advance their development (Negative Moral Development claim), which translates to extensive welfare rights and assistance; while for those (b) whose development was advanced, the claim holds that they are owed opportunities to meaningfully exercise such developed capacities, for example by granting them some agency, and not only welfare rights (Positive Moral Development claim).

4.2 Between welfare and agency rights

The suggestion that children with a Negative Moral Development claim are entitled to opportunities to either correct mistaken internalizations of moral categories, or advance their set-back moral development, translates to granting them an extensive set of welfare rights, that is rights that protect and provide opportunities for satisfying basic needs and the promotion of welfare.

To illustrate, such children should be granted: rights to physical health, as they will need medical assistance towards healing; rights to mental health, as they will need psychological assistance towards recovery; rights to education, as they will need opportunities to make up for any missed time in school and receive adequate training to prepare for the future, as well as benefit from peer interaction and socialization; family rights, as the state should promote, when possible, family reunification and reintegration, as well as children's welfare through services and resources offered to families; rights to care and protection, as the state should ensure that children are adequately cared for and protected, within families or state-care facilities (when children are separated from their families or orphaned) and within institutions that interact with children.

To clarify, these welfare rights should be granted to all children who have experienced war-related harm,⁵⁰ and not only those with a Negative Moral Development claim, although it seems to me that children who were particularly harmed in respect to their moral development will require additional resources and opportunities for recovery, such as in the form of additional psychological and medical assistance, or additional programs within schools tailored to promote reintegration and socialization.⁵¹

On the other hand, the suggestion that children with a Positive Moral Development claim are entitled to opportunities to exercise their newfound capacities for moral powers and autonomy translates to granting them some agency rights, that is rights to act on one's judgment, and not only welfare ones. To illustrate, such children should be given opportunities to access: civil rights, such as rights to free information, free association, and protest, or freedom rights of religion and thought;⁵² rights to work,⁵³ as in being allowed to decide whether to resume their education, pursue vocational training, or seek employment, since there might be cases of children who had to interrupt their studies and start working to help their families or ensure their own survival, but once the conflict is over have a preference to work rather than go back to school;⁵⁴ rights to make medical decisions, that is having an authoritative say on whether to undergo or refuse a certain treatment and how to proceed in their physical (and mental) recovery; rights to emancipation, as there might be older children orphaned or separated from their families that cannot or would rather not reunite with them, nor would like to stay in state-care facilities, but have proven they know how to take care of themselves and live independently. So, in cases where the child has developed local autonomy with regard to some specific areas or values, and it does not go against the child's interest, the relevant agency rights should be granted.

Clearly, there will be situations where welfare and agency rights overlap, such as in the case of medical treatment: children should have a welfare right to have the treatment made available, but also an agency right to decide whether to refuse it. There will also be situations where the two sets of rights are in conflict, like in the education case. One might argue that it would go against the child's ‘best interest’ to have agency rights in respect to decisions that would go against their welfare or undermine their future interests, but the concept of ‘best interest’, as one of the underlying principles of the CRC, has been used to justify paternalistic treatment and the exclusion of children from decisions that affect them, because it is often assumed that adults know best what is in the interest of the child. Yet, if we believe that respect for autonomy, and not only interests-related concern, is the right attitude towards children's developing capacities, and if it is plausible that children with a Positive Moral Development claim are better situated to judge what their interests are, a more nuanced understanding of the concept would recognize that, in some cases, it is the autonomous exercise of agency, rather than constraining their choices, that is in children's best interest.

Finally, it might be observed that some agency rights discussed here, such as rights to information, association, protest, and thought, are already codified and granted by the CRC, which sets standards for almost every country in the world; or they are already considered the standard in some legislations, such as the right to work or make medical decisions. What I have explored here are the normative arguments that justify the claim to such rights in post-war contexts,⁵⁵ identifying the distinctive losses as well as gains to children's fundamental moral interests, protected by rights, in the development of autonomy and moral powers, which adds to reasons for promoting and protecting welfare rights, as a matter of compensation, but also opens up space to reconsider the assignment of adult-like rights in the case of children with a Positive Moral Development claim.

4.3 Concerns

The argument advanced in this section relies on empirical premises which are clearly difficult to substantiate. What the exact impact of war-related experiences is on children's moral development, to what extent such impact can be monitored and assessed, and to what extent such impact is determined by external factors (like specific experiences) or internal factors (such us the inner dispositions or emotional and mental resources of children, which might determine whether they end up with a Negative or Positive Moral Development claim), are all difficult to settle questions which still lack definitive answers. It could also be the case that in different societies, with specific cultures and norms, and in different war contexts, the overall impact of war exposure on children's lives will vary significantly. My goal was to point to such difficulties and, given some of the empirical evidence available, reflect on the implications of such evidence by beginning to spell out a normative (and legal) framework in order to recommend and justify a more nuanced approach when dealing with children's reintegration into society. Of course, there are a few concerns regarding my proposal, both substantive and in terms of implementation, which I try to anticipate here.

On a more substantive level, one might resist the thought that children who have been through such traumatic experiences, and perhaps ‘grown up’ prematurely, should be treated as adults rather than allowed to be children ‘again’, without worrying about the responsibilities that inevitably come with having certain rights. However, childhood is a stage of life that cannot be lived again, and it seems plausible to me that some of these children will not be capable of, nor perhaps have an interest in, experiencing totally care-free childhoods, and might care to be treated more like adults. It would also seem consistent (and unproblematic) to, for example, assign the responsibility of paying taxes to those children who would exercise their right to work. Or to incur legal responsibilities if they enter into contracts or break the law. One might worry that giving agency rights to children increases the risks of manipulation or abuse by adults, for example by exploiting their labor. But as long as states ensure that an effective system of protections and assistance is in place, made available, and tailored to children's needs, that concern could be contained. It could also be objected that a better interpretation of agency rights for children implies rights to develop the exercise of agency under justified paternalistic limitations. This might be true for some children who are still developing some of their capacities, but not for others. Ultimately, this seems to be a matter of finding the right way to balance welfare interests and interests in autonomy, but states should do so from the perspective of children, which means giving children adequate opportunities to recognize both their strengths and limitations, to be well-informed of their options, and to be able to express their needs and preferences – something to be done together with children, and not as imposed by adults.

As a matter of implementation, it could be objected that my proposal has feasibility constraints, since it would be rather costly to both individually assess a child's overall level of development, and the development of specific capacities needed for specific domains of choices. It would also be rather difficult to find a mechanism that strikes the right balance in considering welfare and agency interests when there is tension between them. However, post-conflict settings usually already have in place mechanisms of assistance and recovery, and when those are made available to children, they would have the opportunity to interact with professional adults from medical, psychological, and legal fields, who could provide guidance and recommendations in navigating difficult choices and facilitating reintegration. Commissions of experts, familiar with the war context and its consequences, as well as the broader social and cultural setting, might also be suited, in consultation with younger generations, to establish adequate criteria or thresholds for the assignment of specific services and opportunities to be reflected in rights codifications. These are broad suggestions, but further theoretical and context-specific research could point to more feasible and convincing solutions to the issues raised here.