ICC ruling on child soldiers holds lessons for the USA

A 14-year-old member of the U.S. military's Middle School Cadet Corps program. (Frank Neimeir/AJC)

Last week, the International Criminal Court (ICC) reached a verdict in the case of Congolese warlord Thomas Lubanga Dyilo for his role for the war crimes of enlisting and conscripting children and using them to participate actively in hostilities in the Democratic Republic of the Congo in 2002 and 2003.

Lubanga, former commander of the Patriotic Forces for the Liberation of the Congo militia and president of the Union of Congolese Patriots, was found guilty of conscripting children under the age of 15 and sending them into a brutal guerrilla war.

The United States welcomed the verdict with a statement calling it “an historic and important step in providing justice and accountability for the Congolese people.”

“This conviction puts perpetrators and would-be perpetrators of unlawful child soldier recruitment and other atrocities on notice that they cannot expect their crimes to go unpunished,” the State Department said.

Lubanga had been turned over to the court by the Congolese government in 2006, the first individual to be taken into custody by the ICC. The Prosecutor of the ICC, Luis Moreno-Ocampo of Argentina, charged Lubanga with the war crime of enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age of 15 to participate actively in hostilities.

In its March 14 verdict, the ICC noted,

The crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as set out in Article 8(2)(b)(xxvi) of the Statute falls within “the established framework of international law” as one of the “other serious violations of the laws and customs applicable in international armed conflict”. The prohibition is based on Article 77(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949.

In addition to the Geneva Conventions, the Court cited Articles 38(2) and (3) of the UN Convention on the Rights of the Child, ratified by every country in the world except the United States and Somalia, as part of the relevant legal framework.

As Article 38 of the Convention on the Rights of the Child reads,

1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall 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.

3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.

Immediately following the ICC’s verdict, its broader implications were being recognized by human rights groups and international lawyers. Géraldine Mattioli-Zeltner, the international advocacy director for Human Rights Watch, said, “Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.”

But could the ICC ruling also hold ramifications for the United States?

The U.S. military has long been criticized for skirting the international prohibition against the conscription of child soldiers through questionable recruiting strategies such as the Junior Reserve Officer Training Corps (JROTC), the Future Soldiers Training Program, forced military testing in American schools through the Armed Services Vocational Aptitude Battery, and the Army Experience Center, which bills itself as an “opportunity to virtually experience many aspects of Army life.”

“The Army Experience Center is an abomination,” says Sergeant Jesse Hamilton, who served nine years in the Army including tours in Iraq. “It targets impressionable minors, and it propagates the glorification of war. I am utterly disgusted that the Army which I loved and in which I served so long has resorted to such a deceiving recruiting strategy.”

In a 2008 report, “Soldiers of Misfortune: Abusive U.S. Military Recruitment and Failure to Protect Child Soldiers,” the ACLU exposed the U.S. military’s recruiting tactics that target children as young as 11 and disproportionately target low-income youth and students of color.

The report demonstrated that the United States is failing to observe minimum safeguards for recruitment of youth under 18 as required by the Optional Protocol on the Involvement of Children in Armed Conflict, which the U.S. Senate ratified in 2002. It also documented the military’s practice of recruiting children without parents’ consent and exposing youth to misconduct by recruiters, including coercion, deception, and sexual abuse.

As the report explains:

The JROTC oversees the Middle School Cadet Corps (MSCC), in which children ages 11 to 14 can participate. The military has invited children as young as 11 to join MSCC, or pre-JROTC, programs at their elementary and middle schools. Florida, Texas, and Chicago, Illinois offer military-run after-school programs to sixth-, seventh-, and eighth-graders. In Chicago alone, about 26 MSCC programs are offered. These programs involve drills with wooden rifles and military chants.

Legal challenges to military recruiting of youth have largely been ineffective. While the New York Civil Liberties Union succeeded in pressuring the Hutchinson Central Technical High School in Buffalo, New York to release students from a mandatory JROTC program in October 2005, other attempts to more comprehensively prohibit recruiters from high schools have failed.

Local ordinances in Eureka and Arcata, two northern California cities, which attempted to ban U.S. armed services recruiters from initiating contact with youths under 18 anywhere within city limits were declared unconstitutional by a federal judge in Oakland in 2009. The judge declined to hear oral arguments in the case, instead basing her judgment on the legal briefings filed by the parties, and threw out the laws despite the fact that they had passed with 73 percent of the vote in Arcata and 57 percent in Eureka.

Dave Meserve, the former Arcata councilman behind the laws, said it was disappointing that the judge ruled without hearing arguments on the case. “She doesn’t respond to any of our arguments in any way,” he said. “The order reads like a restatement of the government’s case.”

The case stemmed from a suit filed by the U.S. Department of Justice first filed suit against the California towns, claiming that these Youth Protection Acts fail under Article VI of the Constitution, which makes federal law supreme over contradictory state or local legislation.

The cities, however, countered that current military policy violates the Convention on the Rights of the Child’s Optional Protocol on Children in Armed Conflict, a separate but related treaty to the UN Convention on the Rights of the Child.

“When the government enters into an international treaty or protocol, that becomes the law of the United States,” said Arcata counsel Brad Yamauchi, also citing Article VI. The cities claimed that the U.S. military is in violation of the Protocol’s prohibition on the recruiting of children for military service.

This countersuit constituted the first time since the 2002 ratification of the protocol that the federal government’s compliance with the treaty had been legally questioned.

The court’s ruling was later upheld by the US Court of Appeals for the Ninth Circuit.

The case has not made its way to the Supreme Court, but considering the fact that the ICC has just issued its first verdict on the practice of recruiting child soldiers, the U.S. military and domestic courts might do well to take note.

While there are obviously substantial differences between the exploitation of children in an African civil war and the targeted recruitment of high school kids in the USA, the verdict of the ICC in the Lubanga case makes a strong case that underage youth should be considered off-limits to any sort of armed forces conscription.

“The term ‘child soldiers,’” reads the verdict, “includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group.”

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