By Susan C. Mapp
On December 23, 2002, the United States ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This document defines a “child soldier” as a person under the age of 18 involved in hostilities. This raises the minimum age from the age of 15 set in the Convention on the Rights of the Child. Neuroscience is now providing us with the tools to see what many have long suspected: the adolescent brain has not yet fully developed. In particular, the prefrontal cortex, which regulates complicated decision-making and calculation of risks and rewards is not yet fully developed. The American Bar Association used this knowledge in its support of the ban on the death penalty for minors.
Article 7 of this document states that nations who are parties to it will cooperate in the, “rehabilitation and social reintegration of persons who are victims.” The Declarations and Reservations made by US related primarily its recruitment of 17-year-olds and noting that the ratification did not mean any acceptance of the Convention on the Rights of the Child itself, nor the International Criminal Court, thus indicating its acceptance of Article 7.
However, the United States frequently detains and incarcerates child soldiers. The United Nations has noted the “presence of considerable numbers of children in United States-administered detention facilities in Iraq and Afghanistan” (p.6). The New York Times states the U.S. report to the UN regarding its compliance with the Optional Protocol states that it has held thousands of children in Iraq and Afghanistan since 2002. The same report also states that a total of eight children have been held at Guantanamo Bay.
The United States is currently in the process of trying a child soldier who has been held at Guantanamo Bay for the past 8 years. Omar Khadr, a Canadian citizen, is accused of throwing a grenade that killed an American soldier, Sgt. Christopher Speer. Omar was 15 years old at the time, well below the minimum age for child soldiers. The head of UNICEF, a former U.S. national security advisor, has stated his opposition to the trial:
The recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted. The children involved are victims, acting under coercion. As UNICEF has stated in previous statements on this issue, former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.
The Paris Principles, principles and guidelines on children associated with armed groups, was developed in 2007 to provide guidance on these issues. Developed by the United Nations, it has been endorsed by 84 nations as of 2009, not including the United States. It states that “Children … accused of crimes… are entitled to be treated in accordance with international standards for juvenile justice.” These standards include “decisions without delay,” access to their parents, incarceration for the shortest amount of time possible and not being incarcerated with adults. These standards have all been violated in Omar’s case.
In addition to the fact that he was a child at the times, there have also been allegations of abuse and evidence tainting, which violate the Universal Declaration of Human Rights, ratified by the United States. The New York Times has reported allegations, based on a government report completed in 2004, that Omar was abused during interrogations. The Supreme Court of Canada has ruled that Canadian agents also violated his rights during their interrogation of him. Khadr’s lawyer has alleged the U.S. government had manufactured evidence as the report of the combat in which the death occurred was altered. It had originally noted that the person who threw the grenade which killed Sgt. Christopher Speer had died. However, two months later that line was altered to read that the grenade-thrower did not die.
However, even if the evidence were airtight, the fact remains that Omar was a child at the time. Our juvenile courts, established in part by Jane Addams, are based on the notion that children should not be held to the same levels of responsibility as adults. As noted above, this belief is now supported by neuroscience and our growing understanding of brain development. The United States should repatriate Omar to Canada and allow Canada, who has endorsed the Paris Principles, to attempt to rehabilitate him.