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United States of America: Compliance with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict

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United States of America: Compliance with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict United States of America: Compliance with the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Submission to the Committee on the Rights of the Child from Human Rights Watch and Human Rights First April 2012 Summary Since its initial report and review in 2008, the United States has taken important steps to prevent the deployment of 17-year-old soldiers to areas of hostilities and has improved its oversight of, and response to, incidents of recruiter irregularities and misconduct. It has enacted new legislation intended to prevent the recruitment and use of child soldiers, including the Child Soldiers Accountability Act of 2008 and the Child Soldiers Prevention Act of 2008. In 2012, the Child Soldiers Accountability Act was used for the first time when a former military commander from Liberia was ordered deported by an immigration judge. In 2011, under the Child Soldiers Prevention Act, the US acted to withhold US$2.7 million in foreign military financing from the government of the Democratic Republic of Congo until the Congolese armed forces took steps to end its recruitment and use of child soldiers. The United States continued to provide support internationally for rehabilitation and reintegration programs for former child soldiers. Despite positive steps, concerns regarding US implementation of its obligations under the Optional Protocol include: Recruiter misconduct: Although substantiated cases of recruitment misconduct make up a very small percentage of total recruitment cases, reports still indicate that recruiters may falsify 1 documents, fail to obtain parental consent for underage recruits, and engage in sexual misconduct with girls under age 18. Independent reports also suggest that actual rates of recruiter irregularities may be substantially underreported. Prosecution of former child soldiers before military commissions: The US detained and prosecuted as adults two former child soldiers, Omar Khadr and Mohammed Jawad, before the military commissions at Guantanamo Bay. Both were apprehended in Afghanistan and transferred to Guantanamo as children, but were denied treatment due them as alleged child offenders. They were also criminally charged for conduct that had not previously been considered a violation of the laws of war. As of April 2012, Khadr remained in maximum security detention at Guantanamo awaiting a transfer to Canada under terms of a plea bargain agreement. Detention of children in Afghanistan: As of late March 2012, approximately 250 children under the age of 18 were detained at the US main detention facility at Bagram, Afghanistan. Children aged 16 and 17 were co-mingled with adults and not afforded any special education or rehabilitation programs, nor any review procedures that took into account their juvenile status. Treatment of former child soldiers seeking asylum or refugee status: There has been very limited progress since the initial report and review in 2008 in ensuring that the protections of asylum and refugee status are available in the US to former child soldiers who should qualify for refugee protection under the 1951 Refugee Convention and its 1967 Protocol. Significant delays in considering even those cases that are ultimately approved also delay access for former child soldiers to forms of assistance for recovery and reintegration that are dependent on the possession of lasting immigration status. Continued provision of military assistance to governments using child soldiers: Despite the enactment of the Child Soldiers Prevention Act of 2008, which prohibits certain US military assistance to governments that recruit or use child soldiers, or support militias or paramilitaries that use child soldiers, the Obama administration has issued waivers to allow several governments to continue receiving such aid despite their continued use of child soldiers. As of 2012, the law had been in effect for over two years, but in practice, only one military assistance program in only one country ($2.7 million in foreign military financing for the Congo) had actually been withheld by the administration. 2 I. General Measures of Implementation Reservations and understandings The policies adopted by the four branches of the US armed services currently prohibit deployment of 17-year-old soldiers to operational commands or, in the case of the Air Force, to “hostile fire or imminent danger zones.” In 2007, the Marine Corps issued a new policy prohibiting operational deployment for Marines under the age of 18. Previously, commanders were instructed to “weigh the mission requirements against the practicability of diverting 17- year-old Marines from combat.” The understanding lodged by the US at the time of ratification regarding the direct participation of soldiers under age 18 in hostilities implies a much more restrictive interpretation of article 1 than actual US practice. Suggested recommendation: The US should review and remove its understandings to the protocol, in particular, understanding 2(C). II. Prevention Participation in armed conflict In its state party report, the US asserts that a small number of 17-year-olds were deployed under the age of 18 during the reporting period, but not to combat zones and none took a direct part in hostilities. Although nearly 60 17-year-old US soldiers were deployed to Iraq and Afghanistan in 2003 and 2004, we believe that the US armed services have taken actions to prevent a recurrence of such deployments. We have no information indicating that underage US soldiers have taken part in hostilities during the recent reporting period. 3 Voluntary recruitment Recruiter irregularities In its concluding observations in 2008, the Committee recommended that the content of recruitment campaigns be closely monitored and that any reported irregularity or misconduct by recruiters should be investigated and, when required, sanctioned.1 In its state party report, the US states that there were just over 500 substantiated claims against recruiters in 2008 – a rate of less than 2/10ths of one percent of accessions. It states that since 2006, the Department of Defense has prepared annual Recruiter Irregularity Reports. A 2010 report by the US Government Accountability Office reported that all of the armed services had developed guidance and procedures to address recruiter irregularities and made “substantial progress” since 2006 in increasing their oversight of recruiter practices. It noted that substantiated cases of recruitment irregularities had decreased between 2006 and 2008. However, the Department of Defense has not issued a recruiter irregularity report since 2010, and the GAO report indicated several areas of concern. For example, in the Army (where there were 253 substantiated cases of irregularities in 2008), the second most common irregularity was “quality control measures,” including the failure to obtain parental signatures on an underage applicant’s application form.2 For the Air Force Reserve, such irregularities were the most common type reported. The report also cited individual instances of sexual and other misconduct involving underage recruits, including a Marines Corps recruiter engaged in a sexual relationship with a 16-year old applicant,3 another Marine Corps recruiter impregnating a 17- year-old student in a high school where he was responsible for recruiting,4 and a recruiter purchasing alcohol for an underage recruit.5 The GAO study concluded that despite progress, the military’s system of tracking and sharing recruiter irregularities was inadequate and better oversight over recruiter irregularities was needed. In addition, although the number of substantiated cases of recruiter irregularities are a very small portion of total contracts, the Rand Corporation, an independent agency that 1 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, Concluding Observations: United States of America, CRC/C/OPAC/USA/CO/1, 25 June 2008. 2 US Government Accountability Office (GAO), Military Recruiting: Clarified Reporting Requirements and Increased Transparency Could Strengthen Oversight over Recruiter Irregularities, Report to the Subcommittee on Military Personnel, Committee on Armed Services, House of Representatives, January 2010. 3 GAO, Military Recruiting, p. 50. 4 Ibid, p. 18. 5 Ibid, p. 50. 4 conducted a study for the Secretary of Defense, noted that it is “quite possible that only allegations that have a relatively high chance of being substantiated are reported” and that “tabulations substantially undercount actual irregularities.”6 Suggested Recommendations: The US should continue to improve monitoring and oversight of recruiter irregularities and misconduct, with particular attention to the recruitment of children under age 18 and securing parental consent for underage recruits. III. Prohibition and related matters Legislation As noted in the US state party report, in 2008 the United States enacted the Child Soldiers Accountability Act, which created both criminal and immigration sanctions for persons recruiting children under the age of 15 or using them as soldiers. This law applies to individuals regardless of whether the recruitment or use occurred in the United States. Subsequent to the US submission of its report, the Act was used for the first time in February 2012, when a New York State immigration judge ordered
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