Documento creado: 20 de marzo de 2008
Air & Space Power Journal - Español  Primer  Trimestre 2008


 The Law of Lost Innocence

The Law of Lost Innocence: International Law and the Modern Reality of Child Soldiers
Major  Bryan D. Watson USAF

If “war is hell,” hundreds of thousands of child soldiers are at the very center of that hell.

Background of the Problem

History does not note many instances in which children have served during wartime; in fact, the last four millennia of warfare have embraced a general norm against using children in war. Modern conflicts have distorted this standard, with some commentators pointing to a “drastic spike” in the practice over the last two decades and arguing that the last fifteen years have come to be known as the “era of the child soldier.”

By most accounts, this increase is grounded in the complexity of the modern global order. One scholar points to (1) “social disruptions and failures of development caused by globalization, war, and disease” leading to “greater global conflict and instability” and “generational disconnections that create a new pool of potential recruits,” (2) “technological improvements in small arms [that] now permit child recruits to be effective participants in warfare,” and (3) “a rise in a new type of conflict that is far more brutal and criminalized.” Together, these phenomena have caused tremendous numbers of children to become vulnerable to exploitation as a convenient labor pool for the world’s battlefields.

Depending upon one’s source, the numbers may vary – but they are always appalling. The use of child soldiers is estimated to have claimed the lives of more than two million children, left more than six million maimed or permanently disabled, and left ten million with serious psychological trauma. By one estimate, over 300,000 children under the age of eighteen actively participate in over 30 armed conflicts in 41 countries around the world. An additional 200,000 children are recruited into paramilitaries, guerilla groups, and civil militias in more than 87 countries. While most of these child soldiers are between the ages of 15 and 18, some are as young as seven or eight years of age. Of course, these numbers are not precise, and they could actually be a mere fraction of reality; after all, those who use child soldiers are not likely to admit - let alone provide firm accountings of - their recruitment and use of children in combat.

Tragically, children participate in all aspects of warfare -- wielding rifles on the front lines, serving as human mine detectors, participating in suicide missions, or serving as suppliers, spies, messengers, or lookouts. Because young children may be physically vulnerable and easily intimidated, their obedience may be an attractive commodity. Perhaps even worse, some groups have capitalized upon children’s unique psychological traits; such groups have learned that “young, impressionable children can be turned into the fiercest fighters through brutalization, and exposure to and involvement in violence. Such children are programmed to feel little fear or revulsion for massacres that they may carry out with greater enthusiasm and brutality than adults.”

Children may be brought into armed groups involuntarily, such as cases in which armed militia, police, or army members arbitrarily seize young recruits from public places - perhaps even conducting raids on schools and orphanages. In other situations, children might enter military service “voluntarily,” because of extreme poverty, peer pressure, feelings of vulnerability, or even a desire for revenge. Even in these situations, children might not show conscious and deliberate choice – rather they may become involved as a result of actual or threatened violence. In the world of child soldiers’ recruitment, the line between what is voluntary and involuntary is not always clear.

In application, the practice of recruiting and training a child soldier can be horrific. As one scholar describes it, transforming a child into a fairly effective combatant is “disturbingly simple” and generally involves straightforward brutality and abuses of the worst kind. Sometimes, these abuses are inflicted upon the child, and sometimes they are imposed upon the child’s loved ones in order to “encourage” the child to “volunteer”- and sometimes both. Regardless, the ultimate goal is to “foster a child’s dependency on an armed organization and inhibit escape.” To that end, the children may be forced to commit unspeakable horrors - perhaps even compelled to kill members of their own families, thereby stigmatizing the child and making it extremely difficult or impossible for him to return to his home community. Studies of recruiting child soldiers are replete with stories of murders, assaults, rapes, and torture – always with the aim of alienating the children and pressing them further into military service. Once recruited, these children can undergo a horrific initiation, which can consist of killing or raping a close relative and thereafter participating in acts of extreme violence, including beheadings, amputations, rape, and the burning of people alive.

Once these children are recruited and trained, their actions during combat can be equally horrific. Children can become obedient killers, willing to carry out the most dangerous and brutal assignments, after being psychologically weakened and made fearful of their commanders. They may even be given drugs and alcohol in order to alleviate their fears and enhance aggressive behaviors. In such cases, these child soldiers may be “more likely to violate the rules of war due to their diminished capacity to appreciate the consequences of their actions.”

As a result of being used in combat, child soldiers may suffer long-term effects, including multiple traumas and psychological scarring. Their burgeoning social development is seriously damaged, and if they ever return home, they are frequently rejected by their communities.

Tragically, the entire cycle may then repeat itself.

General Principles of International Law Regarding Children in Combat:
An Overview

Legal scholars have worked hard in response, and have gained significant ground in recent years. As one commentator has observed, “… the ban on recruiting children took root in the 1990s and has since blossomed … .”

Historically, the law of war has imposed certain obligations upon governments for the care of children, particularly in regard to how non-combatant children are treated during the conduct of hostilities. For example, the law of war has contemplated creating safety zones for protection of children, encouraging removal of children from besieged areas, permitting the free passage of food, clothing, and other supplies intended for children, and the like.

The 1977 Additional Protocol I to the Geneva Conventions specifically addressed the problem of children who actively participate in armed conflict, specifically requiring parties to:

“take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but have not attained the age of eighteen years, the Parties to the conflict shall endeavor to give priority to those who are oldest.”

In the eyes of some, this provision of Protocol I may only have been an initial step in the greater scheme of banning the practice of child soldiers altogether. The Protocol’s language is arguably rather weak; after all, it merely requires parties to “take all feasible measures” regarding persons under the age of fifteen, and to “endeavor” in regard to those between fifteen and eighteen. The United States is not a party to Protocol I, but it has generally supported the application of this provision.

The subsequent 1989 United Nations Convention on the Rights of the Child again condemned the practice of recruiting child soldiers, and largely reflected the terms of Protocol I. When recruiting persons between the ages of fifteen and eighteen, parties must endeavor to give priority to those who are oldest, but the Convention does not impose an outright ban on recruiting persons between those two ages.

Since 2003, the United States has been a party to the Optional Protocol to the United Nations Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. This agreement prohibits the compulsory recruiting of persons under the age of eighteen and demands that states take “all feasible measures” to ensure that persons under eighteen “do not take a direct part in hostilities.” Voluntary recruiting of persons under eighteen is permitted – a provision which mirrors United States domestic law and military practice. In that regard, the US military enforces policies which comply with the Optional Protocol regarding specific duties of persons under the age of eighteen who enter military service.

In the late 1990s, the Rome Statute establishing the International Criminal Court made “conscripting or enlisting children under the age of fifteen” and “using them to participate actively in hostilities” war crimes. This precise language is important; “conscripting or enlisting” seems to indicate that both practices - actively recruiting such children and passively permitting such children to serve - are forbidden, and violations of these prohibitions might result in an individual’s prosecution before international tribunals.

Perhaps the best-known prosecution regarding the use of child soldiers is before the Special Court for Sierra Leone – the case of Charles Taylor, the former President of Liberia. The Court was established in 2002 through an agreement between the United Nations and the Sierra Leonean government, and has indicted Taylor for a variety of offenses, including terrorizing civilians, murder, outrages on personal dignity, cruel treatment, looting, murder, rape, sexual slavery, mutilating and beating, enslavement, and using child soldiers. According to recent testimony from one of Taylor’s aides, children were attached to all Liberian military divisions in “Small Boy Units;” these units’ members ranged from 12 to 16 years of age, and one commander was reportedly only 10 or 11 years old. Taylor’s prosecution illustrates an important foundational concept in this area of the law -- prosecutions pertaining to the use of child soldiers focus primarily upon the adults who exploit child soldiers for their own benefit, and not upon the child soldiers themselves.

Relevance to Modern Militaries

Regardless of ongoing developments in the body of international law, the reality exists that modern militaries will encounter child soldiers on today’s battlefields. Child soldiery is a tragic fact of modern warfare, and preparation for meeting children in combat is vital. For example, US and Iraqi officials recently disclosed videos which had been seized from suspected insurgents. The videos depict masked boys waving guns and kicking down doors, and were apparently produced in an effort to recruit youth to join al-Qaeda.

In combat situations involving youthful combatants, it is important to note that children who are a part of a hostile force receive no special consideration or protection from attack that is based exclusively upon their underage status. If they are a member of an armed force, they may be targeted and attacked, just like their older counterparts. Children who are not members of an armed force are on par with other civilians, and they may risk being targeted if they engage in hostilities.

That said, engaging child soldiers is an extremely complicated proposition – for example, there are a multitude of issues stemming from military members being placed in the extremely difficult position of having to battle children. For example, engaging children in combat can have a devastating, long-term impact upon both the individual military member and unit morale. Additionally, in a media-saturated world where an individual military member’s actions can be publicly scrutinized literally minutes after an engagement, battling child soldiers can present a particularly tough public-relations challenge.

Persons who would use children in combat are fully aware of these difficulties for modern militaries. An al-Qaeda member recently openly discussed his organization’s intentions to use children in order to “[force American troops] to kill kids … which will bring shame on the American forces.” He predicted that “[t]he American forces will find it impossible to find a solution for this.”

To that end, P.W. Singer, a noted author in this area, advocates a list of suggested guidelines for use by modern militaries when confronting child soldiers. He recommends that modern militaries should focus intently on intelligence and force protection efforts that recognize the reality of child soldiery. He also notes the reality that combat units may require special post-conflict treatment if they engage a force made up of children – “akin to what police receive after shooting incidents.” Finally, he supports aggressive efforts to demobilize and rehabilitate child soldiers into their respective societies.

Questions for the Future

Future legal and policy questions in this area will provide for a curious intersection of modern international law, the traditional law of war, and juvenile justice. The answers will not be easy. For example, to the extent a child soldier engages in hostilities as a member of an armed force, should his actions be covered by combatant immunity? If that same child is not a member of an armed force, might he be criminally liable for his actions – just as an older civilian would be? Consider the case of Canadian-born Omar Khadr – a 21-year-old detainee at Guantanamo. When he was 15, Khadr was wounded and captured near a suspected al-Qaeda compound in Afghanistan; he reportedly faces murder charges based upon allegations that he threw a hand grenade which killed an American military member.

Additionally, future issues must address what – if any – legal mechanisms should be in place in order to punish child soldiers for wartime crimes committed while they are children. Answering this question will necessarily have to account for the deliberate psychological manipulations involved in the recruitment of children, any use of alcohol and drugs to control the children’s actions, and the precise impact of child soldiery’s horrific initiation practices. These efforts will also have to account for variances between cultures concerning the appropriate age to begin levying criminal liability.

As an overarching policy matter, if a given child is to be held criminally responsible, where should the law principally focus? That is, should prosecutorial efforts focus primarily upon punishment, deterrence, or rehabilitation of youthful offenders? If rehabilitation is the goal, what psychological/sociological services should be provided?

Finally, to what extent should international economic and diplomatic measures be brought to bear in order to end the practice? Alternatively, should we rely more heavily upon the possibility of individual criminal prosecutions in order to deter those who would enlist child soldiers?

Conclusion

As the basis of modern conflict becomes more complicated, so does the nature of the people and means used to carry it out. Arguably, child soldiers are but one particularly tragic manifestation of this phenomenon.

Ending the “era of the child soldier” will require a long-term, closely-coordinated diplomatic and economic effort by the international community, focused upon alleviating underlying global social pressures and assisting victims. Additionally, eradicating child soldiery will likely require members of the international community to focus intently upon deterrence, through aggressive efforts to identify and punish persons who would exploit children for their own violent ends.

True, child soldiery presents a difficult problem, with complex causes and uncertain numbers of hidden victims. However, the problem is also particularly urgent, and the international community must work together to end the practice. The logic is straightforward: when the youngest and most impressionable members of a society are brought into a cycle of destructive violence, long-term peace is almost certain to remain elusive.

Notes:

1. (The complete quote is “There is many a boy here today who looks on war as all glory, but, boys, it is all hell.” Union General William Tecumseh Sherman, speech at Columbus, Ohio, 1880.) Lamar Underwood, ed., The Quotable Soldier (New York, NY: The Lyons Press, 2000), 127.

2. P.W. Singer, Children at War (New York, NY: Pantheon Books, 2005), 15.

3. Timothy Webster, “Babes With Arms: International Law and Child Soldiers,” George Washington International Law Review 39 (2007): 229.

4. Singer, Children at War, 38.

5. “Many children are abducted to be used as combatants. Others are made to serve as porters, cooks, guards, servants, messengers, or spies. Many young girls are forced to marry or perform sexual services for male combatants. Male and female child soldiers are often sexually abused, and are at high risk of unwanted pregnancies and contracting sexually transmitted diseases.” U.S. Department of State, Fact Sheet: “The Facts About Child Soldiers,” Office to Monitor and Combat Trafficking in Persons, (Washington, D.C.: Department of State, 8 August 2005), http://www.state.gov/g/tip/rls/fs/2005/50941.htm

6. Nsongurua J. Udombana, “War Is Not Child’s Play! International Law and the Prohibition of Children’s Involvement in Armed Conflicts,” Temple International and Comparative Law Journal 20 (Spring 2006): 67-68.

7. U.S. Department of State, Fact Sheet: “The Facts About Child Soldier.,”

8. Coalition to Stop the Use of Child Soldiers, a group of six nongovernmental organizations, including Amnesty International and Human Rights Watch, http://hrw.org/english/docs/2001/06/12/global3006.htm, as cited in Nienke Grossman, “Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations,” Georgetown Journal of International Law 38 (Winter 2007): 325.

9. Ibid.

10. U.S. Department of State, Fact Sheet: “The Facts About Child Soldiers.”

11. Nsongurua J. Udombana, “War is Not Child’s Play!” 61.

12. Human Rights Watch, “Child Soldiers,” http://hrw.org/campaigns/crp/index.htm.

13. Nsongurua J. Udombana, “War is Not Child’s Play!” 69.

14. Nsongurua J. Udombana, “War is Not Child’s Play!” 62-63, citing Mike Wessells, “Child Soldiers: In Some Places, If You’re as Tall as a Rifle, You’re Old Enough to Carry One,” Bulletin of the Atomic Scientists, Nov 21, 1997, 32.

15. Nienke Grossman, “Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations,” Georgetown Journal of International Law 38 (Winter, 2007): 326, citing Ilene Cohn & Guy S. Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflict (Clarendon Press, 1994), 24 and 31-43.

16. Singer, Children at War, 57.

17. Ibid.

18. Nsongurua J. Udombana, “War is Not Child’s Play!” 69.

19. Ibid., 68.

20. Singer, Children at War, 80.

21. Nsongurua J. Udombana, “War is Not Child’s Play!” 68, and Singer, Children at War, 81-83.

22. Nsongurua J. Udombana, “War is Not Child’s Play!” 69.

23. US Department of State, Fact Sheet.

24. Webster, “Babes With Arms,” 227.

25. See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, http://www.icrc.org/ihl.nsf/WebCONVFULL?OpenView

26. Ibid., Article 14.

27. Ibid., Article 17.

28. Ibid., Article 23.

29. See generally, Major John Rawcliffe, “Child Soldiers: Legal Obligations and U.S. Implementation,” Army Lawyer, September 2007, citing the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 24 (addressing children under fifteen who become orphaned or separated from their parents); Art. 38 (granting certain rights to children under fifteen years); Art. 50 (providing for care and education of children during occupation); Art. 82 (addressing the internment of children together with their parents); Art. 89 (allowing additional food for interned children under 15); Art. 94 (addressing the education of interned children); Art. 132 (providing information on release, repatriation, return, or accommodation of interned children).

30. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Art. 77, http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions

31. Rawcliffe, “Child Soldiers,” citing Michael J. Matheson, “Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” American University Journal of International Law and Policy 2, (1987) 428

32. Convention on the Rights of the Child, Article 38, http://www.unhchr.ch/html/menu3/b/k2crc.htm (This provision requires parties to take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities, and to refrain from recruiting any person who has not attained the age of fifteen into their armed forces.)

33. Ibid.

34. The Optional Protocol is available online at http://www.unhchr.ch/html/menu2/6/protocolchild.htm.

35. Ibid., at Article 1.

36. See 10 U.S.C. § 505(a): “… no person under eighteen years of age may be originally enlisted without the written consent of his parent or guardian …”, http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000505----000-.html.

37. Rawcliffe, “Child Soldiers,” 4: (“[In the Army], [s]oldiers may not be assigned or deployed outside the continental United States, and if inadvertently sent overseas, must be returned. However, soldiers under eighteen may be assigned to or deploy to Alaska, Hawaii, and Puerto Rico, as well as to territories and possessions of the United States. … [In the Navy], [e]nlisted sailors may not be issued orders to report to an operational command prior to age eighteen. When practical, sailors under eighteen will remain in the training pipeline. If not practical to remain in the training pipeline, sailors under eighteen will be assigned to shore duty. … [The Air Force] will not assign airmen under eighteen to hostile fire/imminent danger areas. … [Marines] younger than eighteen years will not be assigned to units scheduled to operationally deploy, nor will commanders operationally deploy such Marines. However, Marines younger than eighteen may deploy for training or exercises. … [The Coast Guard’s] practice is to not assign recent basic training graduates to conflict areas or to cutters serving in those regions.)”

38. Rome Statute for the International Criminal Court, November 10, 1998, Article 8(2)(b)(xxvi) and 8(2)(e)(vii), http://www.un.org/law/icc/statute/romefra.htm.

39. See Human Rights Watch’s “Human Rights News: Questions and Answers on Charles Taylor's Trial Before the Special Court for Sierra Leone,” http://hrw.org/english/docs/2007/05/31/sierra16027.htm.

40. Unattributed, “Taylor Concealed Banned Weapons,” MSNBC.com, 10 January 2008, http://www.msnbc.msn.com/id/22595747/

41. Sudarsan Raghavan, “Insurgents Are Teaching Youths to Kill, U.S. Asserts,” Washington Post, 7 February 2008, 17.

42. See Rawcliffe, “Child Soldiers,” 5, note 45, for the proposition that there is no extension of special protection to underage combatants (citing International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 897-903 (Yvs Sandoz, et al., eds., 1987) and Michael Bothe, Et al., New rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, at 473-479 (1982) (noting that “a child below the age of fifteen who is in fact a member of the armed forces retains his combatant privilege and his entitlement to be a prisoner of war.”)

43. Rawcliffe, “Child Soldiers,” 5, citing Protocol I, Articles 43 and 50.

44. Ibid., citing Protocol I, Article 51(3) (which protects civilians “unless and for such time as they take a direct part in hostilities”).

45. Sudarsan Raghavan, “Insurgents Are Teaching Youths to Kill, U.S. Asserts.”

46. Ibid.

47. Singer, Children at War, 178.

48. Carol Rosenberg, “Witness Account Calls Young Guantanamo Prisoner’s Capture Into Question,” Miami Herald, 5 February 2008.

49. For a discussion of such issues, see Naomi Cahn, “The Mind of a Child: the Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law: Poor Children: Child “Witches” and Child Soldiers In Sub-Saharan Africa,” The Ohio State Journal of Criminal Law 3, (Spring 2006).

50. Consider, for example, the U.N. Standard Minimum rules for the Administration of Juvenile Justice (also known as the “Beijing Rules”), http://www.unhchr.ch/html/menu3/b/h_comp48.htm.

51. For a discussion of this developing issue, see Nienke Grossman, “Rehabilitation or Revenge” and internal references to the Convention on the Rights of the Child. Article 39 of the Convention provides that parties “shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and re-integration shall take place in an environment which fosters the health, self-respect and dignity of the child.” As noted above, the Convention is available online at http://www.unhchr.ch/html/menu3/b/k2crc.htm.


Contributor

Major Bryan D. Watson Major Bryan D. Watson (BA, JD, University of Missouri–Columbia) is a military judge, stationed at Randolph AFB, Texas. He presides over courts-martial, military tribunals, administrative boards, judicial investigations, and special hearings. In previous assignments, he has worked in the area of criminal law as both a prosecutor and defense counsel, including service as a special assistant US Attorney. He has represented the United States in various matters, including tort claims, procurement contracts, and labor/employment law, and has worked in the areas of international/operations law. Previous assignments include Moody AFB, Georgia; F. E. Warren AFB, Wyoming; Langley AFB, Virginia; and Maxwell AFB, Alabama. He is licensed to practice before the Supreme Court of Missouri, the United States Court of Appeals for the Armed Forces, and the Air Force Court of Criminal Appeals. Major Watson is a graduate of Squadron Officer School and a distinguished graduate of Air Command and Staff College, Maxwell AFB, Alabama.

Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.


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