Another of Professor Birdsong’s favorite studentss, Chris Cortolillo, has written an interesting paper on child soldiers who seek asylum in the United States. Read it and learn something about the topic.
Between a Rock and a Hard Place: The Challenges Facing Former Child Soldiers of the War on Terror in Seeking Asylum in the United States.
Chris Cortolillo
Part I- Introduction
Child soldier. The term conjures up images of scenes from popular television programs and feature films like 24[1] or Blood Diamond[2], where young children armed with AK-47s actively engage in combat with government forces in some of the poorest countries in the world. The fact of the matter is that reality is oftentimes exponentially more tragic. A child soldier’s actions and responsibilities within an organization vary greatly and extend beyond the stereotypical idea of what most people would consider a “child soldier.” While there is no precise definition, many international organizations have put forth their own descriptions. For example, The Coalition to Stop the Use of Child Soldiers defines a child solider as,
“Any child, boy or girl less than 18 years of age, who is recruited compulsorily, by force or otherwise with the intention of using him or her for combat by armed forces, paramilitary forces, civil defense units, or other armed groups. Child soldiers are used as combatants, forced spouses, messengers, porters or cooks, or sexual services…”[3]
To be considered a child soldier under this definition, three conditions must be met:
1.The soldier is a child under the age of 18,
2. The soldier was recruited against his or her will, and
3. It was the intention of the recruiting force to use the services of the child within an armed group.
A conservative estimate under this definition is that there are approximately 300,000 children serving as soldiers around the world. As the definition suggests, their roles are not always that of the the “gun-toting fighter.”[4] It does not only refer to a child who is taking or has taken a direct part in hostilities. Child soldiers many times serve multiple roles ranging from combatant to cook, servants to spies. And the use of child soldiers is not restricted to gender. Young females are forced to entertain the troops or act as “wives” to adult fighters.[5] If they spurn any sexual advances, they are at risk of being raped or killed, with rape a frequent occurrence[6].
The question is, why do they fight? As previously mentioned, the majority are regularly recruited by force. Threats of violence, torture, or death are not uncommon. The Lord’s Resistance Army, which has been fighting the Ugandan government for over 20 years, will often use drugs and other mind-altering substances in order to make child soldiers more pliable and easier to control.[7] During their initiation, children are beaten and smeared with shea nut oil, ostensibly to harden them to the life of the soldier and make them easier to find.[8] If any ran away, they were tracked, tortured, and more likely than not killed by fellow child soldiers.[9]
While forced recruitment certainly accounts for the majority of child soldiers around the world today, a smaller but increasingly more dangerous percentage are those who “volunteer” to become part of these armed groups. However, the term “voluntary” must be taken with a grain of salt. There are different reasons why a child may decide to volunteer to become involved in armed conflict. The UN Study on the Impact of Armed Conflict on Children suggests that as economic and social conditions become worse, educational opportunities become more and more limited, children sees their alternative options relatively sparse.[10] In addition, some feel that, surrounded by violence and the constant threat of great bodily harm or death, it is better to be armed, one way or another.[11] Still others, indoctrinated by their families, communities, and religion are coerced to volunteer. These child soldiers are seen as “true believers,” willing to lay down their lives and die for a cause they do not truly understand. While the reasons are varied, research suggests that the voluntariness of the choice of these children is suspect. Unlike adults, children, by their very nature, are limited in their ability to make informed or free choices.[12]
Throughout its history, the United States of America has been among the world’s leaders in advancing humanitarian objectives and offering asylum to refugees fleeing persecution.[13] Indeed, the young country has been known throughout the world as a beacon of light and freedom. This point can be no better illustrated than by the inscription on the bronze plaque at the Statue of Liberty. It reads, in part,
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”[14]
However, since the tragic events of September 11, 2001, the United States has struggled to maintain those ideals. The threat of terrorism has forced the federal government to choose between national security and humanitarian issues.[15] And while a few attempts have been made, the efforts have been largely successful, unfortunately at the expense of truly deserving asylum applicants.
In this paper, I will discuss the obstacles and challenges former child soldiers face when applying for asylum. Part II will lay the foundation, discussing legislation, both adopted internationally and within the United States, passed to address the growing concern for child soldiers around the world. Part III will go into the problems the United States faces as it encounters child soldiers on the battlefield in the War on Terror. And finally, Part IV will debate possible solutions for treating child soldiers differently in the asylum process.
Part II- Legislation
The body of law concerning refugee and asylum claims is a veritable minefield of circular logic and at times contradictory statements. There is legislation, statutes, protocols, optional protocols, guidelines, conventions, and United Nations recommendations- and that is just international law. Asylum for former child soldiers has become, especially in recent years, a hot-button issue. Whereas the use of child soldiers in the various conflicts in Africa has been going on for decades, that exercise has gained significant attention due to the ongoing campaigns in Iraq and Afghanistan. However, neither international nor United States refugee law specifically addresses how child soldiers should be protected when seeking asylum.[16] While navigating the sea of legislation may seem like a daunting task to the uninitiated, like most things in life, it is best to start at the beginning.
A. International
The process of creating an international body of law that would afford protections to refugees dates back to the beginning of the 20th century.[17] It was only following the destruction caused by World War II that the United Nations came together to form cohesive legislation.[18] The 1951 Convention Relating to the Status of Refugees was approved on July 28, 1951.[19] For the first time, there was an international law that specifically dealt with the issues of refugees. Unfortunately, the 1951 Convention was tailored to specifically protect European refugees fleeing the devastation of the war. Under the 1951 Convention, a refugee is defined as applying to any person who,
As result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, in 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…[20]
In addition, the term “events occurring before 1 January 1951” was determined to be understood to mean events occurring in Europe.[21]
Potentially more importantly, the Convention states that application of the term “refugee” should not apply in certain circumstances. As set for in Article 1F, there are three general barriers to being defined a refugee:[22]
1. He has committed a crime against peace, a war crime, or a crime against humanity,
2. He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee,
3. He has been found guilty of acts contrary to the purposes and principles of the United Nations.[23]
Also excluded from the Convention were those receiving protection or assistance from a United Nation agency other than the United Nations High Commissioner for Refugees.[24] For example, this provision (Article 1D) applies to Palestinians even today.[25]
While the 1951 Convention was a milestone of its day in finally defining the term “refugee,” the bulk of the text relates to the status, rights, and treatment of persons who fall under that definition and are within the territory of a Convention signatory.[26] The Convention provides two basic guarantees:
1. No refugee may be returned to a land where her life or freedom would be threatened, and
2. those refugees who have been lawfully admitted to the receiving state are guaranteed equal treatment in exercising enumerated civil and political rights.[27]
Surprisingly, while the Convention states that refugees who have been lawfully admitted are guaranteed certain rights, it does nothing to require sovereign nations to admit refugees. Taken along with Article 33 of the Convention (the nonrefoulement provision),[28] at most it seems that receiving states must protect against refoulement. According to the strict letter of the Convention, a receiving state is only required to not return the refugee to a state where their life or freedom would be threatened.[29] However, in practice, most states have taken it upon themselves to enact domestic legislation and procedures that offer refugees some type of legal status that would allow them to remain in the country and earn a living.[30]
The geographical and temporal restraints of the 1951 Convention were remedied by the 1967 Protocol Relating to the Status of Refugees.[31] In pertinent part, the Protocol states:
“2. For the purposes of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the convention as if the words ‘As a result of events occurring before 1 January 1951 and…’ and the words ‘…as a result of such events’, in article 1 A (2) were omitted.”[32]
With the adoption of the Protocol, the definition of a refugee became truly universal.[33] No longer were displaced persons disqualified from the protections of the Convention due to the previous constraints. The United States, while not a party to the 1951 Convention, did ratify the 1967 Protocol.[34]
A further legislation to protect the rights of refugees came in the form of The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment ratified in 1984.[35] The purpose of The Convention Against Torture, or CAT, was to prevent acts of torture within the territory of states party to the convention by acknowledging that there are certain unalienable rights inherent in all people, and these rights form the foundation of freedom, justice, and peace in the world.[36] Torture, as defined by Article 1 of CAT, means
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
In addition, CAT also has its own nonrefoulement provision. Unlike the 1951 Convention, the nonrefoulement provision under CAT has no qualifications.[37] Because the purpose is to protect the inherent rights of all people, the Convention Against Torture applies to everyone, regardless of past offenses- even those that would normally be found disqualified under the 1951 Convention’s barrier.
B. United States
While the United States is a signatory to the 1967 Protocol (and, by virtue, the 1951 Convention) and the Convention Against Torture, there are two statutory bars to asylum based on the Immigration and Nationality Act- the persecutor bar and the material support bar. The persecutor bar explicitly excludes “any person who ordered, incited, assisted, or otherwise participated in the persecutor of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”[38] This reflects the bars put in place by the 1951 Convention, but is more broad because the term “persecution” is not defined within the Act.[39] There is a split within the circuits as to whether the persecutor must have acted voluntarily.[40] The Ninth Circuit, in particular, requires that in order to find that an alien assisting in persecution, a court “must undertake a particularized evaluation of both personal involvement and purposeful assistance in order to ascertain culpability.”[41]
Far more likely, a former child soldier will be denied asylum based on the “material support” bar. The series of antiterrorist legislation following September 11, 2001 created the material support bar currently in effect.[42] Unfortunately for most asylees, the definition of material support is so broad that it could potentially include seemingly innocuous actions that are later deemed “in support of terrorist organizations.” Any support, no matter how small, would be considered material. For example, “if a person gave ‘even a glass of water’ to a member of an armed group, that act would qualify as material support.”[43] Currently, the only defense to a material support charge is that the applicant was literally unaware that he was providing support. The applicant must show by clear and convincing evidence that he did not know and should not have reasonably known that the organization was a terrorist organization.[44]
It was in Lukwago v. Ashcroft that the perimeters for a former child solder’s claim for asylum was determined.[45] Lukwago was kidnapped by the Lord’s Resistance Army at the age of 15 after witnessing the murder of his family. He was forced to perform manual labor for the group and was often made to witness the horrible atrocities committed on innocent civilians.[46] Lukwago was threatened with severe beatings or death if he tried to escape.[47] These threats were backed by their actions, with Lukwago forced to watch the beating of a fellow child who attempted to escape.[48] Luckily, Lukwago was able to finally escape to the United States after being held for four months.[49]
Lukwago was denied asylum at both the Immigration Hearing and the Board of Immigration Appeals because both found that he failed to establish he had suffered past persecution, or had a well-founded fear of future persecution.[50] The Third Circuit reversed, holding that Lukwago, as a former child soldier, qualified for asylum based on membership of a particular social group, stating that his age was a common immutable characteristic.[51]
Part III- Child Soldiers, the Middle East, and Terrorism
As stated above, the child soldier epidemic is not restricted to Africa. United States personnel are increasingly encountering underage fighters in Afghanistan and Iraq, and it is inevitable that these confrontations will only increase. But how should the United States, and more importantly United States soldiers, react? If a 14-year old points a weapon at a U.S. soldier with the intent to use it, what are the rules of engagement? A soldier who finds himself in that position is faced with the prospect of firing or being fired upon. Obviously, no one wants to kill a child, but a 14-year old with an AK-47 is just as deadly as a 40-year old.[52]
The implications for U.S. forces encountering children on the battlefield are numerous. The killing of a child on the battlefield can have a huge impact on the morale of a soldier. For example, when U.S. forces during World War II were fighting units from the Hitler Youth, their morale was at its lowest when it should have been at its highest.[53]
That said, the International Humanitarian Law (often referred to as the laws of war) specifically sets out how child soldiers should be handled when encountered on the battlefield. In pertinent part, it states that soldiers confronting child soldiers can act in self-defense, using minimum force, and in furtherance of the military mission.[54] Captured child soldiers should be provided with due process. Children, in this context, would include those who were captures while under the age of 18, but who, at the time of trial, were over 18.[55] The IHL stresses that the arrest, detention, and imprisonment of child should be a last resort and for the shortest appropriate period of time. However, in regards to child soldiers, they may be detained until the end of hostilities without being charged with a particular offense.[56] Since the beginning of the War on Terror not long after September 11, the United States has detained over 2,500 juveniles as enemy combatants, 100 in Afghanistan and a staggering 2,400 in Iraq.[57] The majority of those held are for, “engaging in anti-coalition activity.”[58] 90 have been held in Bagram, Afghanistan and eight were brought to Guantanamo Bay Detention Facility.[59] Of those, only 10 remain at Bagram and one at Guantanamo.[60] The following case highlights the difficulties in handling child soldier cases within the United States system.
Omar Khadr
The story of Omar Khadr, a Canadian citizen born on September 16, 1987 captured in Afghanistan on July 27, 2002 at the age of 15, is a sad one regardless of political ideology. He was arrested on charges that include throwing a grenade at U.S. soldiers, killing a Marine medic.[61] Since his arrest, Khadr has been held at both Bagram Air Force Base in Afghanistan and Guantanamo Bay Detention Facility in Cuba. He was tried in the first group of military tribunals in the United States’ War on Terror. However, those results were overturned by Hamdan v. Rumsfeld in July of 2006.[62] To date, he is the only Western-born detainee arrested on terror-related charges that has not been repatriated back to his country.[63]
Omar Khadr is the son of Ahmed Said Khadr, an Egyptian-born humanitarian worker. The elder Khadr worked with a number of charities that served Afghan refugees during and after the Soviet invasion of Afghanistan of the 1980s.[64] Early on, Ahmed’s activities drew no noticeable attention from authorities. Through various charities and non-governmental organizations, he used his money and influence to repair infrastructure destroyed by the Soviets during the war, set up hospitals for the indigent, and build orphanages for children.[65] His reputation allowed him to use his prestige to negotiate peaceful compromises between rival warlords.[66] However, officials soon began to wonder about his potential sinister motives. It was through these organizations that Ahmed Khadr became acquainted and forged close alliances with various mujahideen commanders, including al Qaeda leader Osama bin Laden.[67]
Khadr’s early life was a hectic one. His father’s activities in Pakistan and Afghanistan, along with his increasing distrust of the West, necessitated that Omar and his five siblings be shuttled back and forth from Canada to Pakistan frequently. When asked why they felt Canada had become particularly unappealing to raise their children, Khadr’s Egyptian-born mother, Maha Khadr, stated, “Would you like me to raise my child in Canada and by the time he’s 12 or 13 he’ll be on drugs or having some homosexual relation?”[68] It was during his time in Pakistan that Omar himself was introduced to Osama bin Laden.[69] Pakistani intelligence officials believe it was during the late-1990s that Ahmed Khadr began diverting funs from his charity, Human Concern International, to support al Qaeda activities.[70] Due to his father’s close ties with the al Qaeda leader and the escalating scrutiny by the Pakistani government, the Khadr family spent a great deal of time at bin Laden’s compound in Afghanistan, where the children received military training.[71] Indeed, one of Omar’s brother Abdurahman, referred to the Khadr clan as “an al Qaeda family.”[72]
On July 27, 2002, after the invasion of Afghanistan by coalition forces, Khadr accompanied three men he was staying with to a meeting with other militants. Tracked by a satellite telephone believed to be owned by the Khadr family, a group of approximately fifty American soldiers and members of a local Afghan militia set up a perimeter around the compound.[73] After negotiations failed, gunshots erupted from the mud huts. Faced with gunfire and rocket-propelled grenades, reinforcements were called in- an additional fifty soldiers, six helicopter gunships, and a pair of F-18 Hornets.[74] Amid relentless bombing, the compound was destroyed.
Assuming all inhabitants had been killed by the airstrike, the soldiers began sifting through the debris. It is here that the stories begin to differ. The military’s version of the events state that while an American special forces unit was searching the houses for weapons and evidence of terrorism, the 15-year old Khadr threw a grenade at the approaching forces.[75] The explosion injured Delta Force member Sgt. Christopher Speer, who succumbed to his injuries two weeks later.[76] The shrapnel from the explosion also injured Khadr, permanently blinding him in his left eye. Sources differ, however, and the only witness to the incident, OC-1, states that he then shot Khadr twice in the back.[77]
Surprisingly, Khadr survived. The medics who were brought in the stabilize him reported that he asked them several times to kill him, taken aback by his English.[78] An officer present wrote in his journal that he almost obliged the young man, before Delta Force soldiers ordered that the prisoner was not to be harmed.[79] Khadr was loaded up and taken to Bagram Airbase to receive medical attention. A subsequent search of the premises revealed a secret cache of weapons and explosives in an underground chamber. In addition, a videotape was recovered, purporting to show Omar Khadr playing with detonation cords and planting land-mines while joking with the cameraman.[80]
Despite his severe injuries, it has been reported that interrogations began immediately after he regained consciousness a week later. It was in September of 2002 that he apparently confessed to interrogators, stating that he had heard someone was offering $1,500 for each American soldier killed in Afghanistan. When asked how that made him feel, he replied, “I wanted to kill a lot of American[s} to get lots of money.” Allegations of abuse during his time at Bagram, including extensive labor meant to aggravate his injuries and being refused bathroom breaks so that he would urinate on himself, are uncorroborated. After three months of recuperation, Khadr was sent to Guantanamo Bay Detention Facility.
The interrogations continued. Officials considered him an “intelligence treasure trove,” not because of his family ties, but because he had personally met Osama bin Laden and could potentially identify other members of al Qaeda leadership, despite being only 10- years old at the time of the meeting. His stay at Guantanamo early on was a a lonely one. A 15-year old child subjected to constant intimidation and interrogations at the infamous Guantanamo Bay prison, Khadr was reported as being depressed and tearful. Any sign of humanity touched him deeply. Given an English Mickey Mouse book by one of his interrogators, Muslim Chaplin James Yee recalled that he would frequently huddle in the corner of his jail cell and fall asleep with it clutched to his chest.[81]
Shortly after his 18th birthday in 2005, Omar Khadr was formally charged with four crimes before the Guantanamo military commission.[82] These charges included:
1. Conspired with Osama bin Laden and other members of al Qaeda leadership to commit murder and engage in terrorist activities against civilians.
2. Murder by an unprivileged belligerent in the death of Sergeant First Class Christopher Speer, U.S. Army.
3. Attempted murder by an unprivileged belligerent in the laying of land-mines and improvised explosive devices with the expressed purpose of killing U.S. troops.
4. Aiding the enemy by intentionally supporting al Qaeda.[83]
However, due the to ruling in Hamdam v. Rumsfeld, the military commissions were held to be unconstitutional.[84] In response, Congressed passed the Military Commissions Act, which authorized trial by military commission for violations of the law of war.[85] Classified an an unlawful enemy combatant, Khadr was subsequently charged with Murder in Violation of the Law of War, Attempted Murder in Violation of the Law of War, Conspiracy, Providing Material Support for Terrorism, and Espionage, all for the same reasons as stated above.[86] On October 25, 2010 Khadr pled guilty to murder in violation of the laws of war, attempted murder in violation to the laws of war, conspiracy, two counts of providing material support for terrorism, and spying.[87] According to his deal, Khadr will serve one more year at the Guantanamo Bay Detention Facility and then be sent back to Canada to serve the remainder of his eight-year sentence.[88]
This case highlights the problems inherent with the child soldiers, terrorism, and how the United States deals with both. Even assuming the military’s recount of the events as true and Omar Khadr is every bit the terrorist they say he his, one must wonder exactly how much of a choice this young man had. Though he was born in Canada, a relatively liberal Western country, he was shuttled to and inside countries ruled by radical Islamic governments. Indoctrinated at a young age by a father who has been described as a high-ranking al Qaeda operative, Khadr was trained to fight the “infidels.” A collection of biographies written by the al Qaeda organization praised Ahmed Khadr for “tossing his little child in the furnace of the battle.”[89] Even now, while locked down in solitary confinement in Guantanamo Bay, Khadr is at risk of becoming even more radicalized. Throughout his time at Guantanamo, he has consistently opposed rehabilitation. The psychiatrist who spent time with Khadr testified that he was manipulative and a bigger threat today than he was when he first arrived eight years ago.[90] Terrorism expert Thomas Joselyn described Khadr as “being loyal to Osama bi Laden and Al Qaeda and regards what he did as a badge of honor.”[91]
Cynics claim that the guilty plea was a political maneuver on the part of the Obama administration to avoid the potentially embarrassing prospect of the young man taking the stand and revealing the abuse he alleges to have experienced while at Guantanamo Bay.[92] These brutalities include, “being refused pain medication, having his hands tied to a door frame for hours at a time, dousings with cold water, threats by military dogs, being forced to urinate on himself due to his captors refusal to let him use the toilet, and being forced to carry five-gallon pails of water to aggravate his shoulder wound.”[93] Another upsetting revelation came when it was revealed that Joshua Claus, the chief U.S. Army interrogator in charge of Khadr’s questioning, pleaded guilty to detainee abuse in 2005 after a wrongly accused Afghan prisoner died while in his custody.[94] David York, who won an Emmy in 1997 for his documentary “Gerrie and Louise” chronicling South Africa’s Truth Commission, stated:
“In fact, I’m not sure it’s a deal at all… Legally, a deal cannot be coerced for it to be valid. It presupposes a non-coercive relationship. In Omar’s case he was captured by the military, spirited away, tortured, interrogated, and brought by sham legal processes before a military judge and military lawyers who were able to decide which witnesses the defense would be able to call, and which evidence would be released to the defense team. Khadr and his lawyers– and any sort of neutral observer– had to have come to the conclusion that he was not going to get a fair trial. So he was forced to do a deal.”[95]
But what are the options? Behind the scenes, the United States government has been pressuring Canada to accept repatriation of Khadr[96] because there are elements within the Obama presidency that “don’t have the stomach to try a child for war crimes.”[97] Although Canadian Foreign Minister Lawrence Cannon has stated that it is his government’s position that they would implement the agreement made, Canada was not a party to the plea deal and is under no legal duty to consent to Khadr’s transfer to Canada.[98] If Canada, a country where he is a citizen and has family, were to reject Khadr, there are few alternatives. He cannot be sent back to Afghanistan- the chances he will be kidnapped or killed are too great.[99] The chances of him being released in the United States are distasteful to many people for many reasons. Unfortunately, it looks as though Omar Khadr, whose only crime seems to his unlucky upbringing and the hatred fed to him by terrorists, has the potential to be stuck in a no-man’s land (or no-child’s land).
Part IV- Possible Solutions
Critics of the United States’ stance on asylum claims for children argue that the immigration law stands in contradiction to criminal law within the country.[100] For example, a child and adult are, generally, treated the same under immigration law and asylum claims, but enjoy different standards of culpability and rights under U.S. criminal law.
A. Heightened Duress
The concept of duress as a defense has been accepted by the Supreme Court and the Model Penal Code. That does not mean its application has not been contention. According to Antonin Scalia in his concurrence in Negusie v. Holder, [t]he culpability of one who harms another under coercion is, and has always been, a subject of intense debate, raising profound questions of moral philosophy and individual responsibility.[101] To successfully argue duress, there are four core requirements that must be met:
1. Threat must be of serious bodily harm or death,
2. The harm threatened must be greater than the harm caused by the crime,
3. The threat must be immediate and inescapable, and
4. The defendant must have become involved in the situation through no fault of his or her own.[102]
The Supreme Court has described duress in a footnote as excusing “criminal conduct, if at all, because given the circumstances other reasonable men must concede that they too would not have been able to act otherwise.[103]
The application of a duress exception in the case of former child soldiers is a compelling one. There are key features of the child soldier experience that highlight the appropriateness of a duress exception. First, the young age that most children are recruited makes them more susceptible to coercion. This addressed the fourth requirement which states that the defendant must have become involved through no fault of their own. And, as stated previously, even those children who do sign up “voluntarily” are coerced into their decision by economic, social, or political pressures. Their free will in the decision-making process is suspect.[104] Whether recruited voluntarily or by force, the life of a child soldier is the culmination of barbaric treatment and coercive measures such as threats of great bodily injury or death, and the use of mind-altering substances to control their behavior.[105] Proponents of a duress defense for former child soldiers argue that because their actions cannot be viewed as truly voluntary, denying them the benefit of asylum based on their coerced actions would be unfair.[106]
B. The Defense of Infancy
In general, infancy means that children are presumed incapable of evil and that they lack the requisite mens rea to commit a crime.[107] Due to this presumption, children would be able to avoid criminal liability for their actions. The “infancy exception” applies to the actual age of the child when he or she committed the act and relies on the fact that a child has limited capacity to make moral judgements. Medical studies have shown that the regions of the brain associated with impulse control, risk assessment, and moral reasoning does not fully develop until late adolescence, usually around the age of 16 or so.[108] It is precisely their lack of impulse control, risk assessment, and moral reasoning skills that makes the child soldier so desirable for those armed groups utilizing them. They can become less a soldier and more of a weapon.[109]
No international consensus exists dictating what the minimum age of criminal responsibility should be. However, there are a number of guidelines that supposedly offer some guidance. First, the age should not be so low that it would result in the prosecution of child who were too young to understand the consequences of their actions.[110] Second, consideration of the trend to standardize the minimum age should be taken into account.[111] This means looking to how other countries are handling cases of children who commit crimes. This approach was endorsed by the United Nations Secretary-General when drafting the Special Court’s Statute for Serra Leone, which stated that, “[t]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the offence.”[112]
C. Rehabilitation and Reintegration
Current rehabilitation programs employed by the United States military and Department of Defense have proven woefully inadequate. A recent review by the Director of National Intelligence James Clapper entitled “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba,” combined intelligence gathered by the Central Intelligence Agency and the Defense Intelligence Agency.[113] The findings were striking: of the 598 detainees that have been transferred out of Department of Defense custody and released from Guantanamo Bay Detention Facility, 81 have been confirmed of reengaging in terrorist or insurgent activities, with an addition 69 suspected of the same.[114] Of the 150 former detainees confirmed or suspected of reengaging in terrorist or insurgent activity, the Intelligence Community assesses that 13 are dead, 54 are in custody, and 83 remain at large.[115]
A particularly notorious case of a former Guantanamo Bay detainee returning to insurgent activity is that of Kuwaiti-born Abdullah al-Ajmi. Al-Ajmi was captured in Afghanistan during Operation Absolute Justice.[116] After being transferred to Guantanamo Bay Detention Facility, he admitting to fighting with the Taliban, but denied attacking US forces. Held in the facility for four years, al-Ajimi was released to Kuwait under the Bush Administration’s review process, where he was acquitted of charges of belonging to a terror group.[117] It was two years later that al-Ajmi was mistakenly granted a new passport which he used to travel to Iraq via Syria. On April 29, 2008, Abdullah al-Ajmi attacked Iraqi security forces in Mosul, detonating a car bomb, killing himself and 13 policemen.[118]
Perhaps the most important part of any policy regarding former child soldiers, and former soldiers in general, should be rehabilitation and reintegration. Because most of these children have seen or participated in horrific acts that can potentially affect them socially and emotionally for years to come, a comprehensive program aimed at providing these children with the resources to become productive members of society is necessary. Many times, former child soldiers returning from armed conflict are shunned by their communities based on the atrocities they committed.[119] Experts surveying former child soldiers in El Salvador have reported that family and loved one were the single greatest factor in easing the transition back to a “normal life.”[120] For those seeking asylum abroad, that family presence most likely will not be present. It is important that some sort of inclusive community environment be implemented. Programs that assist in establishing positive relationships and psychosocial support have been shown to be fundamentally successful in the transition.[121] A positive support system is so important that the its role (or lack thereof) in the reengagement of former Guantanamo detainees was highlighted in the “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba.” In it, the Director of National Intelligence stated:
“It is not unusual for former GTMO[122] detainees to communicate with persons in terrorist organizations. The reasons for communication span from the mundane (reminiscing about shared experiences) to the nefarious (planning future terrorist operation). Correspondingly, the Intelligence Community assessed that additional former GTMO detainees will communicate with persons in terrorist organizations.”[123]
While social factors are key, a balance with economic facts are crucial as well. As previously stated, there is a percentage of children who “voluntarily” join armed conflicts due to the economic situation around them. A comprehensive program that includes both social and economic strategies to help the former child soldier create a new image for themselves is critical to becoming a productive member of society.[124] Most child soldiers are pessimistic about their opportunities for education and gainful employment for various reasons. For those outside their country of origin, those fears are multiplied by the fact that they are in a strange and sometimes vastly different place.[125] Education and vocational training should be offered in order to give them the confidence to assert themselves and opportunity to earn a living.[126]
Specifically in terms of those in the Middle East accused of committing terrorist actions, Saudi Arabia has it’s own rehabilitation program. While other Middle Eastern countries have begun their own programs, none are nearly as well-funded and organized as The Kingdom’s.[127] Saudi citizens that have been held in Guantanamo Bay are subjected to an “intensive 6-week course to correct their ideas.”[128] Former detainees are sent to a former desert resort outside Riyadh. There, they swim in a pool, play sports, are given vocational training, and take courses on religious subjects.[129] At the end of the course, the prisoners are given a job and monthly stipend. While the effectiveness of the rehabilitation program is touted by Saudi officials as being the best way to reintegration, recidivism figures from governments around the world show that 20% of former program graduates not only return to extreme activities, but frequently take on leadership positions within terrorist organizations.[130]
Part V- Conclusion
The world today is an infinitely more dangerous place than it was even a decade ago. Before the horrible events of September 11, 2001, Americans were blissfully ignorant of the savageness of the rest of the world. It was not until that wickedness was brought to our own shores that we were awakened from our dream-like view of world events. And it was only when we were confronted with the prospect of encountering children on the battlefield that the problem truly hit home.
A conservative estimate of over 300,000 children are fighting in armed conflicts around the world, and a good portion are in areas where American troops are stationed. The United States is engaged in two conflicts in the Middle East where children are being actively recruited to fight. And with the increasing number of children fighting in war, legislators and the judiciary is confronted with questions of how to deal with them a.) if they are captured on the battlefield, and b) if they renounce their activities and apply for asylum. Neither are easy questions and solutions are difficult to come by.
The increasing problem of child soldiers necessitates that the United Nations comes together as a whole to come up with a universal way of coping child soldier refugees. When various nations have different procedures and regulations regarding how child soldiers should be handled, both in the criminal and civilian world, it is the rights of the child that eventually suffers. This hodgepodge patchwork of who does what, when, and how is becoming increasingly unproductive.
There is no one perfect solution. To be effective, a truly comprehensive rehabilitation and reintegration program for refugees must be established. It is vital that they be afforded the opportunity to educate themselves. Education provides a person with the confidence and skills to go out into the world and become a productive member of society. Psychological help for those suffering from traumatic memories of the atrocities they witnessed should be offered to all. The reintegration program instituted by the Saudi government is a great first step, but I do not believe six weeks is enough time to fully rehabilitate someone who dedicated their life to a terrorist organization. For instance, would a six week course undo the lifetime of enmity toward the West that has been instilled in Omar Khadr? Or the alleged abuses, if true, he endured at the hands of U.S. interrogators while held prisoner for eight years at Guantanamo Bay? No doubt that he has cultivated a deep-seated hatred during his imprisonment and a six week course, no matter how intensive, could not possibly could effective in returning these “former” combatants to peaceful society.
There is no silver bullet, no fool-proof way to ensure rehabilitation succeeds. However, I would advocate a system similar to that of Saudia Arabia’s rehabilitation program, but expanded. As I stated, the Kingdom’s program is a great first step, but it unfortunately does not go far enough. You can’t just put them through a course, give them a job, and just let them go. My system would go something like this:
- An intensive course designed to correct their views on the conflicts raging around the world.
- This would include mentoring by religious, political, and economic experts.
- Education is key- Give a man a fish and he’ll eat for a day; teach a man to fish and he’ll eat for a lifetime. An opportunity to become a productive member of society can be a great deterrent for some of these former insurgents.
- Reintegration into the community- This is perhaps the most important aspect. Without a strong positive support structure in place, it is only a matter of time before the lure to commit jihad overwhelms them. You do not not take an alcoholic right out of rehab and return him to his job as a bartender. The people with whom we surround ourselves have a great impact, good and bad, on our actions. A former child soldier who has become a productive member of society and is surrounded by loving, accepting individuals in his of her community will be less prone to reengaging in armed conflict than one merely released back into the same situation as he was in before.
- And, of course, supervision is essential. I hesitate to use the word, “surveillance,” but these individuals should be watched closely to make certain they have not “fallen off the wagon.”
Instead of the time-frame the Saudis use, I would support a more performance-based system that allows for flexibility according to the individual. Once certain criteria is met and hurdles overcome, the individual may move on to the next phase of the regimen. And again, while I consider Saudi Arabia’s system to be a significant and appreciable first step, I believe we can all do better.
The United States needs to take an approach that is more sympathetic to the child. Each situation is unique and must be determined on a case-by-case basis. When adjudicating an asylee’s claim, the best interest of the child should be taken into consideration. And, of course, I believe that the inherent hypocrisy, for lack of a better word, in dealing with children in a criminal setting and an immigration setting should be addressed. If a child is able to use a duress claim in a criminal courtroom, there is no rational reason that he should not be able to use it in an immigration hearing.
[1] 24 (Fox Network, 2001-2010).
[2] Blood Diamond (Warner Bros. Pictures, 2006.
[3] Coalition to Stop the Use of Child Soldiers.
[4] Jennifer C. Everett, The Battle Continues: Fighting for a More Child-Sensitive Approach to Asylum for Child Soldiers, 21 Fla. J. Int’l L. 285 (2009).
[5] Id. at 291.
[6] Id. at 292.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Matthew Happold, Excluding Children from Refugee Status: Child Soldiers and Article 1F of the Refugee Convention, 17 Am. U. Int’l L. Rev. 1131 (2002).
[13] Mary-Hunter Morris, Babies and Bathwater: Seeking an Appropriate Standard of Review for the Asylum Applications of Former Child Soldiers, 21 Harv. Hum. Rts. J. 281 (2008).
[14] Emma Lazarus, The New Colossus, lines 9-14 (1883).
[15] See supra note 13 at 281.
[16] See supra note 13, at 292.
[17] David A. Martin, Forced Migration: Law and Policy (Thompson/West, 2007).
[18] Id.
[19] Id.
[20] 1951 Convention Relating to the Status of Refugees. 189 U.N.T.S. 137.
[21] Id.
[22] Article 1F of 1951 Convention Relating to the Status of Refugees. 189 U.N.T.S. 137.
[23] Id.
[24] See supra note 17 at 39.
[25] Id.
[26] Id. at 40.
[27] Id.
[28] “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
[29] See supra note 17 at 38.
[30] Id at 70.
[31]1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267.
[32] Id.
[33] See supra note 17 at 41.
[34] See supra note 17 at 41.
[35] Id. at 45.
[36] The Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1468 U.N.T.S. 85.
[37] See supra note 17 at 45.
[38] Kathryn White, A Chance for Redemption: Revising the “Persecution Bar” and Material Support Bar” in the Case of Child Soldiers, 43 Vand. J. Transnat’l L. 191 (2010).
[39] Id. at 197.
[40] Id. at 199.
[41] Id. at 200.
[42] Id. at 202.
[43] Georgetown University Law Center, Human Rights Institute, May 2006 Refugee Fact-Finding Investigation, Unintended Consequences: Refugee Victims of the War on Terror, 37 Geo. J. Int’l L. 759, 801 (2006).
[44] See supra at 206.
[45] Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003)
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Center for Emerging Threats and Opportunities, Marine Corps Warfighting Laboratory, Child Soldiers: Implications for U.S. Forces, (2002).
[53] Id at 20.
[54] Jenny Kuper, Military Training and Children in Armed Conflicts: Law, Policy, and Practice (Martinus Nijhoff, 2005).
[55] Id. at 51.
[56] Id.
[57] Walter Pincus, U.S. Has Detained 2,500 Juveniles as Enemy Combatants. Available at: https://www.washingtonpost.com/wp-dyn/content/story/2008/05/14/ST2008051404032.html.
[58] Id.
[59] Id.
[60] Id.
[61] Human Rights First, The Case of Omar Ahmed Khadr, Canada. Available at: https://www.humanrightsfirst.org/us_law/detainees/cases/khadr.aspx
[62] Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
[63] See supra note 61.
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Son of Al Qaeda, PBS, 2004.
[69] See supra note 61.
[70] Id.
[71] Id.
[72] Michael McKinley, Is Omar Khadr a War Criminal– Or Just a Headache the U.S. Wants to Give to Canada? Available at: https://www.politicsdaily.com/2010/11/14/is-omar-khadr-a-war-criminal-or-just-a-headache-the-u-s-want/
[73] See supra note 61.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Id.
[81] Repatriation of Omar Khadr to be Tried Under Canadian Law: An Overview of the Case and the Prospect of Canadian Jurisdiction. Available at: https://aix1.uottawa.ca/~cforcese/other/khadrrepatriation.pdf
[82] Id.
[83] Id.
[84] Id.
[85] Id.
[86] Id.
[87] Daniel Schwartz, Omar Khadr’s Return to Canada. Available at: https://www.cbc.ca/canada/story/2010/11/10/f-omar-khadr-returns-faq.html
[88] Id.
[89] See supra note 61.
[90] Elise Cooper, Too Much Leniency for Terrorists. Available at: https://www.americanthinker.com/2010/11/too_much_leniency_for_terroris.html
[91] Id.
[92] See supra note 72.
[93] Id.
[94] Id.
[95] Id.
[96] See supra note 61.
[97] Id.
[98] See supra note 87.
[99] Id.
[100] See supra note 38 at 215.
[101] Id.
[102] Id. at 215.
[103] Id.
[104] Id. at 216.
[105] Id.
[106] Id.
[107] Benjamin Ruesch, Open the Golden Door: Practical Solutions for Child-Soldiers Seeking Asylum in the United States, 29 U. La Verne L. Rev. 184 (2008).
[108] See supra note 12 at 1155.
[109] Id.
[110] Id.
[111] Id. at 1156.
[112] Id.
[113] Carol Rosenberg, About 1 in 4 Released Guantanamo Detainees Confirmed or Suspected of Terrorism or Insurgency. Available at: https://www.montrealgazette.com/news/About+released+Guantanamo+detainees+confirmed+suspected+terrorism/3948522/story.html
[114] Id.
[115] Id.
[116] Global Jihad, Operation Absolute Justice. Available at: https://www.globaljihad.net/view_page.asp?id=180
[117] Id. Abdullah Al-Ajmi was put on trial for belonging to a terror group but was acquitted, eventually, due to the judicial definition of the Taliban and that the allegations by the United States against him were not violations of Kuwaiti law.
[118] See supra note 113.
[119] See supra note 4 at 293.
[120] Beth Verhey, Child Soldiers: Preventing, Demobilizing, and Reintegrating. Available at: https://www.worldbank.org/afr/wps/wp23.pdf.
[121] Id. at 18.
[122] Guantanamo Bay Detention Facility.
[123] James Clapper, Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba. Available at: https://www.odni.gov/electronic_reading_room/120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf
[124] See supra note 102.
[125] Id. at 19.
[126] Id.
[127] Christopher Beem, Jihadis Anonymous: What Happens in Terrorist Rehab? Available at: https://www.slate.com/id/2209616.
[128] Id.
[129] Id.
[130] Id.
