Amanda Sherman, Staff Writer
Ishmael Beah was eleven years old when the war in Sierra Leon began.1 When the war finally reached his town, he was separated from his family members and left to wander from town to town with a few of his friends, in search of safety.2 After hearing news that his family members had been killed, Ishmael and his friends arrived at a village occupied by the Sierra Leonean Army.3 When Ishmael was thirteen, the soldiers declared their intent to recruit more able bodies because they had lost so many men.4 Ishmael and his friends were told they must join the army or be killed.5 Ishmael recalls:
My squad had boys who were as young as 7 . . . . I couldn’t shoot my gun at first. But as I lay there watching my friends getting killed . . . I began shooting. Something inside me shifted and I lost compassion for anyone. After that day, killing became as easy as drinking water. I had lost all sense of remorse.6
Ishmael’s story is the story of many young boys and girls worldwide.7 The military recruitment of children under eighteen years of age and their use in hostilities is taking place in at least eighty-six countries and territories around the world.8 By the end of 2007, seventeen armed conflicts directly involved children, which is a significant decrease from the twenty seven armed conflicts directly involving children in 2004.9 In its 2008 report, the Coalition to Stop the Use of Child Soldiers stated its belief that this decrease was most likely due to wars ending rather than to any specific efforts to decrease child involvement in armed conflicts.10 There are many different reasons for the proliferation of children as soldiers; however, “[T]he underlying causes of 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.”11
On April 24, 2007, the newly formed Subcommittee on Human Rights and the Law of the Committee on the Judiciary of the United States Senate held the first congressional hearing on child soldiers.12 The hearing resulted in the enactment of three pieces of legislation, including the Child Soldier Accountability Act of 2008 and the Child Soldier Prevention Act of 2008, which most directly deal with the issue of child soldiering.13
The Child Soldier Accountability Act is an effort to prevent the United States from being used as a safe haven for those involved in the proliferation of child soldiers as listed under the Act.14 The United States is also given the power, under this Act, to prosecute these offenders under its own criminal laws.15 The Act’s purpose is “[t]o prohibit the recruitment or use of child soldiers, to designate persons who recruit or use child soldiers as inadmissible aliens, [and] to allow the deportation of persons who recruit or use child soldiers. . . .”16
The Child Soldier Prevention Act, however, went through a fairly significant revision before its passage, removing even a statement of its purpose. Several statements listed as being the “sense of Congress” remained in the Act including the goal of rehabilitation and reintegration, upholding international standards, and the United States’ desire to give consideration to a country’s use of child soldiers in its allocation of funds.17 Unfortunately, due in part to the revisions the Act underwent, the actual binding provisions of the Act do not fulfill the lofty goals listed as being the sense of Congress.18 Additionally, all of the findings contained in the bill as drafted were removed.19 While many of those findings are readily acknowledged by the other international agreements, their inclusion in the Act was significant, if only to demonstrate the United States’ dedication to seeing it to an end through further and more aggressive action.
The Challenge of Defining a Child Soldier
Under almost every international agreement and congressional act, the term “child soldier” is defined slightly differently; however, the Child Soldier Accountability Act defines a child soldier as a person under fifteen years of age.20 The Child Soldier Prevention Act has a broader definition of the term, setting the age of voluntary recruitment at fifteen (under the bill, it was sixteen, although this did not pass) but otherwise defining a child soldier as under eighteen years of age.21 If Congress could agree to expand the age of voluntary recruitment to sixteen, this would make a statement to the international community that the United States is ready to step outside of its comfort zone in order to resolve an issue of great importance. Disagreements over age should not slow down the progress of legislation that is needed to protect children as young as eight or nine. In order to pass more aggressive future legislation, it may be necessary to keep the age of voluntary recruitment at fifteen since this has already been agreed upon.
Another interesting aspect of the Prevention Act is that its definition of child soldier includes not only those children used in combat, but also those who served in any supporting position including cooks, sex slaves, etc.22 Additionally, the Child Soldier Accountability Act does more than just prevent the use of child soldiers by the armed forces of the governments of individual countries.23 Reaching any “army, militia, or other military organization, whether or not it is state-sponsored”24 who violates its provisions, the Accountability Act is much more far-reaching than it would if only governmental armed forces were targeted. The Prevention Act, conversely, binds only the governmental armed forces of foreign countries.25 Because the Accountability Act carries punishments that are not as far-reaching as the Prevention Act, the expanded definition is appropriate.
Penalties, Waivers, and Exceptions
The Child Soldier Accountability Act allows criminal charges to be brought against those violating its provisions provided that an indictment must be filed no later than ten years from the commission of the alleged offense.26 The United States only has jurisdiction over an alleged offender, however, if: (1) the alleged offender is a “national of the United States or an alien lawfully admitted for permanent residence,” (2) a “stateless person whose habitual residence is in the United States,” or (3) a person “present in the United States irrespective of . . . nationality.”27
The Child Soldier Prevention Act removes only U.S. assistance and direct commercial sales of military equipment to countries violating the provisions of the Act.28 Therefore, countries in violation of the Act may still continue to receive funds that the U.S. has allocated for education and training, foreign military financing, foreign military sales, as these are not specifically removed under the Act. It depends largely upon how Congress and the President interpret this Act. The application of the Act may also depend how important a country is to the U.S.’s foreign policy strategy in other areas.
Additionally, the Prevention Act contains waiver provisions which allow exceptions to be made for certain countries under circumstances that are still not very clearly defined.29 Child soldier legislation should not be applied depending upon what the U.S. gains for its own military in continuing a relationship with a particular country. It is understandable that the need for waivers and exceptions exists when the U.S. depends on other countries for its national security strategies, however, these exceptions remove much of the force from the Act.
Articulating a Future: Recommendations for Legislative Action
The United States is at a crossroad regarding this issue: Congress passed the Prevention and Accountability Acts under President Bush, but it is unclear in what direction an Obama presidency will lead. The legislation passed last term was ground-breaking in that the United States has finally taken action to see an end to the use of children as soldiers. This is a step of which every American can be proud. The need for domestic action has existed for some time, and every step taken in addressing this issue is notable. If this legislation is seen as only the first step in the United States’ response to the issue of child soldiering, then it will prove to be effective. If, however, no new legislation apart from the Accountability and Prevention Acts is passed, then the legislation will likely not have a strong impact on the use of child soldiers.
Every Act of domestic legislation has wide-spread effects. The Accountability and Prevention Acts were safe: in an attempt to maintain the status quo in U.S. foreign policy, they were so benign that it is likely their passage will not have a genuine impact on the use of children in combat. Another Act must be passed. This Act must incorporate findings, it must have a consistent definition of what a child soldier is, and it must effect all U.S. funding to countries found in violation with very limited (if any) waivers and exceptions.
In the meantime, the United States needs to concretely identify its foreign policy goals and act in line with these goals rather than enacting legislation merely to quickly fix a heavily publicized and politicized issue. If advocates continue to work to ensure that the Accountability and Prevention Acts are not the first and only domestic U.S. legislation related to child soldiering, perhaps the next era of United States foreign policy will see a decrease in the proliferation and use of children in combat.
Edited by Marisa Floriani
1 Casualties of War: Child Soldiers and the Law: Hearing Before the Subcomm. on Human Rights and the Law of the S. Comm. on the Judiciary, 110th Cong. 7 (2007) [hereinafter Casualties] (statement of Ishmael Beah, Author and Former Child Soldier).
3 Id. at 7-8.
4 Id. at 8.
6 Casualties, supra note 1.
7 Coal. to Stop the Use of Child Soldiers, Child Soldiers: Global Report 2008 12 (2008) [hereinafter Global Report].
11 P.W. Singer, Talk is Cheap: Getting Serious About Preventing Child Soldiers, 37 Cornell Int’l L.J. 561, 563 (2004).
12 Casualties, supra note 1.
13 Press Release, Patrick Leahy, U.S. Senator, Vt., Bill to Deny Safe Haven to War Criminals Who Exploit Child Soldiers Sent to President (Sept. 15, 2008) [hereinafter Leahy Press Release].
15 Child Soldier Accountability Act, 18 U.S.C. §§ 2442, 3300 (2008).
16 Child Soldier Accountability Act, Pub. L. No. 110-340, 122 Stat. 3735 (2008).
17 Child Soldier Prevention Act of 2008, Pub. L. No. 110-457, 122 Stat. 5089 (2008); Child Soldier Prevention Act of 2008, 22 U.S.C. §§ 2370c, 2370c-1, 2370c-2, 4028 (2008).
18 See S.1175 110th Cong. (2007).
19 S.1175 110th Cong. § 2(2).
20 See Child Soldier Accountability Act, 18 U.S.C. § 2442(a)(2).
21 See Child Soldier Prevention Act of 2008, 22 U.S.C. § 2370c(a)(iii).
22 22 U.S.C. § 2370c(b).
23 18 U.S.C. § 2442(d)(2).
24 22 U.S.C. § 2442 (d)(2).
25 22 U.S.C. § 2370c(a).
26 18 U.S.C. § 3300.
27 18 U.S.C. § 2442(c).
28 22 U.S.C. § 2370c-1(a).
29 22 U.S.C. § 2370c-1(c).