CIAO DATE: 08/04

U.S. Senate Ratifies Child Soldiers Treaty

Rachel Stohl

Center for Defense Information

July 2002

On Tuesday June 19, the U.S. Senate ratified by voice vote the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, as well as the companion protocol on the sale of children.

The Optional Protocol was adopted by the UN General Assembly in May 2000. Based on a provision in the Protocol, insisted upon by the United States, the United States does not have to ratify the parent treaty, the Convention on the Rights on the Child. The Protocol specifically:

• Requires states parties to “take all feasible measures” to ensure that members of their armed forces under the age of 18 years do not participate in hostilities;
• Prohibits the conscription of anyone under the age of 18 into the armed forces;
• Requires states to raise the age of voluntary recruitment from 15 and to deposit a binding declaration of the minimum age for recruitment into its armed forces; and
• Prohibits the recruitment or use in hostilities of children under the age of 18 by rebel or other non–governmental armed groups, and requires states to criminalize such practices.

President Clinton signed both protocols on July 5, 2000 and hearings were held by the Senate Foreign Relations Committee on March 7, 2002. Once the Senate formally grants “advice and consent,” the last step in a treaty ratification process is for the administration to deposit the instrument of ratification with the United Nations. According to Jo Becker, Advocacy Director of the Children’s Rights Divisions at Human Rights Watch, since the Bush administration is already on record in support of the two protocols, the formal accession to the protocols should happen shortly. The United States will then join the other 33 countries that have ratified the Child Soldiers Protocol (to date, 109 governments have signed the Protocol). The Protocol entered into force on February 12, after ten ratifications.

Senate Foreign Relations Chairman Joe Biden (D–DE) had spoken in favor of the Protocol and is reported by the CQ Daily Monitor as having said that “signing the protocol will express U.S. support and moral authority on the issue, as well as help protect American children abroad.” Further, Biden stated, “These two treaties on their own will not end those awful practices, but they will establish new international standards, that, over the long run, will provide greater protection for children around the world.”

In ratifying the Protocol, the Senate Foreign Relations Committee recommended specific understandings and conditions that were published in the Congressional Record on June 12. These understandings and conditions represent the U.S. interpretation of the Protocol and its adherence to the Protocol’s provisions and are listed below:

The Senate advises and consents to the ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children In Armed Conflict, opened for signature at New York on May 25, 2000 (Treaty Doc. 106–37; in this resolution referred to as the “Protocol”), subject to the understandings in section 2 and the conditions in section 3.

The advice and consent of the Senate under section 1 is subject to the following understandings, which shall be included in the United States instrument of ratification of the Protocol:

(1) No Assumption of Obligations under the Convention on the Rights of the Child — The United States understands that the United States assumes no obligations under the Convention on the Rights of the Child by becoming a party to the Protocol.

(2) Implementation of Obligation Not to Permit Children to Take Direct Part in Hostilities — The United States understands that, with respect to Article 1 of the Protocol—

(A) the term “feasible measures” means those measures that are practical or practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations;

(B) the phrase “direct part in hostilities”—

(i) means immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy and

(ii) does not mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions, or other supplies, or forward deployment; and

(C) any decision by any military commander, military personnel, or other person responsible for planning, authorizing, or executing military action, including the assignment of military personnel, shall only be judged on the basis of all the relevant circumstances and on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.

(3) Minimum Age for Voluntary Recruitment — The United States understands that Article 3 of the Protocol obligates States Parties to the Protocol to raise the minimum age for voluntary recruitment into their national armed forces from the current international standard of 15 years of age.

(4) Armed Groups — The United States understands that the term “armed groups” in Article 4 of the Protocol means non–governmental armed groups such as rebel groups, dissident armed forces, and other insurgent groups.

(5) No Basis for Jurisdiction by Any International Tribunal — The United States understands that nothing in the Protocol establishes a basis for jurisdiction by any international tribunal, including the International Criminal Court.

The advice and consent of the Senate under section 1 is subject to the following conditions:

(1) Requirement to Deposit Declaration — The President shall, upon ratification of the Protocol, deposit a binding declaration under Article 3(2) of the Protocol that states in substance that—

(A) the minimum age at which the United States permits voluntary recruitment into the Armed Forces of the United States is 17 years of age;

(B) the United States has established safeguards to ensure that such recruitment is not forced or coerced, including a requirement in section 505(a) of title 10, United States Code, that no person under 18 years of age may be originally enlisted in the Armed Forces of the United States without the written consent of the person’s parent or guardian, if the parent or guardian is entitled to the person’s custody and control;

(C) each person recruited into the Armed Forces of the United States receives a comprehensive briefing and must sign an enlistment contract that, taken together, specify the duties involved in military service; and

(D) all persons recruited into the Armed Forces of the United States must provide reliable proof of age before their entry into military service.

(2) Interpretation of the Protocol — The Senate reaffirms condition (8) of the resolution of ratification of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe (CFE) of November 19, 1990 (adopted at Vienna on May 31, 1996), approved by the Senate on May 14, 1997 (relating to condition (1) of the resolution of ratification of the INF Treaty, approved by the Senate on May 27, 1988).

(3) Reports—

(A) Initial Report — Not later than 90 days after the deposit of the United States instrument of ratification, the Secretary of Defense shall submit to the Committee on Foreign Relations and the Committee on Armed Services of the Senate a report describing the measures taken by the military departments to comply with the obligation set forth in Article 1 of the Protocol. The report shall include the text of any applicable regulations, directives, or memoranda governing the policies of the departments in implementing that obligation.

(B) Subsequent Reports—

(i) Report by the Secretary of State — The Secretary of State shall submit to the Committee on Foreign Relations and the Committee on Armed Services of the Senate a copy of any report submitted to the Committee on the Rights of the Child pursuant to Article 8 of the Protocol.

(ii) Report by the Secretary of Defense — Not later than 30 days after any significant change in the policies of the military departments in implementing the obligation set forth in Article 1 of the Protocol, the Secretary of Defense shall submit a report to the Committee on Foreign Relations and the Committee on Armed Services of the Senate describing the change and the rationale therefore.