No Way Out: Representing Child Soldiers in Asylum Cases and Alternate

CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

NO WAY OUT: REPRESENTING CHILD SOLDIERS IN ASYLUM CASES AND ALTERNATE

SOLUTIONS TO THE STRICT LIABILITY EXCLUSION UNDER THE “PERSECUTION OF OTHERS”

CLAUSE

1 RAIO G. KRISHNAYYA

“When they came to my village, they asked my older brother whether he was ready to join the militia. He was just 17 and he said no; they shot him in the head. Then they asked me if I was ready to sign, so what could I do - I didn't want to die.”2

I. INTRODUCTION The recruitment of child soldiers is a problem that encompasses a myriad of global problems culminating in armed conflict. It raises questions of economic, social, cultural, ethnic, and educational disparities, and it is linked to some of the most horrendous crimes that the world has seen: war crimes, genocide, and crimes against humanity.3 As a practical matter, the exact numbers are unclear, but Human Rights Watch estimates that there are hundreds of thousands of children under the age of 18 who are serving in either a government or rebel force.4 Those who would exploit children for armed conflict do not differentiate between boys and girls.5 Since 2001, there have been an estimated 21 conflicts in the world that employ child soldiers, including places like Nepal, Sri Lanka, Uganda, Chad, Burundi, Liberia, Sierra Leone, Colombia, and

1 LL.M. candidate 2010, Indiana University – Indianapolis, Indiana, J.D., 2000, DePaul University College of Law, Chicago, Illinois, Executive Director for the Center for Victim and Human Rights, Indianapolis, Indiana. 2 Statement of a child soldier from the Democratic Republic of Congo. Coalition to Stop the Use of Child Soldiers at http://www.child-soldiers.org/childsoldiers/voices-of-young-soldiers (last visited Dec. 1, 2007). 3 For example, consider the case of Lubanga Diylo who has been charged with war crimes in the International Criminal Court, specifically, violations of Article 25 (3) of the Rome Statute with regard to the enlisting of children under the age of fifteen. Warrant of Arrest at 2, Situation in the Democratic Republic of Congo in the Case of the Prosecutor v. Thomas Lubanga Diylo, No. ICC-01/04-01/06 (Feb. 10, 2006), http://www.icc- cpi.int/library/cases/ICC-01-04-01-06-2_tEnglish.pdf (last visited Nov. 30, 2007). 4 Human Rights Watch, Facts About Child Soldiers, (2007), http://hrw.org/campaigns/crp/fact_sheet.html (last visited Nov. 30, 2007). 5 Supra, note 3. Page 1 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Angola.6 This is only a partial list. Although, there is no question about whether this is a problem that must be addressed, the question is how to address it. This paper begins by examining States’ obligations regarding child soldiers under international law. Some non-governmental organizations have determined that the issue of child soldiers raises questions of international human rights law, international criminal law, international humanitarian law, and international labor law.7 Each of these bodies of international law reflect a State’s specific responsibilities as related to the unique characteristics of child soldiers as children, participants in armed conflict, as well as perpetrators of crimes related to the persecution of others. With regard to the issue of children (defined as a person under the age of 18)8 generally, a State’s responsibilities are defined by the Convention on the Rights of the Child (CRC) and its relevant protocols. The CRC mandates that “State Parties shall 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.”9 Article 4 of the Optional Protocol imposes the responsibilities on both military bodies as well as non-State militias: 1. Armed groups, distinct from the armed forces of a State, should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.

2. State Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.10

However, the fact that there are hundreds of thousands of child soldiers indicates that the success of meeting these obligations is limited. Furthermore, as a practical matter, as will be

6Human Rights Watch, Child Soldiers, (2007), http://hrw.org/campaigns/crp/index.htm (last visited Nov. 30, 2007). 7 Human Rights Watch, International Legal Standards Governing Child Soldiers, (2007), http://www.humanrightswatch.org/campaigns/crp/int-law.htm (last visited Nov. 30, 2007). 8 Convention on the Rights of the Child, art. 1, Sept. 2, 1990. 9 Convention on the Rights of the Child, supra note 7, at art. 38. 10 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 4, Feb. 2, 2002. Page 2 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

later described, children recruited into military units or militias face powerful and devastating conditions that leave them only with the choice of joining and pledging their allegiance to their warlord, risking imminent death or serious injury, or trying to flee. This article will examine the ramifications of a child soldier who has decided to escape by seeking asylum, specifically under U.S. law.11 The first part will lay the foundation of States’ obligations to asylum seekers through international law. The second part of this article will provide the statutory requirements for seeking asylum and will present the problems specifically faced by child soldiers as asylum seekers. The third part will propose that the prohibition against granting asylum on the basis of participation in the persecution of others should include an intent requirement. Also, the fourth section will propose the inclusion of an affirmative defense. Such defense would grant asylum on the basis that the acts in question would be covered under the Geneva Conventions and therefore could not be considered persecution. Both of these are considered in light of the fact that child soldiers may not have the requisite intent to commit the acts of persecution in light of their age and the specific conditions under which they are recruited. This paper will conclude by calling for amendment to the INA to include these provisions such that children who are utilized in armed conflict can still be granted asylum.

II. INTERNATIONAL OBLIGATIONS The most pertinent international treaty related to the asylum status of child soldiers would be the Convention Relating to the Status of Refugees (Refugee Convention). The Refugee Convention, entered into force in 1954, was an attempt to balance the burden on States that accept refugees versus the needs of the refugees to seek a safe haven. “Refugee” under the Refugee Convention is defined as follows:

11 The term refugee is not used here because this article presumes that the child soldier would either be present in the United States and either applying for asylum or would be asserting asylum as a defense in a removal proceeding. However, this article presumes that some of the same concepts would be equally applicable for a refugee seeking to enter the U.S. Page 3 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Any person who…has well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.12

Article 33 of the Refugee Convention imposes upon States the burden that they may not “expel or return a refugee in any manner…where his life or freedom would be threatened….”13 It might be argued that these obligations stem from broader concepts embodied in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Specifically, Article 2 of the UDHR states that “everyone is entitled to all the rights and freedoms set forth in this declaration, without discrimination of any kind, such as race, colour, sex, language, religion, political, or other opinion, national, or social origin, property, birth or other status.”14 The UDHR delineates other rights, which could be construed as negative rights, consistent with those same rights as articulated under the U.S. Constitution. However, the UDHR is widely considered aspirational and therefore unenforceable, in that it creates no private right under domestic law.15 Subsequently, one would turn to the language of Article 12 of the ICCPR, which grants an individual the right to “choose his residence.”16 Therefore, an argument exists that international law creates an individual right for a person to be free from persecution in his or her State of residence, and where the State has failed to uphold this obligation, the individual may seek asylum elsewhere. Thus, although arguably international law creates an

12 Convention relating to the Status of Refugees, art 1, April 22, 1954 [hereinafter Refugee Convention]. Note that article 1 originally stated that “[a]s a result of the events occurring before 1 January 1951….” However, this was amended by the Protocol Relating to the Status of Refugees, in which the phrase was removed, thus making the Convention applicable without any temporal limitations. 13 Refugee Convention, supra note 11, art. 33. 14 Universal Declaration of Human Rights, art. 2, Dec. 10, 1948. 15 JEFFREY L. DUNOFF, STEVEN R. RATNER, & DAVID WIPPMAN, INTERNATIONAL LAW NORMS, ACTORS, PROCESS 447 (2006) [hereinafter Dunoff, International Law]. 16 International Covenant on Civil and Political Rights, art. 12, March 26, 1976. Page 4 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

enforceable individual right, that right is only enforceable through domestic legal regimes, especially in the context of individual rights.17 The result is that States create laws seeking to balance their international obligations with national interests. Furthermore, international law recognizes the difficulty in balancing these interests as articulated in the preamble to the Refugee Convention: [c]onsidering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.18

In that spirit, the Refugee Convention allows States to prohibit granting asylum to those who represent a threat to national security or to those who have committed serious crimes.19 It also allows States to preclude individuals from obtaining asylum if they are able to avail themselves of the protections of another State or if the individual decides to retain their citizenship in the country they were originally seeking to flee.20 However, the Refugee Convention and its relevant protocols allow a State-party to balance its obligations to admit refugees with other interests, such as national security, resource considerations, etc.21 With regard to the ICCPR, the U.S. is a party to this body of law; however, the reservations, understandings, and declarations filed by the U.S. indicate ratification of the ICCPR was not intended to provide an enforceable right of action under domestic law.22 Thus, although these treaties exist, important to realize is that although the rights of an asylum seeker

17 DUNOFF, INTERNATIONAL LAW, supra note 14, at 267. 18 Refugee Convention, supra note 11. 19 Refugee Convention, supra note 11, at art. 1. 20 Refugee Convention, supra note 11. 21 See generally, Refugee Convention, supra note 11. It is worthy of note that the U.S. has not ratified but has signed the Refugee Convention. However, the U.S. is a signatory and the question of whether the obligations imposed by the Refugee Convention are binding upon the U.S. under customary international law is still open for debate. However, this is not an issue that will be addressed in this article. 22 See, Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights, Senate Exec. Rep. 102-103 (102d Cong. 2d Sess. 1992). Page 5 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

may seem broad, international law recognizes that the rights are still subject to limitations vis-à- vis a State’s national interest as enforced through its sovereignty. Also, because this article addresses the concerns of child soldiers, the implications of the Geneva Conventions should be considered.23 The nature of a child’s participation in armed conflict as a soldier, whether in a conflict of an international or non-international nature, creates a prima facie case that protections under the Geneva Conventions are implied.24 The threshold question in this context is whether the conflict in which the child was a participant could be characterized as an “armed conflict” pursuant to common Article 2 or an “armed conflict not of an international character” pursuant to common Article 3.25 The implication of the Geneva Conventions with respect to child soldiers and asylum is two-fold. First, the Geneva Conventions create a de minimus requirement that covered persons are afforded “all the judicial guarantees which are recognized as indispensable by civilized peoples.”26 Therefore, its relevancy is that international law creates an obligation to conduct judicial hearings in a context where certain fundamental rights are protected, arguably the same rights as delineated in the UDHR, the ICCPR, and the Refugee Convention. Clearly, however, this is limited in the context where the child soldier is seeking asylum or refuge in a State also engaged in the conflict. Second, the Geneva Conventions delineate military practices that are considered legal.27 Thus, if under international law, certain actions taken by a child soldier would be sanctioned under the Geneva Conventions, the question arises whether those acts should be considered “persecution.”

23 There are four Conventions that comprise the treaty collection known as the Geneva Conventions: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of August 12, 1949; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of August 12, 1949; Geneva Convention relative to the Treatment of Prisoners of War, of August 12, 1949; Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949 [hereinafter Geneva Conventions]. Note that each of the Geneva Conventions shares the same language for articles 2 and 3. 24 Geneva Conventions, supra note 21, at art 3. 25 Geneva Conventions, supra note 21 at art 2, art 3. 26 Geneva Conventions, supra note 21, at art. 3(I)(d). 27 See generally, Geneva Conventions, supra note 21. Page 6 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

III. ASYLUM LAW The U.S. has assumed its obligations with regard to refugees and asylum seekers through the Immigration and Nationality Act (INA).28 Specifically, section 101(a)(42), the asylum provision of the INA states: any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….29

However, section 101 also states that a person may not qualify as a “refugee” or receive asylum where the person, “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”30 This second provision creates a problem in the representation of child soldiers for asylum purposes, because the acts committed by the child as part of an armed conflict may be viewed as having “assisted, or otherwise participated in the persecution” of another group. Representation of child soldiers who are seeking asylum then becomes a two-step process. In the first step, the practitioner would be required to show that a child soldier is both a member of a protected class under the INA and that as a result of being a member in that class, the child held a well-founded fear of persecution or was actually persecuted. The second step would be to rebut any assertions that by participating as a soldier the child had assisted or participated in the persecution of another.

28 Immigration and Nationality Act, ch. 477, 66 Stat. 166 (1952) (codified as amended at 8 U.S.C. §§ 1101-1105a (2005)) [hereinafter INA]. 29 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)). 30 Id. Page 7 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

A. Persecution or well-founded fear of persecution Worthy of note is that the INA itself does not provide a clear definition of “persecution” or a “well-founded fear of persecution.” As such, this ambiguity has led to disparity in how asylum cases are decided generally.31 However, there are seminal cases that attempt to establish parameters for both persecution and a well-founded fear. Begin with Matter of Acosta.32 The importance of Acosta is that it is often referenced with regard to the definition of ‘well-founded fear’ and ‘persecution.’33 In Acosta, the respondent, a 36-year old citizen of El Salvador, had sought asylum in response to deportation proceedings being initiated against him.34 Acosta had started a cooperative partnership in El Salvador with several taxi drivers in order to pool resources and help defray costs of running a taxi service.35 Acosta and his colleagues faced death threats, damage to their property, and physical assault; in several cases, Acosta’s colleagues had been executed.36 Although the immigration judge did not question Acosta’s credibility, he denied granting Acosta asylum on the grounds that his testimony was “self-serving.”37 The Board of Immigration Appeals (BIA) dismissed Acosta’s appeal, finding that Acosta was unable to show that he could not avail himself of the protections of neighboring city governments, by moving to another part of the country where cooperative taxi partnerships were not subject to persecution.38 Initially, the BIA noted that international instruments exist to assist States establish standards for defining these terms pursuant to the Refugee Convention and its subsequent

31 Julia Preston, Big Disparities in Judging Asylum Cases, N.Y. Times, (May 31, 2007), at A1. Also available at http://www.nytimes.com/2007/05/31/washington/31asylum.html?adxnnl=1&adxnnlx=1196525835- 1xE/dQFm5UBNkJZQeGUlsA (last visited Dec. 1, 2007). 32 19 I.&N. Dec. 211, Interim Dec. (BIA) 2986, 1985 WL 56042 (BIA) (1985). 33 See e.g., Sanchez-Trujillo v. I.N.S., 801 F.2d 1571 (9th Cir. Oct. 15, 1986)(analyzing the standard of review for well-founded fear). See also, Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. Apr. 22, 2004)(discussing whether economic persecution rises to the level contemplated by the INA for the grant of asylum). 34 Acosta, 19 I.&N. Dec. 211 at 213. 35 Id. 36 Id. 37 Id. at 218. 38 Id. at 235-36. Page 8 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

protocols.39 However, the BIA also noted that these documents are merely persuasive and not necessarily binding upon a State to adopt a particular definition.40 Acosta provides that the term persecution means, “harm or suffering must be inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome. The word does not embrace harm arising out of civil strife or anarchy.” 41 The BIA went on to define “well- founded fear” as: to mean that an individual's fear of persecution must have its basis in external, or objective, facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country. As has always been the case, our construction of the well- founded-fear standard reflects two fundamental concepts. The first is that in order to be ‘well-founded,’ an alien's fear of persecution cannot be purely subjective or conjectural-it must have a solid basis in objective facts or events. This concept, after all, is consistent with the generally understood meaning of the term ‘well-founded,’ which refers to something that has a firm foundation in fact or is based on excellent reasoning, information, judgment, or grounds. The second fundamental concept that is, and always has been, reflected in our construction of ‘a well-founded fear of persecution’ is that in order to warrant the protection afforded by a grant of refuge, an alien must show it is likely he will become the victim of persecution. (citations omitted)42

As applied to the issue of the child soldier, Acosta creates two problems. First, the BIA expressly stated that it does not read the granting of asylum to arise out of “civil strife or anarchy.”43 An argument would be made that in regard to the recruitment of child soldiers, it is precisely because of the civil strife or anarchy in the particular country that the child soldier faces the dilemma of either joining an army or rebel group or face persecution. Consider, for

39 Acosta, 19 I.&N. Dec. 211 at 220. 40 Id. at 222-23 (stating “[w]e conclude that the pre-Refugee Act construction of ‘persecution’ should be applied to the term as it appears in section 101 41 Id. at 223. 42 Id. at 226. 43 Id. at 222 (citing Matter of Diaz, 10 I.&N. Dec. 429, 434 (BIA 1973)). Page 9 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

example, that Sierra Leone has only recently ended a decade-long civil war.44 However, as recently reported by the BBC: [t]he problems of poverty, tribal rivalry and official corruption that caused the war are far from over. The 70,000 former combatants who were disarmed and rehabilitated after the war have swollen the ranks of the many young people seeking employment. Sierra Leone is rich in diamonds. The trade in illicit gems, known as "blood diamonds" for their role in funding conflicts, perpetuated the civil war.45

The problems seen in Sierra Leone are only an example of a worldwide problem arguably leading to the civil strife or anarchy that results in the recruitment of child soldiers. The second problem is that Acosta establishes a ‘probability’ standard for defining well- founded fear.46 The BIA had determined that the standard for a well-founded fear of persecution, for purposes of petitioning for asylum “converges” with the standard for withholding of deportation.47 As such, the BIA in Acosta transposed the “clear probability” standard for withholding of deportation onto the standard for granting asylum. The problem with this standard is that it requires child soldiers, who are often young, uneducated, traumatized, and incapable of expressing themselves, to articulate the “clear probability” that if they fail to engage in the conduct that made them child soldiers that the likely ramification is persecution.48 This is a problem because it raises the question about how a child soldier, who must overcome the hurdles previously mentioned, can articulate the factors that establish a likelihood that he or she will face future persecution, if returned.

44 BBC News, Country Profile: Sierra Leone, at http://news.bbc.co.uk/2/hi/world/africa/country_profiles/1061561.stm#overview (last visited Dec. 1, 2007) [hereinafter BBC News Country Profile]. 45 BBC News Country Profile, supra note 43. 46 See generally, Acosta, 19 I.&N. Dec. 211 at 213. 47 Id. at 214. 48 Id. Page 10 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

With regard to the second problem, the Acosta standard has been replaced by the standard articulated in I.N.S. v. Cardoza-Fonseca.49 In Cardoza, the U.S. Supreme Court held that the standard applied in Acosta was the improper standard.50 The Cardoza Court expressly rejected the “clear probability” standard implied in Acosta, rejecting the Acosta Court’s holding that the standard for the defense against deportability could be merged and applied as the same standard for asylum petitions.51 Important to realize is that in both the Cardoza and Acosta cases, there are two standards in operation. First, there is the standard as applied as to whether an affirmative petition for asylum should be granted; second, there is a separate standard for a respondent seeking asylum as a defense to deportability. According to the Court in Cardoza, the fundamental problem with Acosta was that it sought to impose the same standard for both defense to deportability and asylum.52 Subsequently, the court in Cardoza recognizes that the INA expressly contains two different standards, and that although they may seem facially similar, the underlying purpose in crafting two different standards was to make the burden of proof lower for the asylum seeker than the standard for defense to deportability.53 Of course, the Cardoza Court declined to further define what the standard should be, deferring to future BIA determinations.54 Although Cardoza may lower the threshold for establishing a well-founded fear, two problems with representing child soldiers still remain. First, the bar against asylum on the basis of civil strife and anarchy, as articulated in Acosta, still exists. Second, as a practical and evidentiary matter, even under the lower threshold requirement, a child soldier might not still be able to articulate a well-founded fear of persecution.

49 480 U.S. 421 (1987). 50 Id. at 431. 51 Id. 52 Id. at 447-48. 53 Id. 54 Cardoza-Fonseca, 480 U.S. at 1222 (stating “[w]e do not attempt to set forth a detailed description of how the ‘well-founded fear’ test should be applied. Instead, we merely hold that the Immigration Judge and the BIA were incorrect in holding that the two standards are identical.”). Page 11 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

There is potentially a third problem in the determination of a well-founded fear as related to child soldiers. It is their military service. Conscription into an army is generally not to be considered a basis for persecution. Consider the case of Matter of Izatula.55 In Izatula, the asylum seeker, a citizen of Afghanistan, escaped his country on the basis that his brother was a supplier to the mujahedin resistance and that the KHAD (the Soviet-supported Afghan secret police) were seeking to forcibly enlist him into the KHAD and have him provide information against his brother.56 Izatula established that an unwillingness to participate in mandatory military service and the fear of punishment for such refusal are not grounds for asylum.57 However, the BIA found that support of the mujahedin was sufficient to establish that Izatula, the asylum seeker, maintained a well-founded fear of persecution from a Soviet-backed Afghani government.58 Any fear that Izatula would be persecuted could be classified as persecution on the basis of political opinion.59 At the heart of the BIA’s holding is that the government of Afghanistan was found to be incapable or unwilling to uphold basic fair trial standards or that any constitutional or political options existed for the population to change its government.60 Thus, the BIA found that absent these protections or options, rebellion was the only option available for overthrow of the government of Afghanistan, and as such would open supporters of the mujahedin to persecution. However, Izatula has to be reconciled in light of the Supreme Court’s decision in I.N.S. v. Elias-Zacarias.61 In Elias-Zacarias, the then-I.N.S. sought to deport respondent back to Guatemala, who in turn sought asylum as a basis for withholding deportation.62 Respondent and asylum seeker, Elias-Zacarias, a citizen of Guatemala, left on account that a rebel group sought

55 20 I.&N. Dec. 149, Interim Dec. (BIA) 3127, 1990 WL 385750 (1990). 56 Matter of Izatula, 20 I.&N. Dec. at 152-53. 57 Id. at 152. 58 Id. at 154. 59 Id. at 152. 60 Id. 61 502 U.S. 478 (1992). 62 Elias-Zacarias, 502 U.S. at 480. Page 12 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

repeatedly to recruit him in order to fight against the seated-government.63 Elias-Zacarias stated that his refusal to join the rebels, even under threat of violence, was that if the government of Guatemala learned of his alliance with the rebels, then violent reprisals would be visited upon him and his family.64 Elias-Zacarias’ petition for asylum had been denied at both the immigration judge level and the BIA level.65 However, on appeal the U.S. Court of Appeals for the Ninth Circuit reversed, holding he was able to show a well-founded fear of persecution based on his political opinion to not support either side of the conflict.66 The U.S. Supreme Court disagreed.67 Writing for the majority and reversing the judgment of the Ninth Circuit, Justice Scalia held that any persecution Elias-Zacarias would face would not be on account of his political beliefs.68 The fact that Elias-Zacarias had refused to join either the rebels or the government in taking up arms in the conflict was not considered a political view.69 There are two interesting facets to Elias-Zacarias. First, the majority opinion seems to require affirmative evidence that the asylum seeker show that he or she have a political opinion that is different from the alleged persecutor and that the persecution is on account of this political difference.70 Justice Stevens, who wrote the dissenting opinion, asserts that political opinions can be expressed in the negative such that a refusal to join any party to a conflict can be read as a political view.71 Second, unlike Izatula, which took country conditions into consideration, Elias- Zacarias did not. One might wonder that if Elias-Zacarias were able to show that the country conditions in Guatemala were analogous to Afghanistan, would that have warranted a different outcome.

63 Id. at 479. 64 Id. 65 Id. at 480. 66 Id. at 481. 67 Elias-Zacarias, 502 U.S. at 484. 68 Id. at 481. 69 Id. at 483. 70 Id. at 483-84. 71 Id. at 486. Page 13 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

With regard to child soldiers, the Izatula standard is preferable because it allows a child soldier to demonstrate that the country conditions were such that the government was essentially ineffective at preventing recruitment of the child. Also, the problem under Elias-Zacarias is that from an evidentiary perspective, a child soldier would have to describe the political situation in that country and would then be required to show that the decision to seek asylum is not simply based on a decision to leave the conflict. Elias-Zacarias requires that the child soldier would have to show that his or her political beliefs differ from those seeking to recruit them. In conflicts based on socioeconomic factors rather than purely political factors, well known is that Acosta only allows asylum on the basis of economic persecution if probability of death is involved.72 This would presumably be more complicated for younger children who may not even have a concept of politics generally.

B. Persecution of others This article now turns to the exclusion against asylum seekers who are charged with persecuting others. Prior to addressing grounds for exclusion, however, the INA requires that the basis for an asylum seeker’s well-founded fear of persecution must be based on “account of race, religion, nationality, membership in a particular social group, or political opinion….”73 The preceding sections touched on the problems of categorizing a person’s fear of persecution in the context of military recruitment as a political opinion. However, in the context of child soldiers, asylum seekers may petition that by virtue of their being children and therefore vulnerable, they fall into one of the enumerated classes of protected people under the INA, specifically members of a social group vis-à-vis children. Or alternately, depending on the nature of the conflict, the rationale behind the persecution may be based on racial, ethnic, political or other grounds also covered under the INA. For sake of this article, an assumption will be made that the child

72 Acosta, 19 I.&N. Dec. 211 at 222-23 (stating “[w]e conclude that the pre-Refugee Act construction of ‘persecution’ should be applied to the term as it appears in section 101(a)(42)(A) of the Act.”). The Acosta made this statement in light of prior cases that held that economic persecution can be substantiate a well-founded fear if that fear threatened life or freedom. 73 INA § 101(a)(42). Page 14 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

soldier, if able to establish a well-founded fear of persecution, would clearly meet one of the enumerated grounds under INA section 101(a)(42). In contrast, the greater problem is the unique situation from which a child soldier comes. The fact that the child was conscripted into military or paramilitary service opens him or her to being viewed as having persecuted others and therefore unable to obtain asylum.74 The case of Sackie v. Ashcroft, decided in 2003, demonstrates that with regard to child soldiers, the issue of whether the asylum-seeker engaged in the persecution of others is a matter that must be addressed in the filing of the petition.75 Sackie, a citizen of Liberia sought habeas corpus relief from removal on the basis that he was a child soldier employed in the forces fighting against Charles Taylor.76 The immigration judge who addressed Sackie’s asylum petition found that he had not engaged in the persecution of others.77 However because of his participation in the conflict against then-President Charles Taylor, Sackie was able to show that if returned to Liberia he would be subject to torture and was granted withholding from removal pursuant to the Convention Against Torture.78 Sackie provides an excellent window into the recruitment of child soldiers engaged in armed conflict. For example, we learn that Sackie, at the age of 14, was kidnapped at gunpoint and recruited into the rebel army, fighting then-President Charles Taylor.79 Furthermore, the case points out that those who resisted recruitment were summarily executed.80 As an initiation rite, the child soldiers recruited were cut with the insignias of the rebel armies they represented and were frequently drugged to maintain control over them.81 Most telling, however, is that

74 Sackie v. Ashcroft, 270 F.Supp.2d 596 (E.D. Pa., 2003) is one of the few child-soldier cases. . 75 See generally, 270 F.Supp.2d 596 (E.D. Pa., 2003) 76 Id. at 598. 77 Id. at 600. 78 Id. at 602. 79 Id. at 601. 80 Sackie, 270 F.Supp.2d at 601. 81 Id. Page 15 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Sackie was ordered to “commit torture and do very evil stuff” and if he refused to engage in that conduct, both he and the victim would be executed.82 Although the case describes Sackie’s activities in detail, missing from the discussion are the specifics with regard to why Sackie’s activities did not constitute persecution of others.83 The focus of the Court’s ruling turns on whether the BIA had properly interpreted the definition of torture pursuant to the Convention Against Torture.84 One might insinuate, however, that because of the severe duress which Sackie faced in his recruitment, and with regard to the execution of his duties in the rebel army, that the immigration judge could not find that Sackie had not intentionally engaged in the persecution of others. However, without specific discussion, one cannot be certain that this is why Sackie’s actions were not considered acts constituting the persecution of others. The INA states that the term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”85 The cases that address the issue of participation in persecution range from direct act to indirect support of persecution. For example, consider the case of Matter of McMullen.86 McMullen was a former member of the Provisional Irish Republic Army (PIRA). As a high- ranking member of PIRA, McMullen assisted in many of the PIRAs special operations.87 However, his refusal to assist in a kidnapping plot made him fear violent reprisal by the PIRA.88 He fled Northern Ireland soon thereafter and eventually arrived in the U.S, where he requested asylum.89 The BIA held that McMullen’s basis for asylum was not on account of his fear of

82 Id. 83 See generally, Id. 84 Id. at 602. 85 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)). 86 19 I.&N. Dec. 90, Interim Dec. 2967, 1984 WL 48589 (BIA) (1984). 87 Id. at 92. 88 Id. at 93. 89 Id. at 91. Page 16 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

persecution based on political opinion.90 Instead he sought asylum on the grounds that his separation from PIRA was for personal safety reasons.91 Moreover, the BIA found that McMullen’s arms trading activities with the PIRA were enough to show that he: directly provided, in part, the instrumentalities with which the PIRA perpetrated its acts of persecution and violence. We have no difficulty in concluding that these arms were directly involved in the murder, torture, and maiming of innocent civilians who publicly opposed the PIRA, and are unwilling to isolate these arm shipments from their ultimate use by the PIRA in conducting its campaign of terror. Thus, we find clear evidence that the respondent aided and assisted in the persecution of others within the meaning of the Act.92

McMullen can be read for two main propositions. First, an asylum seeker need not have engaged in a specific act of persecution in order to be excluded.93 Participation in an organization that engages in persecution is enough.94 Second, a nexus to the act of persecution must be established in order to find the person excludable from being granted asylum.95 However, the extent of that nexus is not clear. Shirvanyan v. Gonzales attempts to define the nexus requirement of McMullen. The U.S. Court of Appeals for the Ninth Circuit held that although petitioner had not directly engaged in the conduct related to the persecution, his affiliation with an Armenian police agency responsible for the persecution of Jehovah’s Witnesses made him a persecutor.96 In Shirvanyan, the Ninth Circuit held that although petitioner had not actually engaged in physical battery against Jehovah’s Witnesses, the fact that he would drive the raiding parties to the sites and would participate in the raids was sufficient to find that he had engaged in the persecution of others.97

90 Id. at 95. 91 McMullen, 19 I.&N. Dec. 90 at 95. 92 Id. at 96-97. 93 See Id. at 98. 94 Id. 95 Id. 96 See Shirvanyan v. Gonzalez, 130 Fed.Appx. 196 (9th Cir. May 10, 2005), 2005 WL 1085787. 97 Id. at 197. Page 17 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Interestingly, the Ninth Circuit indicated that petitioner’s knowledge of the purpose of the raiding parties was also a factor in finding that he was responsible in the persecution of others.98 “He knew that he and fellow officers were going to the homes of Jehovah's Witnesses and that the officers would beat Jehovah's Witnesses.”99

IV. INTENT Although not discussed in detail, Shirvanyan raises an important issue of intent with regard to the exclusion ground for past persecution. Note that the language of section 101(a)(42) of the INA does not impute any mens rea requirement. Given the case analysis discussed above, one could consider ‘participation in the persecution of others’ provision as a strict liability provision. That is, whether the asylum seeker had intent to engage in the persecution of others is irrelevant. So long as the immigration judge can find a nexus between the specific conduct of the asylum seeker and the persecution, the individual will be denied asylum. Note that asylum law also provides for exclusion on the grounds of prior criminal conduct. The language of that exclusion provision states, “[a]ny alien convicted of, or who admits having committed, or who admits committing acts which….”100 Implied in this exclusion is the fact that a judicial finding of guilt under a criminal statute or admission of guilt is required.101 The language “convicted or who admits” implies a judicial finding based on a proceeding in which the accused is charged and tried and where the trier-of-fact imposes guilt. In the U.S., assumed would be that the person was found guilty beyond a reasonable doubt of intending and committing an act that is a crime of moral turpitude. Therefore, one may assume that some evidence of intent associated with the criminal act is required by incorporation through proof of criminal history. Section 101(a)(42), however, requires no such judicial finding with

98 Id. 99 Id. 100 INA § 212(a)(2)(A) (codified at 8 U.S.C. § 1182 (2005)). 101 Consider that the language of the section 212(a)(2)(A) states “any alien convicted of or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude…or a violation of any law or regulation of a State, the United States…is inadmissible.” Page 18 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

regard to an asylum seeker engaged in the persecution of others, and therefore, would not seem to require any proof that the individual intended the act. Yet, a brief review of court holdings demonstrates that courts, at the very least, feel compelled to address whether intent is a requirement into making determinations as to whether petitioner engaged in past persecution.102 With regard to child soldiers, the issue is highly relevant. Consider the motives for children joining armed factions in armed conflict: Children are forcibly recruited into armed groups in many conflicts but the vast majority of child soldiers are adolescents between the age of 14 and 18 who "volunteer" to join up. However, research has shown that a number of factors may be involved in making the decision to actually join an armed conflict and in reality many such adolescents see few alternatives to enlisting. War itself is a major determinant. Economic, social, community and family structures are frequently ravaged by armed conflict and joining the ranks of the fighters is often the only means of survival. Many youths have reported that desire to avenge the killing of relatives or other violence arising from war is an important motive. Poverty and lack of access to educational or work opportunities are additional factors - with joining up often holding out either the promise or the reality of an income or a means of getting one. Coupled with this may be a desire for power, status or social recognition. Family and peer pressure to join up for ideological or political reasons or to honour family tradition may also be motivating factors. Girl soldiers have reported joining up to escape domestic servitude or enforced marriage or get away from domestic violence, exploitation and abuse.103

102 See Xie v. I.N.S., 434 F.3d 136, 142 (2nd Cir. Jan 5, 2006) where the court states, “[a]s in Fedorenko, we deemed irrelevant Maikovswki’s personal motivation or intent in carrying out his orders.” Cf with Zheng v. BIA, 119 Fed. Appx. 321, 2005 WL 18006 (2nd Cir., Jan. 4, 2005). In Zheng, the court relied on the asylum seeker’s testimony that he “knew” that when he was driving individuals to local Chinese-run hospitals that he was driving them to the locations for the purposes of forced-sterilization. See also, Higuit v. Gonzalez, 433 F.3d 417, 421 (4th Cir., Jan. 3, 2006). In Higuit, the court determined that asylum seeker’s intelligence gathering operations made him “aware” that the information he provided to government agencies led to the “torture, imprisonment, and death of [New People’s Army] NPA members and other political opponents…” 103 Coalition to Stop the Use of Child Soldiers, Why Children Join, at http://www.childsoldiers.org/childsoldiers/why-children-join (last visited Dec. 1, 2007). Page 19 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Thus, the contrast between the cases surveyed thus far and the issue of child soldiers is two-fold. First, each of the cases cited refers to an adult asylum seeker. As a general presumption, absent extreme coercion, torture, mental illness, or some other inhibiting factor preventing the adult from creating an intent to engage in the otherwise unlawful act, an adult is presumed to have the capacity to create the intent that establishes responsibility for his or her acts. Second, without an express intent requirement in section 101(a)(42), courts cannot engage in an examination of whether superseding factors prevent the individual from intending the acts that are characterized as persecution. This is germane to child soldiers, because in U.S. domestic law, the mental competency of a child to engage in a criminal act has been a critical component in the evolution of juvenile criminal justice.104 Thompson v. Oklahoma is one of the landmark cases regarding the standard for establishing a juvenile’s capacity to commit crime.105 Thompson involved a 15-year old child who was charged, convicted and sentenced to death for murder.106 The Supreme Court found that the inexperience, lower educational level and lower intellectual capacity of a child made that child more susceptible to pressures that an adult could rationalize against and as such lowered the child’s competency to formulate the same mens rea as an adult for a serious crime such as murder.107 Consider the Court’s rationale: Given this lesser culpability, as well as the teenager's capacity for growth and society's fiduciary obligations to its children, the retributive purpose underlying the death penalty is simply inapplicable to the execution of a 15-year-old offender. Moreover, the deterrence rationale for the penalty is equally unacceptable with respect to such offenders, since statistics demonstrate that the vast majority of persons arrested for willful homicide are over 16 at the time of the offense, since the likelihood that the teenage offender has made the kind of cold-blooded, cost-benefit analysis

104 See Jon-Michael Foxworth, An Unjust Act: The Schizophrenic State of Maturity and Culpability in Juvenile Justice and Minor Abortion Rights Law; Recent Trends in Virginia and Nationally, 9 WM. & MARY J. WOMEN & L. 495, 497-98 (2003)[hereinafter Foxworth, An Unjust Act]. 105 487 U.S. 815 (1988). 106 Id. at 819. 107 Id. at 835. Page 20 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

that attaches any weight to the possibility of execution is virtually nonexistent, and since it is fanciful to believe that a 15-year-old would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century.108

Consider, in contrast, the strongest argument against imposing an intent requirement into the language of section 101(a)(42). Asylum law is not concerned with issues of retribution or deterrence as articulated in Thompson. Instead, asylum law is generally concerned with the balance between international obligations of granting refuge to those who are unable to find it in a third State and a State’s own sovereign interests.109 Therefore, one might argue that in the context of child soldiers as asylum seekers, an intent requirement is irrelevant to this purpose. However, even with regard to the ‘balance of interests’ argument, in the context of children as asylum seekers, an argument may be made that the obligation to provide refuge to children is greater than for adults, and therefore, greater than a State’s sovereign interests. In general, the CRC requires States to protect a child’s safety and health without any form of discrimination.110 An alternate argument might be that pursuant to a State’s sovereignty, a State may protect its national interests by limiting entries to those who may have committed criminal acts or who are deemed to be dangerous to the security interests of a State. In the case of the U.S., juvenile jurisprudence is moving toward expanding the use of the adult criminal justice system in trying, convicting and punishing criminal offenders.111 Yet, in domestic jurisprudence, even if a child is transferred to adult court to stand trial for a crime, the burden of proof remains with the prosecution to prove that the child both had the

108 Id. at 816. 109 Refugee Convention, supra note 11, preamble. 110 Convention on the Rights of the Child, art. 2, Sept. 2, 1990. 111 Foxworth, An Unjust Act, supra note 78 at 505 (citing the increased use of waivers to transfer juveniles, who would have, in the past, been tried in juvenile court for criminal behavior but are increasingly being transferred to adult criminal courts). Page 21 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

mens rea and committed the actus rea beyond a reasonable doubt.112 Therefore, even if procedurally the protections may appear lower by allowing transfer, the burden to show that the child had the requisite mental capacity to commit the crime remains with the state or government. In situations where that burden is not met, the stigma of having been wrongly accused still remains. Furthermore, even under the INA, where criminal conviction grounds exist for exclusion, the INA section 212(a)(2)(A) allows for exceptions and the possibility of waiver. However, section 208(b)(B)(2)(A) allows sole discretion for determining whether the asylum seeker participated in the persecution of others with the Secretary for the Department of Homeland Security.113 Furthermore, subsection (D) prohibits judicial review.114 Therefore, an argument may be made that due process protections are greater for those who have been proven to have committed a crime than for those who fall under INA section 101(a)(42) – participated in the persecution of others. This is inconsistent with the excludability factors on the basis of criminal grounds, which require some proof of intent vis-à-vis evidence of a conviction. Furthermore, in the context of the child soldier, as was previously described, numerous factors are involved in the recruitment of the child soldier and his or her participation in the persecution of others. These factors should be considered in deciding whether the person seeking asylum had actually engaged in the persecution of others because they may negate a child’s intent to commit the acts of persecution that would exclude him or her from the protections of being in the U.S.

V. ALTERNATIVE APPROACHES If the language of INA sections 101(a)(42) and 208(b)(B)(2)(A) are read to impose strict liability for participation in the persecution of others and also are seen as an obstacle for granting

112 Foxworth, An Unjust Act, supra note 78 at 500 (citing, In re Winship, 397 U.S. 359, 361-68 (1970), which held that the burden of proof in juvenile criminal cases should be the same as in adult criminal cases, beyond a reasonable doubt.). 113 INA § 208(b)(B)(2)(A) (codified at 8 U.S.C. § 1158 (2005)). 114 INA § 208(b)(B)(2)(D) (codified at 8 U.S.C. § 1158 (2005)). Page 22 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

asylum for those who would otherwise be eligible, namely child soldiers, then there are two possible remedies for the problem. First, a mens rea requirement could be added. By including a mens rea requirement, an asylum seeker could assert the defense that he or she had no intention of engaging in the act of persecution because of mental duress, coercion, etc. Second, a waiver of excludability could be granted in situations where the conduct of the person involved fell within the scope of the Geneva Conventions.

A. Intent revisited In adding a mens rea requirement, the language of the INA could be changed to read that ‘any person who intended to order, incite, assist, or otherwise participate in the persecution of any person….’ The result of including this element is that it creates a specific intent exclusion. Critics of including this element would suggest that intent might be too high a standard for purposes of asylum. They might argue that by including this element, asylum cases become transformed into criminal courts where the government bears the burden of proving each of the elements. However, the burden of showing that the asylum seeker participated in the persecution of others already resides with the government. And where the evidentiary standards are not as strict as in a criminal trial, the government would be allowed to introduce hearsay evidence. Furthermore, the testimony of the asylum seeker would be particularly relevant and would be a good indicator of whether the person’s past conduct was intended to engage in persecution or whether some superseding reason resulted in the person engaging in such conduct. Also, because deportation is not considered a deprivation of a constitutional right, the due process safeguards need not be as stringent. In the case of child soldiers, this would draw in those factors that negate an intent to persecute, despite the fact that the child engaged in the act of persecution or assisting in the persecution. It would, however, exclude even those child soldiers who intended to engage in the violent conduct and who had no superseding reason for engaging in such conduct.

Page 23 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

B. Armed conflict as a defense This article also previously raised implications of Geneva Conventions protection. An exception could be included that so long as the person’s conduct fell within the proscriptions of the Geneva Conventions, an immigration judge could not find that the person engaged in persecution. The Geneva Conventions recognize two classes of armed conflict, conflict between State-members to the Geneva Conventions and conflicts “not of an international character.”115 An exhaustive review of the obligations and prohibitions under the Geneva Conventions is unnecessary. Universally recognized is that the Geneva Conventions do proscribe appropriate conduct for military personnel in an armed conflict.116 Thus, if such an exception existed, it would prevent individuals who were engaged in legitimate conflicts from being viewed as having persecuted others, so long as their individual conduct was found to be legal within the context of the Geneva Conventions. Such a concept is not new. Courts have adopted a similar notion. Consider the case of Matter of Rodriguez-Majano.117 Rodriguez-Majano was a citizen of El Salvador caught in the middle of a conflict between the El Salvador government and guerillas seeking to overthrow the government.118 Forcibly recruited by the guerillas, Rodriguez-Majano found himself driving guerillas to battle sites as well as transporting supplies.119 Later he was drafted as a guerilla and taught in a military camp how to fight.120 At one point, he would act as a lookout, during which the guerillas would engage in “propaganda runs.”121 Eventually, he was caught by government forces and severely beaten for his involvement.122 He was prosecuted in an El Salvador court but was released as a result of “his lawyer’s influence” with the court.123 He soon fled El

115 Geneva Conventions, supra, note 21, at art 3. 116 See generally, supra, note 21. 117 19 I.&N. Dec. 811, Interim Decision (BIA) 3088, 1988 WL 235466 (1988). 118 Rodriguez-Majano, 19 I.&N. Dec. at 812. 119 Id. at 813. 120 Id. at 813-14. 121 Id. 122 Id. at 814. 123 Rodriguez-Majano, 19 I.&N. Dec. at 814. Page 24 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

Salvador and came to the U.S. 124 The immigration judge found that Rodriguez-Majano was excluded from being granted asylum because he had engaged in the persecution of others under the INA.125 However, on appeal, the BIA found that the actions of Rodriguez-Majano, while joined with the guerillas, were not persecution.126 Instead, his actions were consistent with soldiers engaged in a civil war. Here, the BIA expressly looked at the motivations of the group alleged to have engaged in the persecution and specifically articulated that the intent of the asylum seeker must be considered. The BIA stated: Thus, the drafting of youths as soldiers, the unofficial recruiting of soldiers, by force, the disciplining of members of a rebel group, or the prosecution of draft dodgers are necessary means of achieving a political goal, but they are not forms of persecution directed at someone on account of one of the five categories enumerated in section 101(a)(42)(A) of the Act. We have already determined that forcible recruiting by dissident groups engaged in a civil war is not persecution because it is not motivated by a desire to harm one the guerrillas find offensive or who has characteristics they wish to overcome.127

However, Rodriguez-Majano must be read with caution. The purpose of including the language of exclusion on the basis of participation in persecution was historically meant to deny Nazi members, and by extrapolation, those who engage in international crimes such as crimes against humanity, war crimes, and genocide, from obtaining protection in the U.S.128 By incorporating specific reference to Geneva Conventions, however, this can be averted and child

124 Id. 125 Id. at 815. 126 Id. Here the BIA found that “the immigration judge in this case gave too expansive a definition of the statutory term ‘persecution.’ The evidence of record does not indicate that the guerillas here referred to engaged in persecution.” 127 Id. at 815-16. 128 Higuit, 433 F.3d 417, 421 (4th Cir., Jan. 3, 2006). The Higuit court found that persecution need not be limited to physical harm. However, more importantly, the court determined that the language of the INA with regard to the issue of persecution mirrored that of the Holtzman Amendment, designed to deny relief to Nazis who ordered, incited, assisted, or otherwise participated in” the persecution of others. Id. Page 25 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

soldiers can still be granted refuge, because the burden would be on the asylum seeker to show that his or her conduct fell within the proscriptions of the Geneva Conventions. Furthermore, it is presumed that conduct that fits within the parameters of the Geneva Conventions would not create international crimes such as aggression or war crimes that would, as their by-product, be susceptible to being interpreted as being a plan of persecution against others.

VI. CONCLUSION The practice of asylum law can be particularly heart-wrenching. Obvious to all involved is the risk that the person will be deported and will face persecution upon return to their country. As this article has briefly illustrated, persecution can range from harassment to serious bodily injury and death. Therefore, recognizing that with the myriad of world conflicts, whatever their bases, international law has imposed upon States a responsibility to provide refuge to those who can no longer rely on the protections of the law in their residence States.129 International law, however, does not require States to presume the burden of accepting every refugee or asylum seeker.130 Thus, a balance must be struck between the interests of the State and the obligations of providing refuge. This balance is created through the implementation of domestic laws. With child soldiers, however, finding this balance is particularly difficult, especially under U.S. asylum law, because, as was described above, the INA bars granting asylum to those who engaged in the persecution of others.131 By virtue of having engaged in any conflict, child soldiers seeking asylum in the U.S. face the question of whether they engaged in the persecution of others. Unfortunately, INA section 101(a)(42) can be read to impose strict liability. There is no express provision that the individual had intended to engage in the acts of persecution nor are there any defense provisions for engaging in conduct, which pursuant to international treaties be considered appropriate conduct for one engaged in armed conflict. Without the inclusion of these provisions, immigration judges are statutorily bound to deny asylum to an entire class of

129 Refugee Convention, supra note 11at art. 1. 130 See Refugee Convention, supra note 11 at preamble. 131 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)). Page 26 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article. CENTER FOR VICTIM AND HUMAN RIGHTS 201 N. Illinois Street 16th Floor, South Tower, Indianapolis, IN 46204 E-mail: [email protected] Phone: (317) 610-3427 www.cvhr.org

asylum seekers, who irrefutably require the greatest amount of protection, children. Therefore, the premise of this article has been to advocate for the amendment to section 101(a)(42), to include both an intent requirement as well as a defense that would preclude exclusion on the grounds of participation in persecution under the Geneva Conventions. Without such amendments we leave those who need the protection with an impossible choice best illustrated by a tale told to children in Sierra Leone: Pa Sesay, one of my friend’s grandfather, had told us many stories that night, but before he began the last story, he repeatedly said, “This is a very important story.” He then cleared his throat and began: “There was a hunter who went into the bush to kill a monkey. He had looked for only a few minutes when he saw a monkey sitting comfortably in the branch of a low tree. The monkey didn’t pay him any attention, not even when his footsteps on the dried leaves rose and fell as he neared. When he was close enough and behind a tree where he could clearly see the monkey, he raised his rifle and aimed. Just when he was about to pull the trigger, the monkey spoke: ‘if you shoot me, your mother will die and if you don’t, your father will die.”132

132 ISHMAEL BEAH, A LONG WAY GONE 217 (2007). Page 27 of 27 © Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article.