Waiving Away the Problem
How US Presidents Have Let Countries Complicit in Child Soldiering Off the Hook
Leveraging new data to examine the nexus between U.S. arms sales, military assistance, and child soldiers
In more than a dozen different countries, children are recruited — often through force — and used as soldiers. Many of these countries receive weapons and military assistance from the United States.
in taxpayer funded arms sales and military assistance has been provided to countries the United States has specifically said are complicit in the recruitment or use of child soldiers.
Around the globe, one in six children – approximately 449 million in total – lived in a conflict zone in 2021, and a staggering 1.6 billion children lived in countries affected by conflict. These children are some of the most vulnerable people in the world, facing regular risk to their lives and grave violations of their human rights. In many places, government forces or militant groups target these children to become soldiers, recruiting or forcing them into combat or support roles. Hundreds of thousands of children have faced this terrible reality. In 2022 alone, the United Nations verified the recruitment and use of 7,622 child soldiers in more than 20 countries around the world – a 21 percent increase compared to 2021.
The global arms trade enables the exploitation of children in armed conflicts, affording governments and groups that recruit or use child soldiers easy access to weapons of war. The United States is the largest arms exporter in the world, and many countries – including those that use child soldiers – rely on U.S. weapons and military assistance to sustain their national security forces and support non-state armed groups.
In 2008, Congress passed the Child Soldiers Prevention Act. The law uses U.S. arms sales and military assistance as leverage: Countries complicit in the recruitment or use of child soldiers are prohibited from receiving valuable funding, training, and weapons.
To address the continuing and pressing problem of child soldiers, Congress passed the Child Soldiers Prevention Act (CSPA) in 2008. It adopted a novel approach: Give countries an incentive to stop using child soldiers. Originally sponsored by Senator Richard Durbin, the law aims to use the arms sales and military assistance as leverage, encouraging them to end the recruitment and use of child soldiers by their security forces and government-supported armed groups.
More than a decade after its passage, the CSPA remains one of the few laws to take a prevention-based approach to stopping the use of child soldiers. In fact, the United States is one of only three countries in the world (the others being Belgium and Switzerland) to condition elements of their arms trade to the non-use of child soldiers.
The premise is simple: Every year, as part of its annual Trafficking in Persons Report, the Department of State publishes a list of countries that use or recruit child soldiers or support armed groups that do. Countries on the list are prohibited from receiving certain types of U.S. arms sales and military assistance the next fiscal year.
The State Department’s annual list, known as the ‘CSPA list’, includes countries whose security forces or government-supported armed groups recruited or used child soldiers the previous year.
“the authorities […] may not be used to provide assistance to, and no licenses for direct commercial sales of military equipment may be issued to, the government of a country that is clearly identified […] as having governmental armed forces, police, or other security forces, or government-supported armed groups, including paramilitaries, militias, or civil defense forces, that recruit or use child soldiers.”
Prohibited arms and assistance can be reinstated if the president certifies that the violating country has taken certain steps to prevent the recruitment and use of child soldiers.
“The President may provide to a country assistance otherwise prohibited […] upon certifying to the appropriate congressional committees that the government of such country —
If a country begins the process of demobilizing, rehabilitating, and reintegrating child soldiers, the president can also reinstate assistance aimed at increasing the professionalization of the military such as military education programs in the country and related nonlethal aid.
“The President may provide assistance under section 2347 of this titlethrough the Defense Institute for International Legal Studies or the Center for Civil-Military Relations at the Naval Post-Graduate School, and may provide nonlethal supplies […] upon certifying to the appropriate congressional committees that—
The arms transfer and weapons and military assistance programs affected by the CSPA are some of the largest and most sought-after security cooperation programs offered by the United States. As a result, a credible threat by U.S. leaders to cut assistance to a country implicated in child soldier recruitment or use can leverage a change in government behavior.
In 2012, the Obama administration announced it was partially withholding military assistance to the Democratic Republic of the Congo (DRC) due to the country’s use of child soldiers. Within five days of the announcement, the DRC signed a United Nations action plan to end its recruitment and use of child soldiers, and there has since been a significant reduction in child soldier recruitment in the country.
Similarly, one year after its appearance on the 2010 CSPA list, Chad signed a UN action plan to end the recruitment and use of child soldiers by the Chadian National Army.
In another example, the Obama administration’s 2013 decision to withhold all CSPA-relevant arms sales and military assistance to Rwanda due to its support for the M23 – an armed group that forcibly recruited large numbers of child soldiers – contributed to mounting international pressure on Rwanda to end its support for the group. Within weeks of the U.S. announcement, the M23 surrendered after a crushing UN-backed Congolese military offensive.
In short, the CSPA can work when diplomatic pressure at the highest levels makes it clear that the United States is willing to enforce the law if the offending country doesn’t take action to stop using child soldiers. The lesson is that robust implementation of the CSPA could provide a powerful incentive for countries to end the recruitment and use of child soldiers by national security forces and by armed groups they support.
Although the CSPA can be a powerful and effective tool to change government behavior, the law has not lived up to its promise.
Since the first year of CSPA implementation, presidents have regularly waived the law’s provisions to allow countries complicit in child soldier recruitment or use to receive otherwise prohibited arms sales and military assistance.
Presidents have frequently used “national interest” waivers – 160 times, in fact – to send U.S. weapons and military assistance to governments that recruit or use child soldiers or support armed groups that do. As a result, roughly 97% of the arms sales and military assistance that the CSPA could have prohibited since 2010 has instead been allowed to flow to CSPA-listed countries, severely undercutting the law’s potential and demonstrating a missed opportunity for how the law could and should work.
Congress included a “national interest” waiver authority in the CSPA as a way of safeguarding U.S. national security. This is a fairly common practice in laws related to foreign affairs, but waivers are intended to be used judiciously in response to legitimate national security needs – not as a matter of course.
In addition, Presidents Obama, Trump, and Biden have signed “partial” waivers, a sort of middle ground, allowing some types of assistance while preventing others. While partial waivers may give presidents more options, they also create an environment of impunity. Violating countries may see losing some U.S. arms sales or military assistance as an acceptable cost if it means they can continue to exploit children in war. In other cases, partial waivers have shown the United States is serious about getting governments to stop their abusive practice and withholding even some aid has made a difference in changing government behavior.
The composition of the CSPA list has itself been politicized: Countries long known to use child soldiers have been omitted from the list for years, while others have been left off entirely.
For the first nine years that the State Department reported on governments complicit in the recruitment or use of child soldiers, some countries with government forces and/or government-supported armed groups known to rely on child soldiers were absent from the CSPA list.
These omissions were driven by politics. For example, Afghanistan was left off the list until 2019 despite decades of child soldier recruitment and use in the country. The State Department used a novel legal argument to claim that those responsible fell outside the scope of the CSPA, despite many being under the Afghan government’s purview. The U.S. government was reluctant to name Afghanistan as a violator, which would open them up to CSPA sanctions in the middle of an active conflict, where Afghan government cooperation was crucial. Iraq and Myanmar were beneficiaries of similar political decisions.
Meanwhile, other known violators have been left off the CSPA list entirely. Saudi Arabia, for instance, was widely reported to have used children as young as 14 to fight its war in Yemen. However, the country – seen by many in Washington as a key strategic partner – has yet to appear on a CSPA list. State Department officials pushed for the Kingdom’s inclusion in the 2019 list but were overruled by then-Secretary of State Pompeo.
While Afghan government forces have long been known to recruit and use child soldiers, Afghanistan was initially excluded from the CSPA list after the State Department used a creative legal interpretation to determine that the perpetrators fell outside the scope of the CSPA. However, at the urging of civil society, Congress changed the description of the groups covered by the law to ensure that Afghanistan could no longer avoid accountability, and the country finally appeared on the CSPA list in 2019.
After omitting Iraq from the CSPA list for years – despite verified evidence of the Iraqi government’s use of child soldiers – the State Department finally included Iraq on the list in 2016. However, the Obama administration waived the CSPA prohibitions because the administration did not want to undermine political relationships and U.S. counterterrorism operations in Iraq and the region.
Though the U.S. government never planned to provide Burma with U.S. military assistance or arms sales covered by the CSPA, President Obama granted the country a full waiver in 2016 due to the Obama administration’s interest in working with the Naypyidaw government to embrace democracy. The following year, in 2017, Burma disappeared from the CSPA list, only to return the next year, in 2018, and every subsequent year when no changes were identified.
The outcome is clear: The vast majority of arms sales and military assistance subject to the law’s restrictions have been provided to countries identified by the U.S. as complicit in the recruitment or use of child soldiers.
Since the law took effect, U.S. presidents have used waivers to provide more than $6 billion in U.S. arms sales and military assistance to countries complicit in the recruitment or use of child soldiers. Approximately 97% of the arms and assistance that could have been withheld under the law has been provided as a result of presidential waivers.
The extensive use of national interest waivers is not unique to any one administration. In fact, every president since 2009 has waived the vast majority of the CSPA’s prohibitions. Presidents Obama and Trump issued waivers for approximately 94% and 97%, respectively, of the arms sales and military assistance that came within the scope of the CSPA during their terms, with each allowing for the provision of over $2 billion of otherwise prohibited arms and assistance. Based on currently available data, President Biden has so far waived roughly 99%, amounting to an additional $2 billion in arms and assistance.
In 2008, the United States took a stand against one of the most horrific abuses of children with the passage of the CSPA. But poor enforcement has undermined the law and allowed billions of dollars in U.S. military assistance and arms to flow into countries where children are recruited and used by government forces and armed groups.
If the U.S. government is serious about preventing children from being used as tools of war, it can and should make better use of the CSPA to encourage governments to put an end to these horrific practices.
Three steps presidential administrations can take to strengthen CSPA implementation:
No more legal loopholes. Administrations should use the law as it was intended and list countries when their governments or government-supported armed groups recruit or use child soldiers. There should be no exceptions or political favors; the U.S. should take its leadership role seriously.
Waivers should be used much more judiciously. Waivers should only be used in cases where exceptions must be made to protect a clearly identified and compelling U.S. national security interest and where there is evidence of good faith efforts to change behavior and demobilize child soldiers.
Use the CSPA as one tool in the toolbox. The law should be used alongside other policies and practices as part of a coordinated effort to support institutions and security apparatuses in emerging democracies and to create incentives for change. The CSPA is an incentive to support security sector reform and the signing and implementation of national action plans. Implementation of the CSPA must accompany diplomatic efforts, work in partnership with UN action plans, and be a priority in interactions in bilateral relationships.
Copyright The Henry L. Stimson Center
Licenses for Direct Commercial Sales (DCS) of Military Equipment: U.S. arms sales licensed by the U.S. Department of State and concluded between U.S. weapons manufacturers and foreign clients.
Excess Defense Articles (EDA): Surplus or obsolete weapons owned by the U.S. Department of Defense or Coast Guard and provided to foreign governments or international organizations at a reduced price or as a grant.
Foreign Military Financing (FMF): Grants provided to foreign governments that are used to purchase U.S. weapons, training, and other defense articles and services. FMF grants are typically used to purchase defense articles and services from the U.S. government through its Foreign Military Sales (FMS) program, though a limited number of countries may also use FMF to purchase U.S. defense articles and services through direct commercial contracts.
International Military Education and Training (IMET): A U.S. military assistance program that provides grants for members of foreign governments (civil servants) and militaries to participate in any of more than 2,000 courses in U.S. military management and technical training offered at U.S. military schools and training institutions.
Peacekeeping Operations (PKO): A U.S. military assistance program that provides funds to support voluntary multi-national stabilization efforts, including peace support and stability operations as well as counterterrorism operations that are not funded through the United Nations. The CSPA contains exceptions for some assistance provided under PKO authority without the need for a waiver.
Certain Department of Defense authorities, including 10 USC Section 333 (formerly Section 1206): A consolidated global train and equip program allowing the Department of Defense to use its operations and maintenance funds to train and equip foreign militaries. While not explicitly mentioned in the CSPA, presidents have repeatedly waived the application of CSPA prohibitions to assistance or support provided under these programs “to the extent that the CSPA would restrict such assistance or support.”