Ambassador David Scheffer recently highlighted a renewed impetus for U.S. legislation on crimes against humanity. He explained that Americans should not accept impunity for crimes against humanity when they have not done so for other egregious crimes such as war crimes, “including recruiting, enlisting, or conscripting children in an armed force or group or using children to participate actively in hostilities.” Indeed, U.S. efforts to combat the use of children in armed conflict recently aided the prosecution of war criminal Dominic Ongwen. A former child soldier himself, Ongwen received a 25-year sentence earlier this year from the International Criminal Court (ICC) for committing war crimes and crimes against humanity, including the brutal conscription of children into the Lord’s Resistance Army.

Ongwen’s prosecution and sentence resulted in part from U.S. actions to dismantle child soldier networks. In 2013, the State Department offered $5 million for assistance in capturing Ongwen, and, two years later, the U.S. military facilitated the surrender and transfer of Ongwen into ICC custody. This foreign policy approach coheres with U.S. domestic policy, as Congress has criminalized the conscription of child soldiers and enacted prohibitions against the provision of aid to countries that use them.

But it was not long ago that the United States was reluctant to support the development of a norm against the use of child soldiers, and its current approach leaves plenty to be desired. On Oct. 8, the Biden administration, following in the footsteps of prior administrations, waived restrictions on the provision of security assistance to the majority of the countries identified by the State Department as using child soldiers. As Congress undertakes the important task of filling in the gap in federal criminal law with respect to crimes against humanity, it is useful to reflect on the United States’ path to criminalizing the use of children in armed conflict and the limits of its existing framework.

Negotiations of the Optional Protocol on the Involvement of Children in Armed Conflict

Interest in a treaty prohibiting the use of child soldiers cropped up in the 1990s after the 1989 Convention on the Rights of the Child (CRC) left the issue unaddressed. The movement gained strength following Graça Machel’s 1996 U.N. Study on the Impact of Armed Conflict on Children detailed the use of tens of thousands of child soldiers in armed conflicts worldwide. In response, the U.N. General Assembly established a mandate focusing on children in armed conflict, while a U.N. working group set out to produce what would eventually become the Optional Protocol on the Involvement of Children in Armed Conflict (OPAC). Helping propel this movement was a group of NGOs who formed the Coalition to Stop the Use of Child Soldiers (for a detailed look into this campaign, see Jo Becker’s fascinating book).

At the start of negotiations, the United States opposed setting 18 as a minimum age for either military recruitment or participation in combat. Since 1917, U.S. laws allowed 17-year-olds to volunteer to join the military with parental permission, and minors continued to be deployed in combat operations into the 1990s, including in conflicts in Bosnia, Somalia, and the 1991 Gulf War. An advocacy movement in the United States, supported by a number of former Department of Defense (DoD) officials, sought to chip away at this entrenched position. Recognizing that the United States had become an outlier on the issue, then-Secretary of State Madeleine Albright urged the joint chiefs of staff to review the feasibility of potentially limiting combat to those aged 18 and over.

By January 2000, President Bill Clinton had assented to 18 as a minimum age for direct participation in hostilities. In a statement following the adoption of OPAC by the U.N. working group, he touted it as a “historic achievement to protect the world’s children.” The treaty included provisions obligating states to take measures to ensure that children below age 18 do not participate in hostilities, preventing the recruitment of minors for military purposes by non-state actors, and committing states to cooperate in efforts aimed at rehabilitating and reintegrating child soldiers. The United States ratified OPAC with a declaration (as required under Art. 3(2) of the treaty) stating its minimum age for voluntary recruitment would remain at 17. To meet its obligations, each branch of the armed services implemented new orders excluding 17-year-olds from combat, a move considered by some to be the first instance of the United States materially altering military practices to support new international human rights obligations.

Momentum Builds for a Legislative Framework To Address the Use of Child Soldiers

With its weight behind OPAC and its policies in alignment, the United States pivoted rather quickly from reluctance to leadership in the movement to end the use of child soldiers. This role was complicated by the fact that the United States suddenly faced children on the battlefield in the wake of the attacks of Sept. 11, 2001. It is believed that a minor killed the first U.S. servicemember to die by hostile fire in the war in Afghanistan, and the government soon after began to capture minors fighting in Afghanistan and Iraq. Congress in 2002 required the State Department to include information on the conscription of child soldiers in its annual human rights reports, and in 2003 the United States donated $4.5 million to a UNICEF initiative aimed at rehabilitating former Afghan child soldiers. However, in spite of its nominal support for a rehabilitative approach, the United States was less willing to comply with international standards in its treatment of teenagers like Omar Khadr detained at Guantanamo.

Meanwhile, NGOs in the 2000s began lobbying members of Congress for legislation addressing the problem of using children in armed conflict. This advocacy was bolstered by research such as a 2007 Center for Defense Information report finding that eight governments receiving U.S. military funding used child soldiers. Senators Dick Durbin and Sam Brownback took up the mantle, formulating initial drafts of the Child Soldiers Prevention Act (CSPA), which prevented certain foreign assistance from going to countries that recruit or use child soldiers, and the Child Soldiers Accountability Act (CSAA), which criminalized the recruitment or conscription of children below the age of 15 and deemed inadmissible or deportable those who committed such acts. In April 2007, the Senate Judiciary Subcommittee on Human Rights and the Law held what was described as the “first ever congressional hearing on the urgent human rights crisis of child soldiers.”

Abroad, 58 governments met and drafted the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups (“Paris Principles”) in 2007. They sought to accord special protections to child soldiers as victims, rather than perpetrators. The United States (famously a holdout from the Convention on the Rights of the Child) did not join in this child rights-based approach, which conflicted with its detention of Khadr and others.

In spring 2008, the U.N. Committee on the Rights of the Child, responsible for reviewing states parties’ implementation of OPAC, issued a “strongly worded critique” of the United States’ detention and treatment child soldiers abroad. The Committee also criticized the U.S. military’s recruitment practices aimed at minors, the lack of specific legislation criminalizing the violations of OPAC and granting extraterritorial jurisdiction over such crimes, and the inadequate asylum process for former child soldiers. Though the United States already conferred extraterritorial jurisdiction over certain war crimes in 18 U.S.C. 2441, the Committee recommended that “the recruitment and involvement of children in hostilities be explicitly criminalised” by expediting enactment of the CSAA.

Adoption of the Current Framework Led to Mixed Results

In October 2008, the United States addressed one of the keys concerns of the U.N. Committee on the Rights of the Child by enacting the CSAA. Two months later, Congress passed the CSPA as part of the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA). The CSPA requires the State Department to annually report which countries used child soldiers and bans the provision of certain military aid to those countries, though this ban can be waived if the president determines it is in the national interest to do so. At the time of its passage, only Belgium had enacted a provision similar to the CSPA.

The CSAA passed unanimously in the Senate and the House. The statute was first used in 2012 to deport George Boley, a Liberian politician who had commanded child soldiers in the country’s civil war. However, like its sibling Chapter 118 war crimes statute, the CSAA has not been impactful in practice: a search through Bloomberg Law’s federal court records did not yield a single case showing prosecutions brought under the statute.

The CSPA, meanwhile, has generated substantial controversy. Throughout the 2010s, the State Department identified increasing numbers of countries that used child soldiers, and both President Barack Obama and President Donald Trump annually invoked national security waivers for the majority of them. Congress amended the law in 2019 to place greater reporting obligations on the executive branch when issuing waivers. Still, when the list of countries reached a new high of fifteen in June 2021, including first appearances by two notable U.S. military partners, Pakistan and Turkey, the Biden administration announced full or partial waivers for nine of them.

Tools To Confront the Issue More Effectively Moving Forward

The prohibition on the use of child soldiers is a relatively new norm addressing a practice deeply entrenched in human history (indeed, even the word “infantry” is derived from a Renaissance-era term for youth serving as foot soldiers). Efforts by the executive branch to help bring people like Ongwen to justice represent one important path to combating these heinous practices, but the existing approach should be bolstered across multiple dimensions.

First, the Biden administration could more aggressively implement the CSPA by declining to extend waivers so generously, particularly to longtime offenders like South Sudan. The executive branch often issues partial waivers and has at times conditioned aid until countries take certain steps to move away from the use of child soldiers, but 97% of the assistance restricted by the CSPA has been allowed by waiver. Such an approach hardly signals to aid recipients that the government considers this a priority issue. Even if countervailing national interests require waiver in certain cases, stricter conditioning of aid after restrictions are waived can provide flexibility to ratchet up pressure on noncompliant states.

Second, because the use of child soldiers often implicates a broader set of crimes under international law, as in Ongwen’s case, Congress should adopt legislation which closes the gaps between U.S. and international criminal law. This includes enacting a crimes against humanity statute as detailed by Ambassador Scheffer, as well as much-needed reform to the War Crimes Act. To do so would allow the United States to hold perpetrators of the use of child soldiers accountable for the full scope of their transgressions.

Lastly, the United States should take a leading role in providing financial and logistical support to initiatives by UNICEF and others in the international community that focus on rehabilitation and reintegration of former child soldiers. While the United States’ opposition to a child rights-based approach has at times tempered its support for reintegration-focused initiatives like the Paris Principles, rehabilitation and reintegration efforts are essential for reducing the harm to impacted children. To be sure, the widespread use of child soldiers is a monumental challenge with no simple fix. To play a meaningful part in eradicating this practice, the United States must more urgently prioritize the issue across a range of domestic and foreign policies.

Image: Residents of Lukodi village, where dozens were killed in 2004 by the Lord’s Resistance Army, react as they listen to the International Criminal Court’s (ICC’s) sentence of Dominic Ongwen, a Ugandan child soldier-turned-Lord’s Resistance Army commander, on radio in Lukodi, Uganda, on May 6, 2021. (Photo by BADRU KATUMBA/AFP via Getty Images)