Puzzles About Child Soldiers Bans

by Eugene Kontorovich

Representatives of fifty-eight nations met in Paris to sign a non-binding accord on child soldiers. The signatory states pledge to not use anyone under the age of 18 in hostilities. The statute of the International Criminal Court treats the use of soldiers 15 and under as a war crime.

Given the supposedly global international law norm against capital punishment those under 18, I’m surprised that so few nations have signed the new “Paris Principles.” If it morally repugnant, if it is incompatible with civilized practice, to execute a 17-year old who deliberately committed brutal murders, why is it any better to send an entirely blameless 17-year old to be killed, or maimed, or tortured? To be sure, sending a minor to the front lines does not gaurantee that he will be killed, but nor does sending him to death row. And I would expect that in absolute numbers, far more minors will die in combat than through capital punishment. However, only a small fraction of nations that have pledged to end capital punishment for those under 18 have made the same promise about their use in hostilities.

One thing does seem to make a child soldiers ban different and thus may explain the large difference in participation between it and the juvenile death penalty ban. As in any limitation on war, reciprocity is crucial; if one potential belligerent forgoes child soldiers while its enemy does not do so (either in promise or in practice), the former is placed at a disadvantage. Not executing juveniles, by contrast, is a purely internal matter that cannot change any balance of strength. This is not the kind of moral, humanizing considerations that inspire such bans, but the difference in participation suggests they still play a role in states’ thinking about sending their children to die.

Enforcing child soldier bans will be quite difficult, even for well-intentioned countries, and especially in areas where record-keeping of age is not well organized. The Internatioanl Criminal Court’s first trial will be of an African warlord for using child soldiers. Tragically, this is a common feature of African civil wars, as powerfully dramatized in the recent movie “Blood Diamond.” Needless to say, at least half the parties to a civil war have not made any treaty committments in this regard. The biggest effect of these agreements may be be to reduce the already miniscule number of under-18 soldiers from European states that might participate in combat.
While in many conflicts, the leaders prefer children in the first instance, in many conflicts child soldiers are used as a last resort. If I recall my history lessons, even Nazi Germany only started throwing 15-year old Hitlerjugen into battle in the last months of the war, as Germany was being overrun and devestated. Such desperate measures are hard to deter.

The African civil wars, characterized by a purposeful kidnapping and mass conscription of youth without regard to age is one paradigm of the use of child soldiers. Allowing 17-year-olds to volunteer with parental consent, as the U.S. does, seems to be an entirely different phenomenon, and it is not clear how it is helpful to lump them together.

Another interesting thing about child soldier agreements is that their impact may wary greatly depending on a nation’s demographics. Iran, for example, has an extremely young population, with 26% being under 15 and the median age being 25; in France, it is 18% and 39. “Old” Europe gives up relatively little in these agreements, and will probably abide by them more.

Finally, if there is any area where uniform international standards seem to make the littke sense it is in defining when childhood ends — i.e., a specified global age of adulthood. If anything is culturally constructed as well as biologically based, it is childhood/adulthood. Indeed, some have argued that the very notion of adolescence is a modern invention. But certainly the social expectations and social role, and thus the developmental maturity, of 16-year olds varies greatly around the world. It is a function of economic circumstances, social conventions, religious norms, and more. A 15-year old in an agricultural economy may be more adult in many ways than a 21-year-old American college kid. The Declaration on the Elimination of Discrimination against Women recognized that women’s roles are socially constructed. So too with adulthood. This is not in any way to advocate the use of child soldiers, only to suggest that little can be gained by stipulating one-size-fits all interantional standards in this regard. Nor can one say that a bright-line rule helps enforcement, as there will probably be little of that in any case.

(At the same Paris conference, the nations signed a treaty against using secret detentions in the war on terrorism. Enforcement of such norms will of course be difficult, since the detention are presumably — secret.)

http://opiniojuris.org/2007/02/07/puzzles-about-child-soldiers-bans/

One Response

  1. Professor Kontorovich,

    I’m afraid I have little to say on the main subject of your post, except that the debate about the (lack of) enforcement of international law, and some resulting doubts as to the efficacy of its norms is, of course, far from new. I feel there is little to be gained from me providing the umpteenth statement of the pro-IL reasoning on this point (it is the actual compliance that counts, etc.); I might, indeed, admit that I share some of these doubts, though not in the form of criticism, more of regret.

    I have a few comments, though, on your brief reference to the treaty banning secret detentions. You make a valid point, in a poignant and slightly amusing way, but I would argue that the treaty is of more merit than you might possibly admit.

    I should remark, first of all, that the prohibition is, of course, not new. The ‘right to liberty and security of person’ (Articles 9 ICCPR, 5 ECHR) is patently violated where the detention of an individual is not even so much as acknowledged by the State holding him or her (see e.g. Bazorkina v. Russia, para. 146). The new treaty merely reaffirms that secret detentions are not permissible. I have a feeling we all know why it does this, and I am sad to say it is nothing to do with either Russia or Turkey (the principle culprits under the ECHR in this respect).

    Of course, every single one of the many European cases on secret detentions (otherwise known as ‘disappearances’, to call a spade a spade) show also that the secrecy will never be complete. Someone will always notice the disappearance of the secret detainee, and once that is (easily) established, it is enough for a finding of a violation to show that the person was last seen with or otherwise known to have been arrested by agents of the detaining State (see again Bazorkina, supra, at para. 147).

    As President Bush has found, the truth will come out at some point, and when it does, the moral condemnation of the secret detention will be all the stronger for all the attempts to keep the whole disgraceful thing under wraps. The new treaty might not add much to this, but if it does, it will have done some good.

    There may, of course, be another aspect to the secrecy of the, well, secret detentions. As el-Masri v. Tenet has shown, an American court asked to review and provide redress against the secret detention may well be bound by the so-called ‘state secrets doctrine’ to decline to hear the case.

    Now, el-Masri did not concern (only) the secret detention of Mr el-Masri, but more fundamentally, the subjection of the – completely innocent – Khaled el-Masri to what is now known by another euphemism as ‘extraordinary rendition’. This was shrouded in secrecy, and this classified material was at the very heart of Mr el-Masri’s case; the case therefore had to be dismissed.

    But would it not be quite absurd to apply a similar solution to a case of secret detention? Surely, it is the very fact of the classification of the detention that is objectionable, in morality as in law. To be sure, the judge in such a case could not, when faced with a plea of state secrets by the government, turn around and say ‘Ah, the violation is conceded. There will be judgment for plaintiff.’, funny though that would be; the fact of the detention as such would still have to be established. But if that much is clear, principally from the fact of the arrest, taken with the subsequent disappearance of the plaintiff (see above), would it not be utterly ridiculous for the court to dismiss the case?

    Of course, the court can only dismiss the case under the state secrets doctrine if there is no other way of protecting the secrets, while still giving the plaintiff ‘his day in court’, and the evidence in question must have been classified bona fide (on this, I take the liberty to refer to a blog post of mine, with citations of authority there). The latter point, in particular, seems to me to be just about unarguable for the government if there is an international prohibition against secret detentions.

    In addition, there may be a compelling case here from accepting an alteration to the American justiciability doctrines here that has been accepted by English judges already: they hold that the substantive rules at issue in a case can reflect such a strong legal interest in having the matter litigated that the ordinary rules on justiciability will have to give way (see Republic of Ecuador v. Occidental Exploration and Production Co. [2005] EWCA Civ 1116, [2006] 2 WLR 70, at paras. 31 et seq.), and accordingly, to give an example, that cases under the ECHR will not be dismissed for want of justiciability (see R (Gentle) v. The Prime Minister [2006] EWCA Civ 1690, para. 26). Once this is accepted (which it certainly will not be), the case becomes very easy. The substantive law, in banning secret detentions, sets its face firmly against the classification in question. The state secrets doctrine can therefore not in reason bar the court from hearing the case.

    Anyway, I hope to have substantiated my point that the prohibition of secret detentions does make real sense. I should add that I do not necessarily see this as an attack on your point, as your comment was, of course, very brief and quite possibly not exhaustive of your thoughts on the matter.

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