By Michael Scharf and Margaux Day
While we applaud Colonel Davis for his integrity in resigning in the face of executive branch interference in the work of the Military Commissions, one statement from his interview (reproduced in Greg McNeal’s essay, “Politics and the Military Commission” below) cried out for a response:
INTERVIEWER: Some say Khadr is a child soldier, why isn’t he treated as a child soldier?
COL. DAVIS: “…because he is not. If you look at the Convention on the Rights of the Child, Article 37 talks about the prosecution of individuals under the age of 18. They can be prosecuted but they can’t be sentenced to death or confinement for life…The definition of a child soldier is one who has not yet attained the age of 15, Omar Khadr was 15 years and 10 months old when we captured him on the battlefield.”
As a 15-year-old captured on the battlefield of Afghanistan, Omar Khadr was in fact a child soldier, and the jurisprudence of the Special Court for Sierra Leone suggests that Khadr’s prosecution by a U.S. military commission would therefore be inappropriate. Under its statute, the jurisdiction of the Special Court for Sierra Leone was broad enough to potentially include prosecution of soldiers over the age of 15, but the Chief Prosecutor, David Crane, concluded that prosecuting such persons would be inappropriate under international law because child soldiers are victims at the same time they are perpetrators - a conclusion that was implicitly reaffirmed by the Appeals chamber of the Special Court for Sierra Leone in Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Sam Hinga Norman, SCSL-2004-14-AR72 (E) (May 31, 2004) (recognizing customary international law crime of recruiting child soldiers). According to Crane: “The children of Sierra Leone have suffered enough both as victims and perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes.” See Amnesty International Report, “Liberia: The Promises of Peace for 21,000 Child Soldiers,” 17 May 2004.
While Colonel Davis is correct that the Convention on the Rights of the Child defines a child as a person less than fifteen years of age (Article 1), he overlooks the fact that the Optional Protocol to the Convention on the Rights of a Child on the Involvement of Children in Armed Conflict (1) requires all States to “take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities”; (2) prohibits the compulsory recruitment of persons under 18; and (3) permits the voluntary recruitment of persons under 18 under very limited circumstances, conditioned on parental consent, full information, and reliable proof of age. The Optional Protocol, adopted on 25 May 2000, has been ratified by 73 countries, including Afghanistan and the United States.
Other international instruments define a child soldier as a person less than eighteen years of age. For example, the Cape Town Principles on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa, adopted in April 1997, recommends that governments prevent the participation of persons in hostilities that are less than eighteen years of age. It goes on to specifically define a “child soldier” as “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity.” The Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour states that the term child should apply to all persons under the age of eighteen.
Many countries have domestic laws outlawing the recruitment and deployment of persons under eighteen for armed service. Although the United States might be a persistent objector to the customary principle that child soldiers are soldiers under the age of eighteen, widespread practice by other States reveals that persons between the ages of fifteen and seventeen are children, and must be treated as such. Below is a timeline that shows domestic laws and international instruments that prohibit the recruitment of persons under the age of eighteen into armed forces, indicating how out of step the U.S. is on this issue.
Timeline - Recruitment of Child Soldiers
- 1900 - Guinea sets minimum age of recruitment for armed services at 18
- 1903 - Australia sets minimum age of recruitment for armed services at 18
- 1954 - Thailand sets minimum age of recruitment for armed services at 18
- 1956 - Germany sets minimum age of recruitment for armed services at 18
- 1959 - Myanmar sets minimum age of recruitment for armed services at 18
- 1960 - Gabon sets minimum age of recruitment for armed services at 18
- 1961 - Cote d’Ivoire sets minimum age of recruitment for armed services at 18
- 1962 - Jamaica sets minimum age of recruitment for armed services at 18
- 1962 - Nepal sets minimum age of recruitment for armed services at 18
- 1962 - Benin sets minimum age of recruitment for armed services at 18
- 1964 - Brazil sets minimum age of recruitment for armed services at 18
- 1966 - Morocco sets minimum age of recruitment for armed services at 18
- 1969 - Iraq sets minimum age of recruitment for armed services at 18
- 1970 - Singapore sets minimum age of recruitment for armed services at 18
- 1972 - France sets minimum age of recruitment for armed services at 18
- 1975 - Paraguay sets minimum age of recruitment for armed services at 18
- 1976 - Bolivia sets minimum age of recruitment for armed services at 18
- 1977 - Belize sets minimum age of recruitment for armed services at 18
- 1978 - Chile sets minimum age of recruitment for armed services at 18
- 1980 - Denmark sets minimum age of recruitment for armed services at 18
- 1980 - Ecuador sets minimum age of recruitment for armed services at 18
- 1980 - Egypt sets minimum age of recruitment for armed services at 18
- 1980 - Kuwait sets minimum age of recruitment for armed services at 18
- 1980 - Zimbabwe sets minimum age of recruitment for armed services at 18
- 1981 - Vietnam sets minimum age of recruitment for armed services at 18
- 1982 - Indonesia sets minimum age of recruitment for armed services at 18
- 1983 - El Salvador sets minimum age of recruitment for armed services at 18
- 1983 - Lebanon sets minimum age of recruitment for armed services at 18
- 1984 - China sets minimum age of recruitment for armed services at 18
- 1984 - Iran sets minimum age of recruitment for armed services at 18
- 1987 - Haiti sets minimum age of recruitment for armed services at 18
- 1987 - Libya sets minimum age of recruitment for armed services at 18
- 1989 - sets minimum age of recruitment for armed services at 18
- 1989 - Adoption and Opening for Signature of U.N. Convention on the Rights of the Child.
- 1990 - African Charter on the Rights and Welfare of the Child adopted
- 1990 - Namibia sets minimum age of recruitment for armed services at 18
- 1990 - Entry into Force of U.N. Convention on the Rights of the Child.
- 1991 - Armenia sets minimum age of recruitment for armed services at 18
- 1991 - Croatia sets minimum age of recruitment for armed services at 18
- 1991 - Philippines sets minimum age of recruitment for armed services at 18
- 1992 - Czech Republic sets minimum age of recruitment for armed services at 18
- 1992 - Republic of Moldova sets minimum age of recruitment for armed services at 18
- 1992 - Ukraine sets minimum age of recruitment for armed services at 18
- 1992 - Chad sets minimum age of recruitment for armed services at 18
- 1992 - El Salvador Chad sets minimum age of recruitment for armed services at 18
- 1992 - Belarus sets minimum age of recruitment for armed services at 18
- 1993 - Hungary sets minimum age of recruitment for armed services at 18
- 1993 - Kazakhstan sets minimum age of recruitment for armed services at 18
- 1993 - Mongolia sets minimum age of recruitment for armed services at 18
- 1993 - Nigeria sets minimum age of recruitment for armed services at 18
- 1994 - Kyrgyzstan sets minimum age of recruitment for armed services at 18
- 1994 - Sweden sets minimum age of recruitment for armed services at 18
- 1994 - Tajikistan sets minimum age of recruitment for armed services at 18
- 1994 - Cameroon sets minimum age of recruitment for armed services at 18
- 1995 - Spain passes Penal Code, Article 612(3)
- 1995 - Russian Federation sets minimum age of recruitment for armed services at 18
- 1995 - Uganda sets minimum age of recruitment for armed services at 18
- 1995 - Argentina sets minimum age of recruitment for armed services at 18
- 1995 - Eritrea sets minimum age of recruitment for armed services at 18
- 1996 - Bosnia Herzegovina sets minimum age of recruitment for armed services at 18
- 1996 - Dominican Republic sets minimum age of recruitment for armed services at 18
- 1996 - Ethiopia sets minimum age of recruitment for armed services at 18
- 1996 - Lesotho sets minimum age of recruitment for armed services at 18
- 1996 - Romania sets minimum age of recruitment for armed services at 18
- 1997 - Cambodia sets minimum age of recruitment for armed services at 18
- 1997 - Colombia sets minimum age of recruitment for armed services at 18
- 1997 - Slovakia sets minimum age of recruitment for armed services at 18
- 1997 - Greece sets minimum age of recruitment for armed services at 18
- 1997 - The Cape Town Principles on the Prevention of Children into Armed Forces and Demobilisation and Social Reintegration of Child Soldiers in Africa adopted
- 1997 - Mozambique sets minimum age of recruitment for armed services at 18
- 1998 - Argentina passes Draft Code of Military Justice
- 1998 - Algeria sets minimum age of recruitment for armed services at 18
- 1999 - South Africa sets minimum age of recruitment for armed services at 18
- 1999 - Venezuela sets minimum age of recruitment for armed services at 18
- 1999 - Adoption of Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
- 1999 - Portugal sets minimum age of recruitment for armed services at 18
- 1999 - Entry into force of African Charter on the Rights and Welfare of the Child
- 2000 - Adoption and Opening of Signature of Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
- 2000 - Democratic Republic of the Congo sets minimum age of recruitment for armed services at 18
- 2000 - Entry into force of Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour
- 2001 - East Timor Congo sets minimum age of recruitment for armed services at 18
- 2001 - Finland sets minimum age of recruitment for armed services at 18
- 2002 - Entry into force of Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
- 2002 - Israel sets minimum age of recruitment for armed services at 18
Comment #1
Morris Davis said,
I respectfully disagree with Professor Scharf. The question presented to me on The Verdict centered on whether it is appropriate to hold Omar Khadr accountable for acts committed when he was 15 years and 10 months of age (the same as thousands of other U.S. and Canadian citizens currently serving sentences to confinement for acts committed at comparable ages), not whether it was appropriate for al Qaida to recruit him into an armed conflict. The roster of countries set out above lists when they took action on the age for recruitment into their armed forces, not the age at which an individual can be held accountable for his or her conduct. (The Washington Post reports that Ivan Chester is charged with first-degree murder and is being held without bond… he is 14 years old.)
What Professor Scharf describes is what he would like the law to be, not what the law is at present. Article 37(a) of the Convention on the Rights of the Child states, “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” Note that the CRC does not say a person under eighteen years of age is immune from prosecution, it just places limitations on punishments that may be imposed (limitations that are met in the case of Omar Khadr). The subsequent Optional Protocol to the CRC did not repeal Article 37(a), so it remains in full force and effect.
Professor Scharf notes that Professor David Crane, when he served as chief prosecutor for the Special Court for Sierra Leone some years ago, would not have prosecuted someone like Omar Khadr, although the statute “potentially” allows such prosecution. There is no “potential” about it: Article 7 of the Statute of the Special Court for Sierra Leone is entitled “Jurisdiction over persons of 15 years of age,” and states the special court does not have jurisdiction over anyone “under the age of 15 at the time of the alleged commission of the crime.” The statute (the product of an agreement between the United Nations and the government of Sierra Leone) was enacted on January 16, 2002, almost two years after the Optional Protocol to the CRC was adopted and just two days before the government of Sierra Leone ratified the Optional Protocol. Assuming the Optional Protocol had the effect Professor Scharf describes in his commentary, one would expect it to be recognized and incorporated in the statute, but it was not.
How Professor Crane would have exercised prosecutorial discretion at some point in the past or how Professor Scharf would like the law to read does not change the fact that at present both the CRC and the Statute of the Special Court for Sierra Leone expressly recognize the right to hold someone accountable for acts committed at the age of 15 years and 10 months. There are plenty of problems with military commissions (the politicization of the process, for example), but this is not one of them.
December 4, 2007 at 8:52 am