It’s a good start to write documents and stuff, but it’s time to stop theorising and start doing work to end this.
—I., age thirteen1
The use of children as soldiers raises both the frequency and savageness of conflict. It makes conflicts easier to start, tougher to end, and more likely to recur. Even worse, the trend appears set only to magnify in the coming years. What, then, is to be done in response—before, during, and in the aftermath of children’s use as soldiers?
This chapter will look at potential ways to prevent and deter the practice of using child soldiers. In order to be effective, any effort against their use must seek to understand the doctrine behind it and see it for what it is. Child soldiering stems from a set of deliberate choices and strategies designed by leaders to gain from using children in war. By understanding the causes, as well as the resulting dynamics, more nuanced strategies can then be developed that attack the doctrine at its very heart.
At the global level, the underlying causes behind the rise of child soldiers include such overarching problems as world poverty, the lack of economic and educational opportunity for many of the world’s youth, and the spread of war and disease. There are powerful reasons for tackling these problems, regardless of the presence of child soldiers. However, their effect in pushing children into the realm of war makes serious action all the more important. Indeed, advocates working in these areas should contemplate linking their calls for action, now based exclusively on moral concerns, to the broader security concerns yielded by child soldiers. This will help them to make a more effective case.
To deal with all the varied issues of global distress requires both greater amounts of aid aimed at sustainable development and more effective and efficient responses by the recipients. The United States lags far behind the rest of the developed world in its aid to those less well off. It spends a far lower percentage of its budget on foreign aid relative to other prosperous states. Indeed, it gives the lowest in terms of the percentage of its national GDP of any industrialized country. Among the donors, the United States also has the worst record for spending its aid budget on itself; 70 percent of American aid is spent on U.S. goods and services. Finally, much of this aid is also directed at a limited number of strategic allies who are middle-income states, such as Israel, Russia, and Egypt, rather than to the worst-off areas of the world.2 When aid does go to conflict zones, it often follows the headlines, rather than seeking any sort of balance. For example, sufferers from the war in Bosnia received an average $238 in aid per person. At the same time, the Democratic Republic of the Congo (DRC) was suffering from a far more traumatic (over three million more died in the DRC than Bosnia) but lesser covered civil war/humanitarian crisis. It received only $3 in aid per person.3
The result is that a number of critical global needs get short shrift from the U.S. government. For example, AIDS is a grave threat that threatens to kill tens of millions over the next decade and undermine entire societies. It also cannot be beaten back on the cheap. Estimates are that an annual war chest between $7 billion and $10 billion is needed to fight its global spread, primarily to fund prevention programs around the world. Yet the international community is nowhere near that goal. Despite all the rhetoric, the U.S. government’s response has been insufficient, so far pledging under the Bush administration just around $500 million a year in actual funds to the battle.4 Similar low levels encompass such issues as support for education, refugees, and other aid to communities in need. Pertinent to child soldiers, it wasn’t until 2003 that the U.S. government made a dedicated effort toward this issue. Following a gala two-day self-promoting launch event held at a Washington, D.C. hotel ballroom, the Department of Labor helped fund a $13 million initiative along with the International Labor Organization, primarily targeting child soldier recruitment and rehabilitation in the DRC.5 It is better than nothing, but clearly insufficient to the global task ahead.
On the opposite side of the equation, it is equally appalling that the vast majority of developing states still spend far higher percentages of their national incomes on their (usually ineffective) militaries than on their own people’s critical needs in education and health. Many of these funds could be shifted toward the next generation of children and make a far greater difference in alleviating their social and economic problems.6 Donors should make this a condition of their aid grants.
Another global initiative that mandates action is dealing with the proliferation of small arms. A far more prudent strategy must be developed to help dampen the global spread of cheap and deadly weapons.
Here, too, though, the Bush administration is out of step with international consensus.7 While the international community has worked to clamp down on the illegal trade in light weapons, in recent years the United States worked at the opposite end. The saddest illustration of this was at the 2001 UN Conference on the Illicit Trade in Small Arms. Following intense lobbying by the National Rifle Association (NRA) leadership, the U.S. worked to counter any efforts to make international small arms sales more transparent (one doubts whether the group’s core members, who are hunters and sportsmen, would be pleased to support the spread of AK-47s to children abducted by warlords).8
The administration and NRA lobbyists (the U.S. delegation even had NRA board member Bob Barr attending the UN conference) have conflated domestic gun control issues with those of international relations. This is completely inappropriate, as none of these global efforts would have had any effect in limiting U.S. citizens’ constitutional right to legally own arms and serve in state militias, as laid out in the Second Amendment. Instead, these global efforts would have made the sale of machine guns and rockets to non-state actors, such as rebel and terrorist groups that arm children, more difficult. That the United States was joined only by China and the Arab League in this effort should have set off alarms to reassess this odd position.
In addition to helping make the international weapons trade more transparent and aboveboard, the United States and international community should make greater efforts to support (with both funding and technical assistance) local initiatives that seek to control or reverse small arms proliferation. One example is the setup of weapons collection programs in post-conflict states and those at risk of conflict. Such pilot programs have been fairly successful in Albania and El Salvador and could work elsewhere.9
However, problems of global development and violence are broader issues that merit their own library’s worth of study. The issue of child soldiers warrants action along a number of more specific lines as well. In particular, the norms against child soldiering have been proven to be insufficient. While most efforts have focused on raising awareness of child soldier issues and bolstering the laws against it, they have yet to make a real dent against the popularity of the doctrine. Stigmatization of those groups that utilize children in this manner must be backed up with real punishments that change their leaders’ calculations.
Recently, in the academic literature that studies international relations, many experts have written about the importance of beliefs about right and wrong in shaping policy. They claim that beliefs shape actions, even when they go against one’s interests.10 Such socially directed behavior is described as being guided by a “norm,” or what anthropologist Paul Bohannan describes as “a rule, more or less overt, which expresses ‘ought’ aspects of relationships between human beings.”11
This research about the power of beliefs extends into the military realm. Many have argued that “norms” about what is proper and improper behavior on the battlefield still matter today. They argue, for instance, that norms have limited the use of certain weapons that many states might find advantageous, but are horrific in consequences. Two examples are chemical and biological attacks, which might have been quite useful in recent wars, but were considered so horrible in World War I that the vast majority of nations have since held back. Most recently, activists have tried to harness this type of thinking by advocating the outlawing of such weapons as the anti-personnel land mine.12
The word “norm” can have two meanings, though. It can describe ethical beliefs about what is right behavior, but it can also describe the standard or most common practices of behavior, irrespective of ethics.13 Thus, while people writing about norms in international relations have focused on the positives of how ethics direct people toward good behavior in warfare, they have ignored the second aspect. Little has been written about the darker side of social behavior in warfare, the buildup of new beliefs and most common practices. These new standards prescribe malicious behavior instead.
As discussed in Chapter 1, the past decades of warfare have seen the breakdown of moral codes that guided behavior in war. This has led to increasing savagery toward the innocents in war, ranging from civilians in general to children in specific. Yet little of the new literature on norms deals with what to do about it. Likewise, the role of non-state actors in developing norms that direct common practice has also been incorrectly assumed by most analysts to be only positive.14 Being apart from the state is no guarantee of good behavior. For every positive nonstate actor, such as the global campaign to eliminate land mines, there has been a non-state one that lacks a moral core, such as the Lord’s Resistance Army that abducts and enslaves children.
As explored in Chapter 3, the most basic ethical injunctions against using children in war collapsed in a rapid fashion. Their failure was influenced primarily by technological and geopolitical changes, with the result that children are now regular actors on the battlefield. This indicates that the durability of ethical norms in the face of external forces is far less powerful than believed. If ethical norms are not self-sustainable, their power is limited. It also reinforces the argument that, while common behavioral practices are often grounded in moral principles, their strength is influenced by the very real contextual factors of their environment that determine their efficiency, risk, and reward.15
This weakening of constraints may be particularly strong for nonstate armed groups; for them, moral norms are less likely to shape their interests. This is much in line with the camp of “realist” thinkers in the international relations literature, who feel that beliefs have no great role in politics. Instead, they believe that actions are always best explained by power and interests. However, there is one important caveat to this sort of argument. The irony is that, while the rise of norms may be due to the power and interests of the strongest actors in the system (whom the realists exclusively focus on), the normative breakdown in this case was due to the innovations of some of the weakest actors in the international system. In fact, it was because of their very weakness that such groups chose to violate the old norms against using children. Much like the way terrorist groups have brought back the possibility of chemical and biological weapons actually being used, so, too, with child soldiers have the weaker parties set a new standard of behavior in contemporary warfare.
Regardless of where one falls in the debate over the influence of norms, there is no doubt that the practice of using child soldiers violates widely accepted international beliefs about proper behavior. The human rights abuses involved, which range from abduction and rape to torture and murder, shock the conscience. Moreover, they violate the most elementary principles of international humanitarian law. Hence, the challenge is to turn the international consensus against the use of children as soldiers into action; in a sense return a failing norm—the old belief that children had no place on the battlefield—to a reality.
The practice of the last four millennia of warfare, in and of itself, makes a strong case for customary international law’s proscription against child soldiers. Furthermore, the twentieth century saw a range of treaties emerge that codified international law’s standing against the use of children in combat. These include:
• 1924 League of Nations Declaration of the Rights of the Child;
• 1948 United Nations Universal Declaration of Human Rights;
• 1949 Geneva Conventions;
• 1950 European Convention on Human Rights;
• 1951 Convention and 1967 Protocol Relating to the Status of Refugees;
• 1966 UN Covenants on Civil and Political Rights and Economic, Social and Cultural Rights;
• 1969 American Convention on Human Rights;
• 1977 Additional Protocols to the 1949 Geneva Conventions;
• 1981 African Charter on Human and Peoples’ Rights;
• 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• 1989 UN Convention on the Rights of the Child;
• 1990 OAU African Charter on the Rights and Welfare of the Child.
Of these, the 1989 Convention on the Rights of the Child was perhaps the most notable, and certainly most representative of global consensus. Indeed, it was the most quickly and widely ratified international treaty ever, with more than 190 state signatories. In its article 38, the convention pushed governments to take all feasible measures to ensure that children have no direct part in hostilities.
Despite this deep body of international law against the practice, the child soldier doctrine spread widely in the 1990s, in all the ways outlined in the previous chapters. The response by the international community, though, was to condemn the practice and codify the use of child soldiers as a specific violation of the law. The United Nations also created an office of the Special Representative of the UN Secretary General for Children in Armed Conflict to investigate and lobby for children’s rights in warfare. This position is now held by a former Ugandan diplomat, Olara Otunnu.
The major impetus behind these efforts was a group of concerned nongovernmental organizations (NGOs) from all around the world, united under the umbrella of the Coalition to Stop the Use of Child Soldiers. The coalition was formed in May 1998 by six leading NGOs: Amnesty International, Human Rights Watch, Save the Children–Sweden for the International Save the Children Alliance, Jesuit Refugee Service, the Quaker United Nations Office–Geneva, and International Federation Terre des Hommes. Over the next years it built up a global network of interested NGOs, aid agencies, research institutes, and other linked coalitions that were willing to stand against the use of child soldiers.
A major part of the coalition’s strategy was to build a consensus and enact treaties against the practice of child soldiering from the state and regional level first. In this it was quite successful, eventually mobilizing campaigns in more than forty different countries. These efforts resulted in a series of regional agreements that encompass much of the globe, including:
• 1996 OAU Resolution on the Plight of African Children in Situations of Armed Conflicts;
• 1997 The Capetown Principles;
• 1997 Declaration by the Nordic Foreign Ministers Against the Use of Child Soldiers;
• 1998 European Parliament Resolution on Child Soldiers;
• 1999 Berlin Declaration on the Use of Children as Soldiers;
• 1999 Montevideo Declaration on the Use of Children as Soldiers;
• 1999 Maputo Declaration on the Use of Child Soldiers;
• 2000 OAS Resolution on Children and Armed Conflict;
• 2001 Amman Declaration on Child Soldiers.
In its push for international condemnation of the practice, the group met with great success. In 1999 the UN Security Council adopted Resolution 1261, which condemned the targeting of children in armed conflict, including their recruitment and use as soldiers. In 2000 the United Nations General Assembly adopted an Optional Protocol to the Convention on the Rights of the Child, which dealt with the involvement of children in armed conflict (see Appendix). This protocol amended the 1989 treaty significantly, in order to better deal with the child soldier issue. Its major aspects were to raise the age from fifteen to eighteen at which direct participation in armed conflict would be legally permitted (there was some dispute on this among the various treaties), ban compulsory recruitment of any child under eighteen, and explicitly include non-state actors under its coverage. With intense lobbying, the treaty was quickly adopted. By 2003, the treaty had been signed by more than 111 parties and ratified by 50.
Thus, as a result of the efforts of the Coalition to Stop the Use of Child Soldiers and other international actors, the ethical norms against child soldiering have been buttressed by a series of international regimes. The UN special representative, Olara Otunnu, has also made a direct attempt to get conflict groups to stop using children, meeting with rebel group leaders in more than twenty countries to negotiate their end of the practice. In January 2003 the treaty was followed up by UN Resolution 1460, which called on specific child soldier groups in five countries (Afghanistan, Burundi, DRC, Liberia, and Somalia) to halt the practice and provide the Security Council with a report on the steps they have taken.
Ethical norms are clearly important in providing the standards that are intended to guide behavior. Proponents of the legal effort against child soldiering point to five key strengths of this activism: (1) it established an international standard on the employment of child soldiers, (2) codified legal norms, (3) set minimum age requirements that are more difficult to fabricate, (4) encouraged states to implement the laws, and (5) raised public awareness, both in the West and in areas where the child soldier groups were active, potentially empowering greater activism.16
However, we should not confound ethical norms with actual behavior or enforcement. Unfortunately, all this international attention and condemnation of child soldiers did not translate into an end of the practice. Throughout the process, the use of child soldiers on an international scale did not diminish, but instead spread still further. Indeed, many of the same countries that signed the various treaties continued to flout their obligations. This is evidenced by the fact that while there are more than one hundred signatories, child soldiers are still present in roughly eighty-five countries. Indeed, some of the largest known users, such as the various child soldier groups fighting in Colombia, Myanmar, and Uganda, were not even on the specific Resolution 1460 list released by the United Nations in early 2003. When the UN Security Council took up the issue in January 2004, child soldiers in these and other conflicts (such as in Chechnya, Nepal, and Sri Lanka) were yet again not on the agenda.
Moreover, few of the rebel groups using child soldiers have been swayed by either the new protocol or by the meetings with Otunnu. The typical pattern is that, after some period of public denial, these groups would make a pledge to stop the use of child soldiers in an effort to garner international goodwill and aid. Their practices would be little altered, though. For example, despite multiple meetings with the United Nations and multiple public pledges to stop over the last decade, the LTTE has continued to conscript children seventeen and under. This continued even after a cease-fire took hold in Sri Lanka in 2003. Indeed, in the six months since the latest LTTE pledge not to use or recruit child soldiers, UNICEF received 1,370 complaints of child soldier recruitment, primarily from parents whose children had gone missing.17
Similar discrepancies between pledges made to the United Nations and ensuing practice have occurred with UNITA in Angola, the FARC and ELN in Colombia, ALIR in Rwanda, SPLA in Sudan, the Kamajors in Sierra Leone, Lal Sena in Nepal, the DRC government and its rebel opponents in the DRC, NPA and MILF in the Philippines, and the Taliban in Afghanistan, to name just a few. For instance, one rebel group in the DRC made a pledge not to use child soldiers in February 2001. Just a few weeks later, it had a ceremony to celebrate its recent military training graduates. More than eighteen hundred were between the ages of twelve and eighteen.18 Over the next two years, the reported rate of child soldier recruitment picked up pace in some provinces of the DRC.19 Likewise, among terrorist groups, both Hamas and Palestinian Islamic Jihad have publicly disavowed the use of children, only to later renege.20
Indeed, the only change for some groups as a result of this growing lobbying effort against child soldiers was simply to deny or try to better hide the practice. For example, when they first entered the Afghan civil war in 1994, the fundamentalist Taliban recruited mainly among young Afghan refugees attending Pakistani madrassahs. Following international pressure, the leader of the Taliban, Mullah Omar, issued a public decree in 1998 that any of his followers who had not yet grown a beard were too young and should leave the force, with any commander using child soldiers facing punishment. Just one year later, the United Nations reported that Taliban offensives were using between two thousand and five thousand children bused over from the religious schools, many pre-adolescent.21 Likewise, RENAMO in Mozambique steadfastly denied its use of children throughout its war with the government. At the war’s end, though, many of its marchers in demobilization parades were children, including one sixteen-year-old who had been fighting since he was eight.22
Other groups play the public relations game and carry out child soldier demobilizations, but only in a token manner. For example, in 2001, the RCD–Goma group in the eastern Congo set up a “commission” on the demobilization and reintegration of child soldiers. However, only the most sickly or difficult recruits were released.23 In 2003, it made another promise to the United Nations to release its estimated 2,600 child soldiers. However, when it came time to demobilize, only 104 child soldiers (4 percent) were released.24 Most recently, the group has moved its training camps to less accessible regions to minimize even the token interference from outside observers. Similarly, the SPLA had a large public ceremony in 2001, releasing 3,500 claimed child soldiers to great fanfare in front of the UN and international media. Of course, most of the children were later reported to have not been child soldiers to begin with (the real underage fighters were elsewhere) and the organization soon admitted having close to another 10,000 still within its ranks.25 Perhaps the most bizarre example of this denial strategy is the LRA. A group that almost single-handedly exists through its abductions and use of child soldiers created a Web site that denies the practice.26
The result is that, while at least most groups no longer publicly extol their recruitment of children, the doctrine behind child soldiers has continued to spread around the globe and children are more involved in warfare than ever. Hence, the efforts can be lauded on the awareness side, such that these groups’ recruitment of children is no longer as much a point of pride (for example, the now defunct FMLN in El Salvador once complained that it was left out of an article in Time magazine about child soldier groups), but they are clearly lacking in their ability to alter actual practice.27 As even the Coalition to Stop the Use of Child Soldiers writes, “Remarkably little progress has been made in ending the use of child soldiers and some violators have even increased their recruitment of children.”28 For those wondering why this is so, a useful data point might suffice: despite directly working on the issue since 1996, the United Nations and the broader international community have yet to take one single formal action beyond condemnation of known child soldier recruiters and users, including those who have directly lied about it. The axiom that talk is cheap was never more true than when it comes to child soldiers.
There are a number of simple actions that can be taken to make the practice of using child soldiers more difficult. These include support for expanding the availability of birth records to help children and families become better able to document ages (many children are swooped up because they cannot legally prove that they are underage), and aiding local nongovernmental organizations and religious and community leaders, who can make appeals against the practice on the basis of local values and customs. Aid agencies and NGOs can also help distribute the aforementioned international agreements throughout child soldier zones, to help spread the word that the practice is illegitimate and that the international community condemns it. Another area is to reach out to particular at-risk groups, such as refugees and street children, to counter the propaganda that often tricks them into volunteering. However, these efforts simply to spread the news of treaties have been and will continue to be insufficient.
The crux of the problem is that groups deciding to adopt the child soldier doctrine have never been ignorant about whether it was the ethical thing to do or confused about what exactly was allowed under international law or norms of proper behavior. The codes against using children as soldiers have been around for thousands of years. Groups that have brought children into warfare know that they are violating a moral code. As just one illustration, the LTTE has one of the most systemized approaches in its execution of the child soldier doctrine. However, even this group makes a point to omit the dates of birth on the headstones of its child soldiers, knowing that the historic judgment of its use of these children would not be kind.29
Those who use child soldiers are, by definition, willing to ignore and transgress already long-standing ethical norms and will unlikely be swayed by new ones. Those who are willing to round up children, send them into battle, and often force them to commit rape and murder are simply unlikely to be persuaded by moral appeals. To put it another way, one cannot shame the shameless.
Governments and groups interested in preventing the practice of child soldiering must realize that the employment of children as soldiers reflects the use of a well-planned doctrine, resulting from conscious and deliberate decisions taken by adults. Unless the real calculations and conditions that led to this choice are altered, the prohibitions against child soldiering will be as empty and continually violated as the new, largely symbolic prohibitions against land mines. They will still be used in large numbers. In short, making laws is not the same as finding ways to enforce them.
This realization may be a splash of cold water on the global activist movement against child soldiering, but all is not hopeless. Indeed, there are a number of possible, and not overtly arduous, steps that can be taken to turn the ethical norms against child soldiers back into standard practice. Each represents true possibilities within the realm of policymaking; in general, they lack only the requisite level of attention and political will, each of which can be mobilized.
The first feature of a program to weaken the practice of child soldiers is that it must be smart and judicious. Any effort to stop a global practice inherently faces an uphill battle. Thus, it is better to try to make the biggest difference in children’s lives where possible. One aspect of this is to focus on the worst abuses, as a shrewd use of the limited political capital and attention at hand. While all uses of children under the age of eighteen as soldiers are wrong, not all are equal.
The groups working to stop the use of child soldiers are motivated by noble ideals, but too often they have been distracted by other political agendas. Thus, they have often squandered their valuable energy and capital. This lack of focus has hampered efforts so far, and often backfired. As an example, while it is a positive that an international coalition has been built, anti-American prejudices are too often allowed to misdirect its underlying mission to stop the use of children as soldiers.
For example, the Coalition to Stop the Use of Child Soldiers has wasted its political capital by engaging in a long-drawn-out public relations war with the U.S. and British governments. If the group had been more strategic in its thinking, these global powers could have been among its leading supporters. The crux of the dispute was over the presence of a small number of seventeen-year-old recruits in their forces who had volunteered with parental permission (00.24 percent of the U.S. military). While this practice may not be agreeable to all the varied members of the coalition, all can agree that it is certainly not the same as the LRA abducting children and forcing them to slaughter their own families. Despite this, the group made it a focus of its lobbying efforts. Its annual report listed the two practices as equivalent abuses under the same heading.30
If the underlying intent is to aid those children most in need, such verbal jabs at the United States and Britain have been completely wasteful and generally backfired. The groups have created instant opposition among those in the policymaking establishment who can do the most to help, and wasted the limited political capital they have on the least egregious acts. The result was that the coalition developed an adversarial relationship with the U.S. government, in particular the Defense Department. It led to the United States delaying ratification of the treaty until the end of 2002, and, more importantly, cost the group the world superpower’s potential influence on the cause’s behalf.
Yet, the saddest part may be that this feud was all needless. At the end of the day, U.S. law is already so protective of children and parental rights that the various treaties changed little. For example, of the fourteen hundred U.S. military personnel who were under eighteen and assigned to active units in 2002, only forty-five were assigned to units overseas. The essential reason is that while seventeen-year-olds may join the U.S. military upon their high school graduation, by the time they make it through boot camp and then advanced skills training, they will be past eighteen.31 A compromise has been worked out (these small numbers are prohibited from entering into combat), but valuable time was lost. Relations with the military community certainly need to be shored up as well, as there are many common interests.
Instead, the focus of groups working to stop the use of child soldiers should turn from standard setting and borderline issues to tackling the heart of the matter. If the advocacy community hopes to make an ultimate difference, it must enact a strategy toward changing the present practices of those most offensive abusers of children and deterring those who would consider so in the future. In order to accomplish this, it must move from moral excoriation to actually changing the political and economic calculations that lead to the use of children. In military parlance, if it wants to beat child soldier users, it must get inside their “decision cycle.”32
Groups choose to use child soldiers not by accident or ignorance, nor are they motivated by pure malice. They have underlying interests, and have deliberately set up special processes for the recruitment, indoctrination, and utilization of child soldiers because they believe they will draw certain advantages from the practice. It is these calculations that must be altered if the overall doctrine of child soldiers is to be defeated.
One potential strategy is a program designed to criminalize the doctrine. The legal transgressions involved in child soldiering are almost too numerous to make an exhaustive list. They are so self-evidently against the laws of war, and have been so for over four millennia, that to claim otherwise is pointless. Indeed, as one expert notes of child soldier commanders in the DRC, “They know it’s a war crime, but they seem to believe they’ll never be brought to justice. There is a sense of rampant impunity.”33 The problem is that, so far, these commanders have been right.
Given the number of treaties and legal compacts that this practice violates, there is no need for additional international law in this area. Rather, what is needed is that the full measure of international law be applied to those leaders who adopt the child soldier doctrine. This would take away the overwhelming sense of impunity under which they now operate.
Two legal pathways offer hope in this area. They both entail treating the use of child soldiers as a war crime, in and of itself, and prosecuting the leaders behind the practice for the explicit recruitment and use of children. Their underlying rationale would be to set a legal precedent that connects the practice with punishment. The focus on the doctrine as a war crime, rather than the abuses that result, would also lower the bar for prosecution. That is, the widespread presence of child soldiers within an organization would be fairly easy to prove, compared to the current higher burdens of proof that leaders must be aware of acts of atrocity by their soldiers. For example, leaders of the RUF may be able to distance themselves from certain massacres by saying they were elsewhere or didn’t know of the actions committed by their subordinates. But it would be impossible for them to claim ignorance of the fact that the majority of their soldiers were underage.
Moreover, the criminalization of the practice would make it binding on other states to turn over any leaders who have escaped across state boundaries. This would also apply to their assets, which might have been acquired as a result of using child soldiers. It is also important to note that non-state groups do not escape the jurisdiction of these laws either. Like all governments, they are both bound by the basic principles of international law and required to respect all four Geneva Conventions, even in internal conflicts.
The first means for carrying out such a program is through the ad hoc international tribunals that are often established in response to egregious conflicts. The most recent is the war crimes tribunal in Sierra Leone. Prosecuting former leaders of the RUF and the Civil Defense Force (CDF) who are now in custody, not just for various war crimes but for the specific crime of recruiting and using child soldiers would be an important first step. The means would then be as much of an offense as the ends. It would clearly establish the criminality of the practice and the costs that might follow. Some have argued that pro-government leaders such as Sam Hinga Norman should be granted immunity because they fought on the “right” side, but this does little to excuse their use of the wrong means, child soldiers.
As with many woefully underfunded international initiatives, these ad hoc courts also merit greater support from the donor community. The Sierra Leone court’s budget has already been cut from its originally estimated needs of $114 million to $57 million. Funding for its future remains uncertain.34 The donor community should increase its level of support, with the proviso that the court uses its special position as a mechanism to open new ground in the battle against child soldiers. The court may also consider its potential means to prosecute foreign facilitators of the child soldier practice in Sierra Leone. These include prosecuting now exiled Liberian leader Charles Taylor, as well as those who dealt with him, for using child soldiers. Any amnesty offers for such leaders in the interests of peace must be weighed against the signal of impunity in using child soldiers that they reinforce.
So far, the ad hoc tribunals have been geographically centered, focusing on individual conflicts, such as in Rwanda, Sierra Leone, and the former Yugoslavia. However, their scope has not been limited by state borders. For example, the tribunals have indicted and sought war criminals who took refuge outside the countries of their original jurisdiction. This provides the potential for a new mode in the use of ad hoc tribunals. One idea that merits exploration is the UN Security Council convening a new issue-centered tribunal, in this case one that would tackle the international child soldier problem. Such a tribunal would be structured in the same way as the previous courts. However, it would differ in its target, seeking out offenders regardless of the specific conflict in which the crime was committed. Admittedly, such a new direction for ad hoc tribunals would be highly controversial. It would likely meet only with approval if the crime was widely agreed upon and met with incontrovertible proof. International opprobrium against the use of child soldiers and the investigative evidence already gathered by the United Nations on the issue could provide such an opening.
The second avenue for building legal deterrents against the use of the child soldier doctrine would be through the more permanent structure of the International Criminal Court (ICC). Signed by 139 countries, the court seeks to establish a global system of punishment for those who violate the rules of war and are not punished by their own countries. In particular, the court has jurisdiction over the use of child soldiers in both international (article 8 [2] [b] [xxvi]) and noninternational armed conflicts (article 8 [2] [e] [vii]).
Unfortunately, the United States, along with its unlikely allies of Saddam Hussein’s Iraq and China, decided to pull out of the treaty that set up the court. It has also worked diplomatically to undermine the court’s authority. It has advocated against it with weaker, developing world allies and set up a series of bilateral agreements that exclude its own citizens from coverage; those that don’t sign are threatened with being cut off from aid. The concern of some in the United States was that the international court would somehow run rampant over U.S. law and that American soldiers might be targeted for politicized prosecution for war crimes (as was once threatened under Belgian universal jurisdiction laws).
This concern has been greatly overblown and is more reflective of a general, unfounded suspicion of international institutions among a minority in the U.S. body politic. In short, international law is about capturing and punishing evil leaders who would otherwise get away, not about railroading soldiers doing their duties. The United States and its allies would play a key role in selecting both the ICC’s judges and its prosecutors, giving them a way to guarantee the court’s professionalism for themselves. In addition, there are a number of procedural standards in the court’s bylaws that would make politically motivated prosecutions nearly impossible. Respect for domestic laws is at the basis of all the court’s bylaws, such that as long as a nation followed its own laws in the investigation of suspected crimes (which the United States would hopefully do), the international court would have no means to intervene.
Thus, an American agenda to counter the prosecution of war crimes is a shortsighted policy. More importantly, it runs counter to the strategic goals that American foreign policy has held for much of the last century. The United States once sought to build international institutions as a means of extending global justice, peace, and stability. More recently, it has sought to tear them down. Benjamin Ferencz, one of the last surviving American military prosecutors at the Nuremberg trials, is among those who worry about how the ideals that won World War II are being lost. Speaking at the opening of the ICC, he noted, “The current leadership of the United States seems to have forgotten the lessons that we tried to teach the rest of the world.”35
Without U.S. support, however, the court will be hamstrung, as the absence of the world’s leading power will weaken its influence. Given the benefits of establishing accountability and ending the impunity of war criminals, the United States would do well to reconsider its abandonment of international legal institutions. This will not only help ensure the punishment of those who abuse children, but also return the United States to its noble, decades-long tradition of leading international institutions, rather than undercutting them because of the overblown fears of a few conspiracy theorists.
The United States, as well as other members of the international community, should also support modifications to the ICC that will allow it to become a more effective tool in combating the use of child soldiers. For example, amendments might be made to the court’s rules in order to allow children to testify before the court (so direct sufferers can bring the practice to the fore). Consideration should also be given to convening the tribunal in cases that do not respond directly to the aftermath of specific wars, but rather indicts and prosecutes those presently using child soldiers around the globe. If a war crime is ongoing, there is no rationale to wait for its termination. The leaders of twenty-three warring groups that have been found by the United Nations to be using child soldiers, as identified in the secretary general’s report pursuant to Resolution 1460, would be an excellent starting point.
The purpose of this program of criminalization would be to affect the decision calculus behind the use of child soldiers. The use of children as a weapon of war would be made like the use of chemical or biological weapons—simply unacceptable to the entire world, under any circumstances. Those groups that consciously choose to transgress international law would then open themselves up to the risk of prosecutions, sanctions, and asset seizures. Such prosecution must be judicious enough to limit their focus to those who were in leadership positions, either politically or militarily, and not waste time and effort on followers. The idea behind criminalization and prosecution is not revenge but deterrence.
A difficult question in either the tribunals or the ICC is whether to prosecute children who committed mass atrocities while serving in a conflict. Besides the fact that they are children, many were abducted, abused, and often forcibly put under the influence of drugs. When determining punishment for criminal behavior, there is a general recognition that, as once expressed by Florida governor Jeb Bush (brother of the U.S. president), “There is a different standard for children. There should be some sensitivity that a 14-year-old is not a little adult.”36 Likewise, the U.S. Supreme Court has ruled that capital punishment is not an option for those under the age of sixteen, as they lack the proper judgment skills to be held accountable as adults.
This ruling should also be kept in mind as the United States seeks to determine what to do about underage detainees, such as those it is holding at Guantánamo Bay. They may have been found to be “illegal combatants” by the United States, but it would behoove the United States to follow the spirit of the laws in their treatment and punishment, even if it thinks it is not so required. For example, Secretary of Defense Donald Rumsfeld has stated that “these are not children,” and thus can be treated in the same manner as adult detainees. However, both national and international law, as well as general public sentiment, find that he is simply wrong.37
Regardless of their crimes, those under eighteen are different from adults on a wide range of emotional, physical, social, political, and legal levels, and should be held in separate areas until the courts are able to determine their guilt and punishment. At the end of the day, though, what defines a child and how to hold them in prison is simply not a decision that the secretary of defense ought to be making. Likewise, while the U.S. military has bent over backwards to treat its young prisoners well (the juvenile detainees under age sixteen at Camp Iguana lived in a compound set on the beach, complete with a TV room to watch videos—The Call of the Wild and Castaway being reported favorites—and a playing area for volleyball, soccer, and bocce), the business of running a youth prison is not good for the U.S. military itself.38 The most apt solution is to turn these children over to their home state governments, with arrangements set in place to ensure their rehabilitation and prevent re-recruitment.
The guilty can be prosecuted. They should be taken to court, and let them explain what happened. Thinking about the part I’ve played, I’m thinking I may be liable to appear in court.
—A., age fourteen40
The same considerations hold even when dealing with horrible war crimes. The goal of deterrence is secondary with child soldiers. The needed factors of intent and awareness of the consequences are not the same for child soldiers or for future recruits. International legal norms also find that criminal responsibility may be excluded in cases where there is duress by threat of bodily harm or death or where atrocities were committed under the influence of intoxication, both of which are often the case with child soldiers.39
The strategy recently adopted in Sierra Leone toward child soldier perpetrators seems the one best suited both to serve the interests of the victims and promote long-term stability and societal recovery. While the statute of the special court does allow for the prosecution of those between the ages of fifteen and eighteen, the prosecutor has not taken such action yet, instead focusing his efforts on the adult leaders. Children implicated in particularly heinous crimes are given hearings in special closed juvenile chambers (to keep their identity secret) as well as psychological counseling and other forms of assistance. They are not sentenced to prison with adult perpetrators, but placed in special custody, rehabilitation/demobilization programs, and foster care. This response seems to best recognize the unique war crime that is child soldiering, where the perpetrators are also the victims.
Building a system of deterrence, including criminalization of the overall doctrine, also produces a greater menu of indirect but still tangible actions that can be taken against those who use child soldiers. Criminalization also allows activists to use domestic courts to press countries to adhere to their own legal standards and hold the UN’s feet to the fire when it countenances agreements with known child soldier users.
First, criminalization would make less tenable the split policy toward children and war that many states now have. A number of states do not directly use child soldiers, but still serve as primary suppliers of aid and weapons to those groups and states that do. These include many signatories to the treaties banning child soldiers. One example is the military and economic support given by China, Malaysia, India, and several western European states to Sudan. Another is the military training and assistance given to endemic child soldier users such as the RCD group next door in the DRC by Rwanda and Uganda (which in turn receive millions of dollars of aid from U.S. and British taxpayers).41
Establishing the doctrine itself as a war crime would make such policies more difficult to support, as states would be less willing to associate themselves with indicted war criminals, either directly or indirectly. It would also provide new means for external actors to seek to pressure these governments to stop. The removal of these support structures could provide a valuable mechanism to convincing groups and governments that it is no longer to their advantage to utilize children in combat.
Criminalization would also provide a new impetus to the priority of limiting the small arms trade to non-state actors. The easy availability of weapons and their low cost make the entire child soldier doctrine possible. In many cases, this will involve the simple targeting and seizure of illicit arms dealers, who are often well known to authorities, as well as their assets.42 Other priorities that can be connected to helping with enforcement include the destruction of surplus small arms and better stockpile management.
Of particular note is that the United States is both a signatory to the various legal regimes against child soldiers and has often given aid to victims of war, including children (for example, the United States provides millions of dollars in aid to displaced children and war victims in places like Afghanistan, Angola, Croatia, DRC, Mozambique, and Uganda). Since 1995 it has also spent $230 million to fight international child labor practices. However, at the same time, it has often turned a blind eye toward the use of child soldiers by its military trading partners. Over the 1990s it averaged an annual transfer of a quarter of a billion dollars of military weapons and training to state armed forces that used children sixteen and under and another quarter of a billion dollars in foreign and commercial military sales. These erring partners ranged from Colombia to Rwanda.43 With the expansion in military aid as a result of the war on terrorism, these figures are expected to grow.
In the United States, activists already have legal means available. To remain in accordance with the Leahy amendment, American military training is forbidden to foreign units found to be human rights abusers. A focus should be made to ensure that the use of child soldiers is included in this screening.
The use of fair labor laws may be another avenue for an indirect means to enter the decision cycle of child soldier groups and alter their calculations. The International Labor Organization (ILO) has long defined child soldiering as one of the worst forms of child labor, and even lists it as a form of effectual slavery over abducted children. In 1973, in the ILO Convention 138, it determined that eighteen was the minimum allowable age for participation in hazardous labor—and if serving as a soldier is not hazardous, then nothing is. It elucidated on this in 1999, with ILO Convention 182, determining that forced or compulsory recruitment of anyone under the age of eighteen is not permissible under international labor law.
Those groups that use child soldiers should be treated in the same manner as other international actors that violate these most basic labor standards. Activists would do well to move from pressing the formation of new international agreements to seeking to exact real costs on violators based on existing ones. The strategies of stigmatization, boycott, and lawsuit are worth exploring. These have been used fairly successfully in the anti-apartheid and anti–child labor movements. Mere threat of their imposition has also helped convince multinational clothing, chocolate, and mining firms to adhere to greater human rights–monitoring standards.
A particular tactic would be to target the trading partners of states and groups that follow such practices. Indeed, the problem of child soldiers is most acute in countries that are rich in natural resources and often driven by groups that seek to gain riches by dominating trade in these resources with the international system. Examples include Charles Taylor’s takeover of the timber and rubber trade in Liberia and the RUF’s attempts to control the Sierra Leone diamond trade during the West African wars. During this period a lucrative trade was conducted by a series of French, Belgian, Chinese, Taiwanese, and Turkish businesses, whose funds fueled both the fighting and the use of child soldiers. A significant portion of this trade eventually ended up in U.S. markets.44 Similarly, some eighty-five Western corporations are thought to have been involved in the illegal trades connected to the war in the Congo, where child soldiers are present.45
Given that the leaders of child soldier groups are unconcerned with morality and are often beyond legal controls, the ethical appeals made to them may be aimed at the wrong ears. Instead, their trading partners, upon whom such leaders depend for their riches, may be the weak link upon which to focus. In these zones, external economic actors such as multinational corporations often have dominant influence with both the state and local armed factions. They are also often complicit in paying for protection from groups with child soldiers.46 As the quickly revised practices of such corporate giants as Coke, the Gap, and Nike illustrate from the child labor and apartheid boycotts, businesses might be more vulnerable to outside pressure than governments. They are often more concerned with negative public exposure and the underlying threat of lawsuits and global boycott. Their potential greater sway on local actors should thus be leveraged.
One potential mechanism that deserves greater attention is the filing of lawsuits under the Alien Tort Claims Act. This law, passed back in 1789, allows corporations to be sued by citizens of countries lacking legal protections against human rights violations, of which child soldiering could be easily included. While the law’s standing is in deep dispute (big business groups have sought to nullify it), the threat of such lawsuits has been very effective in pressuring such corporations as Occidental and Unocal to revise and upgrade their human rights practices outside the United States.
In all of this effort to proscribe the practice of arming children, an underlying realization must be that non-state groups are less amenable to such external or legal pressures than are government-sponsored armies. Even such organizations, however, are vulnerable to certain measures that can change their calculations of the costs and benefits of using children. Under international law, all non-state groups must respect the prevailing codes of warfare, including the prohibition on recruiting and utilizing child soldiers, regardless of whether they signed the initial agreements or not. Their leaders are, therefore, liable to the same measures of legal prosecution and stigmatization as state leaders. These include not only their indictment as war criminals but also the use of targeted sanctions against them and their business associates.47 These might encompass freezing bank accounts and visa restrictions. Given the profit motivations, the prevention of trade is a key step. This should proscribe not just weapons transfers, as happens in most UN embargoes, but also the secondary and often illicit trade in valuable areas like lumber or cigarettes that are then used to pay for illegal arms.
Given that they are violating one of the most basic tenets of international law, those armed groups that refuse to acknowledge and follow through on the prohibition of child soldiers should be denied recognition and legitimacy within the international community. This sense of legitimacy and respect is something that is surprisingly craved by many such warlords. Besides the boost to the leaders’ egos, international connection offers a means to distinguish themselves from their peers and deter subordinates and would-be competitors.48
In the 1990s, the U.N., multiple state governments, an assortment of corporations, such as Unocal, and even a range of NGO leaders, such as Pat Roberston, sought to profit by engaging with warlords like Charles Taylor, Mullah Omar, and Laurent Kabila as if they were reputable and sovereign leaders. Besides being known despots, these same leaders were endemic child soldier users.49 Such shameful acts should not occur again. Likewise, the urge to rehabilitate such former “rogue states” as Libya must take into account their role in supporting child soldier users elsewhere (such as Libya’s support to the RUF in Sierra Leone and Charles Taylor in Liberia), in full violation of international law. Finally, the rewards given to child soldier groups that make only token demobilizations, such as the elevation of warlords in the eastern Congo to statesmen, must be ended. Instead, the burden of proof must fall on these child soldier users and abettors to prove they are compliant with international law before they are allowed to take on the role of legitimate players in the international arena.
NGOs and interested state governments should lobby and pressure the international community to withhold recognition and all the benefits that accrue (ranging from seats at the United Nations to international aid and trade) to any groups that seize power through the use of child soldiers or to those that aid them. This would send an effective message to other groups that they will not be able to achieve their aims if they adhere to the child soldier doctrine. As long as they do, humanitarian organizations should also hold them at a distance the same way they would those who are actively engaged in ethnic cleansing or genocide. They should also pressure other groups and states to do so as well. As a means of providing further incentive on the positive side, NGOs and interested states might want to connect such efforts with proposals to broker agreements that connect the flow of aid to the ending of child recruitment.
Even here these efforts may admittedly prove insufficient, as the decision calculus of some child soldier groups is not driven by political rationales. These groups will require other action to sway them. The payoffs of using children by predator groups and warlords should be limited by proscribing trade with such groups, as outlined in targeting corporate bodies and other trading links. Research has shown that the majority of “war economies” that act to reward local warlords are linked to the global economy.50 The current international campaign against the market for “blood diamonds” from Sierra Leone and Angola provides a blueprint to target these profits.
Another potential avenue is to target these groups’ external support structures. Many such conflict groups rely on donations and backing from support groups. For example, the LTTE has supporters in the Tamil communities of Australia, Canada, France, India, Norway, and the United Kingdom, who provide critical monetary and logistical backing.51 Any external support groups should be targeted for lobbying and stigmatization efforts.
Finally, while they may be non-state actors, at the end of the day, many non-state groups are dependent on the backing of certain states. An example is the LRA’s use of southern Sudan as a training refuge or the RUF’s basing in Liberia. This is the equivalent of hiding a criminal in one’s garage. The support or presence of such groups that use child soldiers should also put host states in violation of international law. This then opens the host state up to outside pressure, including sanctions and asset seizures, which may indirectly affect the practice of its child soldier–using protégés.
While certainly well intentioned, the present strategy of raising awareness and shaming child soldier users will go only so far. For the practice to end, an additive of deterrence is required. Groups seeking to end the use of child soldiers need a new strategy. They no longer need to convince the international community that using child soldiers is ethically wrong. Instead, they must change another belief, the common thinking by conflict group leaders that the benefits of using child soldiers outweigh the costs. By directly responding to the doctrine itself and its underlying political and economic rationales, groups seeking to end the use of child soldiers stand a far better chance of affecting the calculus of would-be child soldier groups.
At the end of the day, though, governments and activists must also acknowledge that these new programs may not be able to fully end the practice of using children as soldiers, certainly not in the short term. Even if successful, they will take time to mature to effectiveness. Moreover, the threat will likely remain, much as with chemical or biological weapons. Even when their use has been proscribed, there will remain the potential for groups to reassess the matter and use the child soldier doctrine in the future. Therefore, militaries must still steel themselves for the hard choices that result from facing children in battle.