UN Committee Criticizes Obama Administration’s Use of Child Soldiers’ Waivers
February 14, 2013
As the conflict in Mali wages on, reports from the frontlines reveal that the al-Qaeda linked Northern Mali rebels have conscripted child soldiers into their ranks. These reports reflect the persistence of a gross human rights violation in military conflict.
And Mali is not alone. Child soldiers are used by non-state groups and government forces alike. American soldiers around the world have come under attack from forces using child soldiers, a complex challenge for the U.S. military. However, the United States has also provided military assistance to governments using child soldiers within their ranks or within government-supported armed groups. Child Soldiers International (CSI), an international NGO committed to preventing the recruitment and use of child soldiers, has found evidence of child soldiers in government militaries and government supported armed groups with which the US military maintains key military-aid relationships, such as Afghanistan Chad, Côte d'Ivoire, the Democratic Republic of the Congo, Iraq, Libya, the Philippines, South Sudan, Sudan, Thailand and Yemen.
Prohibitions against the use of child soldiers are codified in the Optional Protocol on the Involvement of Children in Armed Conflict, which has been ratified by the United States. In 2008, the US Congress passed the Child Soldiers Protection Act (CSPA). The bill aimed to prevent US arms transfers and training to governments that use child soldiers in their national militaries or in government supported armed groups. The law only applies to specific categories of military assistance under both the State and Defense Department accounts, and allows for the President to waive the prohibitions and permit military assistance to flow to the countries without delays.
When the law first took effect in 2010, the Obama Administration used blanket waivers for the offenders named in the State Department's annual Trafficking in Persons (TIP) report, including Chad, the Democratic Republic of Congo (DRC), Sudan, and Yemen. The Administration noted that countries had been formally put on notice, and that continued assistance was contingent upon changed behavior. Nonetheless, it also pointed to overriding national security concerns, in particular counter-terrorism, as an additional rationale for the waiver.
In 2011, the same countries were again named in the TIP report, but President Obama once again waived Yemen and Chad. The Administration granted only a partial waiver to the DRC, allowing it to only receive funding for military exchanges, non-lethal excess defense articles, and licenses for direct commercial sales military equipment. And since it became an independent country twelve days after the TIP report was released, South Sudan was freed from restrictions on the basis of a technicality. Once again, the administration offered a national security rationale for the waiver.
Last year, the Obama Administration again waived the law for Libya, South Sudan, and Yemen, and a partial waiver to allow the DRC to receive IMET, non-lethal excess defense articles and direct commercial sales. However, the Administration did release a policy statement that prevents the United States from training a second light infantry battalion until the government of the DRC signs a UN action plan to prevent the use and recruitment of child soldiers (which was subsequently signed on October 4).
In response to the continued use of waivers, the UN Committee on the Rights of Children released a report this month encouraging the Obama Administration to stop its practice of enacting waivers and amend US law to eliminate the waivers in the face of this enduring practice of using child soldiers.
While arms transfer decisions are made against the backdrop of political, economic, and diplomatic circumstances, in some cases, transfer decisions may be ill-advised even when they are perfectly legal. This is the very essence of the Child Soldiers Protection Act.
The United States can influence the behavior of States through the provision of military assistance. Countries, particularly those developing military relationships with the United States, are eager to receive US weapons and training. The United States can and should leverage this desire for US assistance to encourage violating countries to change their behavior and stop using child soldiers.
The full breadth of the military assistance provided under the President's waiver will be seen when the President's budget and related documents are released later this month. We have the opportunity now to consider the provision of our assistance in current conflicts and in potential future interventions. The Obama administration must consider the implications of using the waiver for both our short term national security, and our long term human rights goals.
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