[Senate Executive Report 107-4]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
SENATE
2d Session 107-4
======================================================================
THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON
THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY AND THE
OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE
INVOLVEMENT OF CHILDREN IN ARMED CONFLICT
June 12, 2002.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 106-37]
The Committee on Foreign Relations, to which was referred
the Optional Protocol to the Convention on the Rights of the
Child on the Sale of Children, Child Prostitution and Child
Pornography and the Optional Protocol to the Convention on the
Rights of the Child on the Involvement of Children in Armed
Conflict, having considered the same, reports favorably thereon
with 1 reservation, 6 understandings, 1 declaration, and 1
condition regarding the Optional Protocol to the Convention on
the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography; and 5 understandings and 3
conditions regarding the Optional Protocol to the Convention on
the Rights of the Child on the Involvement of Children in Armed
Conflict, as set forth in the resolutions of advice and
consent, and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolutions of advice and consent to
ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Entry Into Force/Amendment/Termination...........................5
IV. Committee Action.................................................6
V. Committee Recommendations and Comments...........................6
VI. Discussion of the Resolutions of Advice and Consent to
Ratification.....................................................8
VII. Text of Resolutions of Advice and Consent to Ratification.......13
VIII.Annex--Hearing on Protocols on Child Soldiers and Sale of Children
(Treaty Doc. 106-37), March 7, 2002.............................19
I. Purpose
The two treaties are designed to protect children around
the world. The first requires States Parties to criminalize the
sale of children for various forms of exploitation, and the use
of children in prostitution or pornography. The second contains
new standards, in the form of higher minimum age requirements,
on recruitment of children into the armed forces and use of
children in armed conflict.
II. Background
A. General
On May 25, 2000, the United Nations General Assembly
approved two Optional Protocols to the Convention on the Rights
of the Child: (1) the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography and (2) the
Optional Protocol on Involvement of Children in Armed Conflict
(hereafter referred to as ``Protocol on the Sale of Children''
and ``Protocol on Child Soldiers,'' respectively).
On July 5, 2000, the United States signed the Protocols.
The United States is not a party to the Convention on the
Rights of the Child, but has signed it; the Protocols are open
to signature by any country which has signed the Convention.
After President Clinton signed the Protocols, Congress approved
a non-binding provision in the annual defense authorization
bill welcoming the Protocol on Child Soldiers, and urging that
the Senate move forward ``as expeditiously as possible'' in
considering it.\1\
---------------------------------------------------------------------------
\1\ Sec. 1236 of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001 (P.L. 106-398).
---------------------------------------------------------------------------
President Clinton submitted the Protocols to the Senate on
July 25, 2000. The Protocols are set forth in one Senate treaty
document (Treaty Doc. 106-37), but are two separate legal
instruments.
The Bush administration indicated its support for the
Protocols by letter to the Committee dated August 31, 2000,
stating that the two treaties ``urgently need Senate approval''
(letter from Paul Kelly, Assistant Secretary of State for
Legislative Affairs). That statement was reaffirmed by the
administration by letter to the Committee dated February 7,
2002 (the letter sets forth the administration's treaty
priority list for the 107th Congress; the list places the
Protocols in the first category--those treaties ``for which
there is an urgent need for Senate approval'').
B. Key obligations of the Protocols and current U.S. law and practice
1. Protocol on the Sale of Children
The basic obligations of the Protocol on the Sale of
Children, set forth in Article 3, are as follows: States
Parties to the Protocol are required to ensure that the
following acts are ``fully covered under its criminal or penal
law, whether these offenses are committed domestically or
transnationally or on an individual or organized basis:''
(1) in the context of the sale of children, which is
defined as any act or transaction whereby a child is
offered, delivered, or accepted by one to another for
remuneration or any other consideration, for the
purpose of sexual exploitation, the transfer of a
child's organs for profit, or the engagement of a child
in forced labor. The Protocol also requires States
Parties to ban the act of improperly inducing consent,
as an intermediary, for the adoption of a child in
violation of applicable international legal instruments
on adoption;
(2) the offering, obtaining, procuring or providing a
child for child prostitution, which is defined as using
a child in sexual activities for remuneration or any
other form of consideration; and
(3) producing, distributing, disseminating,
importing, exporting, offering, selling or possessing
child pornography, which is defined as any
representation, by whatever means, of a child engaged
in real or simulated explicit sexual activities or any
representation of the sexual parts of a child for
primarily sexual purposes.
Other key provisions of the Protocol require States Parties to:
establish jurisdiction in their laws for these
offenses (Article 4);
recognize offenses covered by the treaty as
extraditable offenses (subject to national practice on
the existence of an extradition treaty as a
prerequisite to extradition), and, in the case of
States Parties which do not extradite on the basis of
nationality, to take measures to submit the case to its
competent authorities for the purpose of prosecution;
(Article 5);
cooperate with other parties in investigating or
prosecuting cases under the Protocol (Articles 6 and
10);
provide, subject to provisions of their national
law, for seizure and forfeiture of goods used to
facilitate the offense and proceeds derived from such
offenses (Article 7).
U.S. domestic law, at both the Federal and state level,
already covers the subjects addressed by the Protocol (see
pages 10-30 of the Treaty Document for an extensive analysis of
applicable Federal and state law). Congress enacted two
statutes in 2000--after submission of the Protocol to the
Senate--which further strengthen federal law in these areas.
These laws are the Victims of Trafficking and Violence
Protection Act of 2000 (P.L. 106-386) and the Intercountry
Adoption Act of 2000 (P.L. 106-279). The former provides
several new statutory provisions addressing trafficking of
children for sexual activity, child prostitution, and forced
labor. The latter implements a multilateral treaty on adoption,
and includes, among other things, criminal and civil penalties
for improper inducement of relinquishment of parental rights in
an international adoption covered by that treaty.
Accordingly, with one exception, no new legislation will be
required to comply with the Protocol. The exception relates to
a provision on court jurisdiction. Article 4(1) obligates
States Parties to take such measures as may be necessary to
establish jurisdiction over the criminal offenses set forth in
Article 3 when the offenses are committed in its territory or
``on board a ship or aircraft registered in that state.'' U.S.
court jurisdiction over such offenses is not always stated in
terms of ``registration'' of a ship or aircraft (it is focused,
rather, on ownership by U.S. persons or corporations). U.S.
Federal law will need to be amended in order for the United
States to comply with this requirement. In the meantime, the
Committee recommends a reservation in the instrument of
ratification stating that the treaty obligation on this aspect
of the Protocol will not apply to the United States until such
time as U.S. law is amended accordingly, at which time it is
expected that the President will withdraw the reservation.
2. Protocol on Child Soldiers
The Protocol on Child Soldiers contains four key
obligations. States Parties are obliged to:
(1) ``take all feasible measures'' to ensure that
members of the national armed forces who are under age
18 do not take a ``direct part'' in hostilities
(Article 1);
(2) ensure that people under age 18 are not
``compulsorily recruited'' into the armed forces
(Article 2);
(3) raise the minimum age for voluntary recruitment
into their national armed forces from the age of 15
(Article 3); and
(4) maintain safeguards to ensure that, if a State
permits voluntary recruitment for persons under age 18,
such recruitment is genuinely voluntary, it is done
with the informed consent of the person's parents or
legal guardians, such persons are fully informed of the
duties involved in military service, and such persons
provide reliable proof of age prior to their acceptance
into military service.
No changes in U.S. law will be required to fulfill the
obligations of the Protocol, although the Department of Defense
will need to issue appropriate internal directives to ensure
implementation of the obligation contained in Article 1.
The United States is already in compliance, by law and
practice, with the obligations of Articles 2 through 4.
Article 2 requires States Parties to ensure that people
under age 18 are not forcibly recruited into the armed forces.
The United States does not have a policy of compulsory military
service for persons of any age (the Selective Service System is
a registration system). According to testimony received by the
Committee from the Executive Branch, the Department of Defense
does not envision the need to reinstate the draft. It should
also be noted that the United States has already accepted a
similar international legal obligation. Under International
Labor Organization Convention 182 on the Worst Forms of Child
Labor (approved by the Senate in November 1999), the United
States is obligated to not compulsorily recruit people under 18
for ``use in armed conflict.''
Article 3 requires States Parties to raise the minimum age
for voluntary recruitment from that set out in Article 38(3) of
the Convention on the Rights of Child (which the United States
understands to mean 15 years of age). Article 4 requires
nations which enlist persons under age 18 to provide certain
safeguards. By law, persons less than 17 years of age may not
enlist in the U.S. armed forces, and those who are 17 may not
enlist unless they have the written consent of a parent or
guardian (10 U.S.C. Sec. 505). Persons under 18 also may not,
without parental consent, enter the Delayed Entry Program
(under the Delayed Entry Program, individuals sign enlistment
contracts committing to enlist in the military within one
year). (10 U.S.C. Sec. 513) The Defense Department requires
that every person recruited into the military receive a
comprehensive briefing and to sign an enlistment contract
which, together, specify the duties involved in military
service. Further, all recruits must provide reliable proof of
age before their entry into the military service.
Finally, it is worth noting that the Protocol will have no
effect on U.S. military academies, or Reserve Officer Training
Corps (ROTC) programs. Article 3(5) provides that the
requirement to raise the minimum age of recruitment in Article
3(1) ``does not apply to schools operated by or under the
control of the armed forces . . .'' In any event, individuals
must be 17 to enter U.S. military academies (e.g., 10 U.S.C.
Sec. 4346 (17-year-old minimum age for entrance to U.S.
Military Academy); 10 U.S.C. Sec. 6958 (same requirement for
U.S. Naval Academy); 10 U.S.C. Sec. 9346 (same requirement for
U.S. Air Force Academy)).
III. Entry into Force/Amendment/Termination
A. Entry into Force
Each Protocol enters into force three months after the
deposit of the tenth instrument of ratification or accession.
The Protocol on the Sale of Children entered into force on
January 18, 2002. The Protocol on Child Soldiers entered into
force on February 12, 2002. If the United States ratifies the
Protocols, they would enter into force for the United States
one month after the date of deposit of the instrument of
ratification (Article 14(2) of the Protocol on the Sale of
Children; Article 10(2) on the Protocol on Child Soldiers).
B. Amendments
Each Protocol has identical provision for amendments. Any
State Party may propose an amendment by presenting it to the
depository, the UN Secretary-General, who then communicates the
proposal to the States Parties, asking whether they support a
conference of States Parties to consider the proposals. If,
within four months of the communication by the Secretary-
General, at least one-third of the States Parties support such
a conference, he must convene it. Any amendment adopted by a
majority of States Parties present and voting at the conference
shall be submitted to the UN General Assembly for its approval.
An amendment enters into force when it has been approved by the
General Assembly and accepted by a two-thirds majority of
States Parties. An amendment is binding only on States Parties
accepting it. (Article 16 of Protocol on the Sale of Children;
Article 12 of Protocol on Child Soldiers).
C. Denunciation/termination
Under the terms of each Protocol, a State Party may
denounce the protocol at any time by written notification to
the UN Secretary-General. The denunciation takes effect one
year after the date of receipt of the notification. (Article
15(1) of the Protocol on the Sale of Children; Article 11(1) of
the Protocol on Child Soldiers). In the case of the Protocol on
Child Soldiers, however, if at the end of that one-year period
the denouncing State Party is engaged in armed conflict, the
denunciation ``shall not take effect before the end of the
armed conflict.'' Denunciation also does not release a State
party from obligations with regard to acts that occur prior to
the effective date of a denunciation.
IV. Committee Action
The Committee held a public hearing on the Protocols on
March 7, 2002, receiving testimony from representatives of the
Departments of State, Defense, and Justice. Testimony was also
received (focusing primarily on the Protocol on Child Soldiers)
from a panel of private witnesses consisting of two retired
admirals and a representative of a human rights organization.
All witnesses testified in favor of the Protocols. (The
transcript of the hearing is printed as an annex to this
report.)
On May 23, 2002, the Committee considered the Protocols and
ordered them favorably reported by voice vote, with a
recommendation that the Senate give its advice and consent to
the ratification of the Protocols subject to 1 reservation, 6
understandings, 1 declaration, and 1 condition regarding the
Protocol on the Sale of Children; and 5 understandings and 3
conditions regarding the Protocol on Children in Armed
Conflict, as set forth in the resolutions of advice and
consent.
V. Committee Recommendations and Comments
The Committee recommends that the Senate advise and consent
to the ratification of the two Protocols.
The Protocol on the Sale of Children will provide important
new standards--and provide a framework for international
cooperation--to combat the heinous crimes of the sale of
children, child pornography, and child prostitution. The scope
of the problem of trafficking, particularly of women and
children--for use in slave labor or in the sex industry--defies
comprehension. A State Department report indicates that,
according to reliable estimates, ``at least 700,000 persons,
especially women and children, are trafficked each year across
international borders,'' and that tens of thousands of women
and children are trafficked into the United States annually.\2\
Like-minded states must take all reasonable steps to prevent
and punish such odious offenses. The Protocol sets standards
which the United States will expect other nations to embrace
and enforce.
---------------------------------------------------------------------------
\2\ Department of State, Trafficking in Persons Report (July 2001).
---------------------------------------------------------------------------
The United States is already in a position to fulfill
nearly all of the obligations of the Protocol, with one
exception. It will have to make one minor modification to
Federal law related to jurisdiction.
The Protocol on Child Soldiers also addresses a problem of
unimaginable scope. Around the world, perhaps hundreds of
thousands of young children--some under the age of 10--engage
in armed conflict every year. The Protocol will not end this
outrageous practice, but it will establish new standards and
help shine a spotlight on those governments, and non-state
actors, which continue to employ children in armed conflict.
For the United States, the Protocol will impose a
manageable burden.
The Protocol will have no effect on recruiting into the
U.S. armed forces. It requires nations to ensure that people
under age 18 are not forcibly recruited into the armed forces.
As noted above, the United States does not forcibly recruit
people of any age. The Protocol also requires that States
Parties raise the minimum age for voluntary recruitment to some
age higher than 15. The United States does not permit
enlistment of individuals under the age of 17.
In considering the implications of the Protocol for the
United States, the key issue is whether the Protocol will
affect military readiness and U.S. operational requirements.
Article 1 of the Protocol requires States Parties to take ``all
feasible measures to ensure that members of their armed forces
who have not attained the age of 18 years do not take a direct
part in hostilities.'' The Department of Defense has assured
the Committee that, based on its review of the Protocol, it
``will not harm the military's ability to accomplish its
national security mission.'' The Committee agrees with this
judgment, for three reasons.
First, 17-year-olds are not a major part of U.S. military
recruiting. Of the nearly 175,000 new enlistees in the U.S.
military in Fiscal Year 2001, about 12,000 were 17 when they
enlisted, or about 7 percent. The percentage of 17-year-old
enlistees has varied in the last two decades--ranging from a
low of 3.6 percent in Fiscal 1993 to a high of 8.2 percent in
Fiscal 1982--but since Fiscal 1982 it has never exceeded 7
percent. Thus, as the Department of Defense testified, 17-year-
olds are an important part of military recruiting, but they do
not dominate the recruiting pool.
Second, meeting the Article 1 obligation will be manageable
for a simple reason: most 17-year-old recruits turn 18 while
still in training--either during basic training or in
subsequent training in a recruit's military specialty. In
Fiscal 2001, for example, there were only 2,263 individuals who
were 17 when they reached their operational bases. Of these
individuals, very few are deployed overseas, where they face a
higher probability of encountering a combat situation. In
February 2002, just 45 of these service personnel under the age
of 18 were assigned to units outside the continental United
States. Of these, only 7 servicemen and women--all sailors--
were participating in Operation Enduring Freedom. These data
indicate that the number of servicemen and women who are likely
to be assigned to units in theaters of potential combat is
minuscule.
Third, by its terms, Article 1 does not impose a complete
prohibition on participation in combat by those under age 18.
Rather, it requires states to take ``all feasible measures'' to
ensure that such individuals do not take a ``direct part'' in
hostilities. This flexible standard, and the interpretation set
forth in recommended understanding (2), will permit 17-year-
olds to engage in a range of activities, including combat
support or combat service support. The interpretation of
Article 1 is addressed in further detail below, in Section VI.
In sum, the Protocol will not require significant changes
in U.S. practice. The Committee notes, in particular, that the
Protocol accommodates the long-standing United States policy of
allowing 17-year-olds to voluntarily enlist in the armed
forces. The Committee supports this policy and this resolution
of the issue.
VI. Discussion of the Resolutions of Advice and Consent to Ratification
A. Protocol on the Sale of Children
Reservation regarding Article 4(1)
Article 4(1) of the Protocol obligates States Parties to
take ``such measures as may be necessary'' to establish
jurisdiction over the offenses referred to in Article 3(1),
when the offenses set forth in Article 3(1) are committed in
its territory or on board a ship or aircraft registered in that
State. Because U.S. jurisdiction is not usually couched in
terms of ``registration'' in the United States--it is generally
focused, rather, on ownership by U.S. persons or corporations--
the reach of U.S. jurisdiction is inadequate to comply with the
Protocol upon ratification. Department of Justice
representatives have indicated to the Committee that they are
working on a legislative proposal to amend U.S. law
accordingly.
In the meantime, the Committee recommends a reservation
which would have the effect of opting out of this obligation
temporarily. Once U.S. law is changed, it is expected that the
President would promptly withdraw the reservation. In this
connection, once U.S. law changes, the President need not seek
a further decision by the Senate in connection with the
withdrawal of the reservation.
Understanding (1)--Convention on the Rights of the Child
The United States is not a party to the Convention on the
Rights of the Child, though it is a signatory. Although styled
as a Protocol to the Convention, it is a stand-alone legal
instrument and therefore the United States does not assume any
obligations under the Convention on the Rights of the Child by
becoming a party to the Protocol. The first proposed
understanding would state that principle.
Understanding (2)--Definition of sale of children
Article 2(a) of the Protocol broadly defines the sale of a
child as ``any act or transaction whereby a child is
transferred by any person or group of persons to another for
remuneration or any other consideration.'' This broad
definition could be construed to include lawful acts, such as
the placement of a child in the temporary custody of a friend
or family member with the promise of payment for the child's
living or academic expenses. To ensure that such an improper
construction is not given, the Executive Branch recommends, and
the Committee agrees, that the Senate adopt an understanding
which makes clear that Article 2(a) is intended to cover those
transactions in which a person who does not have a lawful right
to custody of the child thereby obtains de facto control over
the child.
Understanding (3)--Definition of child pornography
Article 2(c) of the Protocol defines child pornography as
``any representation, by whatever means, of a child engaged in
real or simulated explicit sexual activities or any
representation of the sexual parts of a child for primarily
sexual purposes.'' To ensure that the term as applied by the
United States conforms with U.S. law, the Executive Branch
recommends, and the Committee agrees, that the Senate adopt an
understanding that the definition means the ``visual
representation of a child, engaged in real or simulated sexual
activities, or of the genitalia of a child where the dominant
characteristic is depiction for a sexual purpose.''
Understanding (4)--Definition of transfer of organs
Article 3(1)(a)(i)b requires States Parties to ensure that,
in the context of sale of children, the offering, delivering,
or accepting of a child for the ``purpose of transfer of organs
of the child for profit'' is fully covered under its criminal
law. The understanding makes clear that ``transfer of organs
for profit'' in the context of the sale of a child is not
intended to reach situations in which a child donates an organ
pursuant to lawful consent. The understanding also makes clear
that the term ``profit,'' as used in the provision, does not
extend to the lawful payment of reasonable expenses associated
with an organ transfer, for expenses such as travel, housing,
lost wages, and medical costs.
Understanding (5)--Improper inducement in relinquishment of parental
rights
Article 3(1)(a)(ii) requires States Parties to ensure that,
in the context of sale of children, the act of improperly
inducing consent, as an intermediary, for adoption in violation
of applicable international legal instruments on adoption is
fully covered under its criminal law. The use of the term
``applicable international legal instruments'' is understood to
mean the Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption (the ``Hague Convention'').
Because the United States is not currently a party to the Hague
Convention, the understanding states that the United States is
not obligated to criminalize the conduct prohibited in Article
3(1)(a)(ii) or take action as required under Article 3(5). The
understanding also elaborates on the meaning of the term
``improperly inducing consent.''
It should be noted that the Senate gave advice and consent
to the ratification of the Hague Convention during the 106th
Congress. The United States has not, however, deposited its
instrument of ratification, because it is not yet in a position
to fulfill the obligations of the Convention; that is because
the regulatory structure for implementation of the Convention
has not been finalized, though the necessary implementing
legislation has been enacted (P.L. 106-279).
Understanding (6)--Implementation of the Protocol in the Federal system
of the United States
This understanding makes clear that the United States will
carry out its obligations under the Protocol consistent with
its federal system of government, through legislation already
enacted by the federal government and the states of the United
States. The range of laws required by the Protocol are
addressed at both the federal and state level. Some provisions
required by the Protocol are, in the U.S. system, largely the
responsibility of the states. The understanding therefore
underscores that the Protocol will be implemented at the
federal level to the extent the federal government exercises
jurisdiction over matters covered therein, and that it will
otherwise be implemented by state and local governments. The
understanding is identical to one approved by the Senate in
1994 in consideration of the International Convention on the
Elimination of All Forms of Racial Discrimination.
Declaration
This declaration, which would not be included in the
instrument of ratification, provides that the provisions of the
Protocol are not self-executing, with one exception. The
exception is Article 5, which permits parties to consider the
offences covered by Article 3(1) as extraditable offenses in
any existing extradition treaty between States Parties. That
said, the United States will continue to undertake any
extraditions pursuant to the provisions of Chapter 209 of Title
18, United States Code. The declaration also makes plain that
the United States considers that current law, including the
laws of the states, adequately fulfills the obligations of the
Protocol, and therefore it does not intend to enact new
legislation to fulfill its obligations. There is one exception
to this statement as well: as noted in the reservation
described above, a minor change to federal law will be required
to satisfy the obligations of Article 4(1).
Condition on interpretation
This condition sets forth important principles of treaty
interpretation, which the Senate has reaffirmed on numerous
occasions in the last decade. These principles apply whether or
not the Senate chooses to say so during consideration of a
treaty.
B. Protocol on Child Soldiers
Understanding (1)--Convention on the Rights of the Child
The United States is not a party to the Convention on the
Rights of the Child, though it is a signatory. Although styled
as a Protocol to the Convention, the Protocol is a stand-alone
legal instrument and therefore the United States does not
assume any obligations under the Convention on the Rights of
the Child by becoming a party to the Protocol. This
understanding would state that principle.
Understanding (2)--Implementation of Article 1 obligation
Article 1 of the Protocol requires States Parties to take
``all feasible measures'' to ensure that members of the
national armed forces who are under age 18 to not take a
``direct part'' in hostilities. The understanding recommended
by the Executive Branch (and modified by the Committee only for
sake of clarity, but not in substance) would set forth the
United States understanding with regard to the meaning of the
terms ``feasible measures'' and ``direct part in hostilities.''
First, the phrase ``feasible measures,'' according to the
understanding, means ``those measures that are practical or
practically possible, taking into account all the circumstances
ruling at the time, including humanitarian and military
considerations.''
This reading of the flexibility of Article 1 is derived
from a common sense reading of the text. Quite obviously, a
requirement to take ``all feasible measures'' does not require
a rule of rigid application, but rather requires an assessment
of what is practical based on the totality of circumstances. At
the same time, it should not be read by the United States, or
other States Parties, as a loophole to permit widespread
employment of 17-year-olds in direct hostilities. A good faith
implementation of the treaty obligation requires parties to
take reasonable steps to keep those under 18 from direct
participation in combat, and that such participation should
occur only in exceptional circumstances.
The flexible reading of the term is also rooted in
antecedents in existing multilateral treaties related to the
law of armed conflict. For example, under Protocol II to the
Conventional Weapons Convention, the term ``feasible'' is a
defined term, meaning that which is ``practicable or
practically possible taking into account all circumstances
ruling at the time, including humanitarian and military
considerations'' \3\--precisely the formulation in the proposed
understanding.
---------------------------------------------------------------------------
\3\ Article 3(10) of the Protocol on Prohibitions or Restrictions
on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May
1996 Annexed to the Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects. The United
States ratified the Convention on Conventional Weapons and Protocol II
in 1995; the amended Protocol II was ratified in 1999.
---------------------------------------------------------------------------
As to the scope of ``direct part in hostilities,'' the
proposed understanding states that it 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.'' Further,
the proposed understanding states what the United States
believes the phrase does not include: namely, it does not
include ``indirect participation in hostilities, such as
gathering and transmitting military information, transporting
weapons, munitions and other supplies, or forward deployment.''
This list of activities considered to be ``indirect
participation in hostilities'' should not be considered
exhaustive.
This interpretation of ``direct part in hostilities'' is,
in the view of the Committee, a natural reading of the text.
The prohibition on ``direct'' participation obviously means
that ``indirect participation'' in hostilities is permitted.
This phrase also has roots in a prior international legal
instrument. As noted above, Article 77 of Additional Protocol I
to the Geneva Conventions requires that parties take all
feasible measures to ensure that children under age 15 do not
take a ``direct part in hostilities.'' The ICRC commentary on
this article indicates that the term ``implies a direct causal
relationship between the activity engaged in and the harm done
to the enemy at the time and the place where the activity takes
place.'' \4\
---------------------------------------------------------------------------
\4\ ICRC Commentary on Additional Protocol I, para. 1679; para.
3187 & n.7 (commentary on Article 77, which cross-references commentary
on the term in Article 43).
---------------------------------------------------------------------------
Finally, the proposed understanding sets forth the
principle that military commanders and other personnel in
positions of authority with regard to a military action shall
only be judged with respect to the U.S. obligation under
Article 1, 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 they made the
decisions resulting in the action under review.
Understanding (3)--Minimum age for voluntary recruitment
Under Article 3(1), States Parties are required to raise
the minimum age for voluntary recruitment of persons into the
armed forces from ``that set out in Article 38, paragraph 3 of
the Convention on the Rights of the Child, taking account of
the principles contained in that article and recognizing that
under the Convention persons under 18 are entitled to special
protection.'' Article 38(3) of the Convention on the Rights of
the Child requires parties to ``refrain from recruiting'' any
person not yet 15 years of age. In the event that the
provisions of Article 38 is subsequently modified, an
understanding is recommended to make clear that the United
States understands that the obligation of the Protocol is to
raise the minimum age for voluntary recruitment into the armed
forces from the current international standard of 15.
Understanding (4)--Armed groups
This states that the United States understands the term
``armed groups'' in Article 4 of the Protocol to mean non-
governmental armed groups, such as rebel groups, dissident
armed forces, and other insurgent groups. This statement also
makes clear that the term ``armed groups'' does not refer to
any governmental entities.
Understanding (5)--No basis for jurisdiction by any international
tribunal
This provision states the United States understanding that
nothing in the Protocol establishes a basis for jurisdiction by
any international tribunal, including the International
Criminal Court.
Condition 1--Declaration on minimum age for recruitment
Under Article 3(2) of the Protocol, States Parties are
required to deposit a binding declaration upon ratification
setting forth the minimum age at which it will permit voluntary
recruitment and describing the safeguards it has adopted to
ensure that such recruitment is not forced. The condition
requires the President to deposit a declaration stating U.S.
law and policy on enlistment of 17-year-olds.
Condition 2--Interpretation of the Protocol
This condition sets forth important principles of treaty
interpretation, which the Senate has reaffirmed on numerous
occasions in the last decade. These principles apply whether or
not the Senate chooses to say so during consideration of a
treaty.
Condition 3--Reports on implementation
This condition requires the Secretary of Defense to report
to the Committees on Foreign Relations and Armed Services
within 90 days of the deposit of the instrument of ratification
on the steps the military departments have taken to comply with
the obligation of Article 1. The condition also requires the
Secretary of State to submit to the same Committees the report
required under Article 8 of the Protocol. Finally, the
condition requires the Secretary of Defense to report to the
Committees whenever there is a significant change in the
policies of the military departments in implementing the
obligation set forth in Article 1.
The Committee believes that the Department of Defense
should have flexibility in implementing the obligation of
Article 1. At the same time, this Committee and the Committee
on Armed Services have an oversight responsibility to monitor
compliance with this core obligation. To date, the Department
has indicated only that it will focus on ``when and where 17-
year-olds are deployed,'' a formulation that provides little
substantive information. The Department obviously has a range
of options, including banning deployment of 17-year-olds to
areas where combat is likely (as the Air Force did before
signature of the Protocol \5\). That is a matter left to the
sound discretion of the Department of Defense. With this
reporting requirement, the Committee intends to ensure that
Congress is informed of the measures taken to comply with the
Protocol, and informed of any significant changes to such
policies.
---------------------------------------------------------------------------
\5\ Air Force Instruction 36-2110 (issued February 2000) states
that Air Force members must be ``at least 18 years of age to be
assigned to a hostile fire or imminent danger area.''
---------------------------------------------------------------------------
VII. Text of Resolutions of Advice and Consent to Ratification
a. PROTOCOL ON THE SALE OF CHILDREN
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL PROTOCOL
TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE
SALE OF CHILDREN, CHILD PROSTITUTION, AND CHILD
PORNOGRAPHY, SUBJECT TO A RESERVATION,
UNDERSTANDINGS, A DECLARATION, AND A CONDITION.
The Senate advises and consents to the ratification of the
Optional Protocol Relating to the Convention on the Rights of
the Child on the Sale of Children, Child Prostitution, and
Child Pornography, 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 reservation in section 2, the
understandings in section 3, the declaration in section 4, and
the condition in section 5.
SEC. 2. RESERVATION.
The advice and consent of the Senate under section 1 is
subject to the reservation, which shall be included in the
United States instrument of ratification of the Protocol, that,
to the extent that the domestic law of the United States does
not provide for jurisdiction over an offense described in
Article 3(1) of the Protocol if the offense is committed on
board a ship or aircraft registered in the United States, the
obligation with respect to jurisdiction over that offense shall
not apply to the United States until such time as the United
States may notify the Secretary-General of the United Nations
that United States domestic law is in full conformity with the
requirements of Article 4(1) of the Protocol.
SEC. 3. UNDERSTANDINGS.
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 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) The term ``sale of children''.--The United States
understands that the term ``sale of children'', as
defined in Article 2(a) of the Protocol, is intended to
cover any transaction in which remuneration or other
consideration is given and received under circumstances
in which a person who does not have a lawful right to
custody of the child thereby obtains de facto control
over the child.
(3) The term ``child pornography''.--The United
States understands the term ``child pornography'', as
defined in Article 2(c) of the Protocol, to mean the
visual representation of a child engaged in real or
simulated sexual activities or of the genitalia of a
child where the dominant characteristic is depiction
for a sexual purpose.
(4) The term ``transfer of organs for profit''.--The
United States understands that--
(A) the term ``transfer of organs for
profit'', as used in Article 3(1)(a)(i) of the
Protocol, does not cover any situation in which
a child donates an organ pursuant to lawful
consent; and
(B) the term ``profit'', as used in Article
3(1)(a)(i) of the Protocol, does not include
the lawful payment of a reasonable amount
associated with the transfer of organs,
including any payment for the expense of
travel, housing, lost wages, or medical costs.
(5) The terms ``applicable international legal
instruments'' and ``improperly inducing consent''.--
(A) Understanding of ``applicable
international legal instruments''.--The United
States understands that the term ``applicable
international legal instruments'' in Articles
3(1)(a)(ii) and 3(5) of the Protocol refers to
the Convention on Protection of Children and
Co-operation in Respect of Intercountry
Adoption done at The Hague on May 29, 1993 (in
this paragraph referred to as ``The Hague
Convention'').
(B) No obligation to take certain action.--
The United States is not a party to The Hague
Convention, but expects to become a party.
Accordingly, until such time as the United
States becomes a party to The Hague Convention,
it understands that it is not obligated to
criminalize conduct proscribed by Article
3(1)(a)(ii) of the Protocol or to take all
appropriate legal and administrative measures
required by Article 3(5) of the Protocol.
(C) Understanding of ``improperly inducing
consent''.--The United States understands that
the term ``improperly inducing consent'' in
Article 3(1)(a)(ii) of the Protocol means
knowingly and willfully inducing consent by
offering or giving compensation for the
relinquishment of parental rights.
(6) Implementation of the protocol in the federal
system of the united states.--The United States
understands that the Protocol shall be implemented by
the Federal Government to the extent that it exercises
jurisdiction over the matters covered therein, and
otherwise by the State and local governments. To the
extent that State and local governments exercise
jurisdiction over such matters, the Federal Government
shall, as necessary, take appropriate measures to
ensure the fulfillment of the Protocol.
SEC. 4. DECLARATION.
The advice and consent of the Senate under section 1 is
subject to the declaration that--
(1)(A) the provisions of the Protocol (other than
Article 5) are non-self-executing; and
(B) the United States will implement Article 5 of the
Protocol pursuant to chapter 209 of title 18, United
States Code; and
(2) except as described in the reservation in section
2--
(A) current United States law, including the
laws of the States of the United States,
fulfills the obligations of the Protocol for
the United States; and
(B) accordingly, the United States does not
intend to enact new legislation to fulfill its
obligations under the Protocol.
SEC. 5. CONDITION.
The advice and consent of the Senate under section 1 is
subject to the condition that 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).
(b) PROTOCOL ON CHILD SOLDIERS
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL PROTOCOL
TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE
INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, SUBJECT
TO UNDERSTANDINGS AND CONDITIONS.
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.
SEC. 2. UNDERSTANDINGS.
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 nongovernmental 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.
SEC. 3. CONDITIONS.
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 therefor.
VIII. Annex
HEARING ON PROTOCOLS ON CHILD SOLDIERS AND SALE OF CHILDREN (Treaty
Doc. 106-37)
----------
CONTENTS
Page
Becker, Ms. Jo, Children's Rights Advocacy Director, Human Rights
Watch, New York, NY........................................... 55
Prepared statement............................................ 58
Responses to additional questions for the record from Senator
Helms....................................................... 61
Billingslea, Marshall, Deputy Assistant Secretary for Negotiations
Policy, Department of Defense, Washington, DC................. 29
Prepared statement............................................ 33
Responses to additional questions for the record from Senator
Boxer....................................................... 43
Responses to additional questions for the record from Senator
Helms.......................................................43, 46
Carroll, RADM. Eugene, J., Jr., USN (Ret.), Vice President
Emeritus, Center for Defense Information, Washington, DC...... 64
Prepared statement............................................ 66
Responses to additional questions for the record from Senator
Helms....................................................... 67
Fanning, RADM. Timothy O., Jr., USNR (Ret.), National President of
the Navy League of the United States, Arlington, VA........... 68
Prepared statement............................................ 69
Responses to additional questions for the record from Senator
Helms....................................................... 70
Feingold, Hon. Russell D., U.S. Senator from Wisconsin, prepared
statement..................................................... 73
Malcolm, John G., Deputy Assistant Attorney General, Criminal
Division, Department of Justice, Washington, DC............... 46
Prepared statement............................................ 48
Responses to additional questions for the record from Senator
Helms....................................................... 49
Responses to Additional Questions for the Record Submitted to
Various Witnesses and Government Agencies from Senators Biden
and Helms..................................................... 79
Revaz, Cris R., on behalf of the American Bar Association,
prepared statement............................................ 73
Southwick, Hon. E. Michael, Deputy Assistant Secretary for
International Organization Affairs, Department of State,
Washington, DC................................................ 23
Prepared statement............................................ 25
Responses to additional questions for the record from Senator
Helms....................................................... 27
----------
THURSDAY, MARCH 7, 2002
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The Committee met at 10:20 a.m., in room SD-419, Dirksen
Senate Office Building, Hon. Barbara Boxer, presiding.
Present: Senators Boxer, Wellstone, and Helms.
Senator Boxer. The Senate Foreign Relations Committee will
come to order.
I am very delighted to see that Senator Helms is here at
this very important hearing.
Today the Committee meets to consider two optional
protocols to the U.N. Convention on the Rights of the Child.
The Optional Protocol on Involvement of Children in Armed
Conflict, also known as the Child Soldiers Protocol, aims to
prevent children under the age of 18 from directly
participating in hostilities. The second treaty, the Optional
Protocol on the Sale of Children, Child Prostitution, and Child
Pornography, aims to strengthen efforts to put a stop to the
trafficking and exploitation of children.
To avoid any confusion, I want to point out that these are
protocols to the U.N. Convention on the Rights of the Child.
While the United States has not ratified the underlying
convention, we can become a party to both protocols without
becoming a party to the convention or without becoming subject
to its provisions. There are divisions on that particular
question, so we are not taking up the underlying treaty. We are
just talking about the optional protocols.
The Child Soldiers Protocol requires states parties to the
treaty to, one, take all feasible measures to ensure that
individuals under the age of 18 do not take a direct part in
hostilities. Two, it bans involuntary recruitment into the
armed forces for those under the age of 18, and I underline
``involuntary.'' And three, it raises the minimum age for
voluntary recruitment into the armed forces from the current
benchmark of 15 years of age to that of 16 or higher. Under
current law, the minimum age for voluntary recruitment in the
United States of America is already set at 17.
Why is ratification of the Child Soldiers Protocol
important? Right now, an estimated 300,000 children under the
age of 18 are currently fighting in more than 30 conflicts
around the world. In places like Sierra Leone, children have
been kidnaped by rebel groups, given drugs, and forced to
commit atrocities. Child soldiers not only lose their
childhood, but they develop psychological scars, they suffer
physical injuries, and in the worst cases, they die.
Listen to the story of a 16-year-old girl who was abducted
by the Lord's Resistance Army in Uganda, and I am quoting this
child, this girl. ``One boy tired to escape but he was caught.
His hands were tied, and then they made us, the other new
captives, kill him with a stick. I felt sick. I knew this boy
from before. We were from the same village. I refused to kill
him, and they told me they would shoot me. They pointed a gun
at me, so I had to do it. The boy was asking me, why are you
doing this? I said I had no choice. After we killed him, they
made us smear his blood on our arms. They said we had to do
this so we would not fear death and so we would not try to
escape. I still dream about the boy from my village who I
killed. I see him in my dreams and he is talking to me and
saying I killed him for nothing and I am crying.''
To those who believe this is a problem that does not affect
us in the United States, because clearly our rules comply with
the protocol, you only have to look at Afghanistan. And I want
to show you a photo here, Senator Helms. This was actually a
photo pre-Taliban where you see these literally--I call them
babies, but children with their guns, with their tattered
shoes, and with a look in their eyes that you could just see--
well, in many ways the numbness.
So, here you have a situation in Afghanistan, and there are
reports today that children as young as 12 are taking part in
the fighting. As one captured Taliban fighter said earlier this
year--and you see the cynicism and the evil in this comment--
``Children are innocent, so they are the best tools against
dark forces.''
This is one reason why it is in our national interest to
ratify this protocol. Our military personnel are some of our
Nation's most decent and honorable citizens. I can only imagine
the moral dilemma faced by our soldiers if they come face to
face with an AK-47 in the hands of a 12-year-old child.
But it is not only in our national interest, it is our
moral obligation. We must send a signal to the rest of the
world that the use of child soldiers is intolerable.
The second treaty for consideration this morning is the
Protocol on the Sale of Children, Child Prostitution, and Child
Pornography. The Sale of Children Protocol requires states
parties to make sure that these acts are fully covered by penal
or criminal law. This abuse of children is a global problem.
Millions of boys and girls under the age of 18 are bought and
sold each year. Girls are particularly vulnerable.
According to UNICEF, the U.N. Children's Fund, girls appear
to be forced into the sex industry at increasingly younger
ages, partly as a result of the mistaken belief that younger
girls are unlikely to be infected with HIV or AIDS. Let me
mention a few atrocious examples.
A 15-year-old boy from Mali watched the torture and
subsequent death of two other forced laborers who tried to
escape from a coffee plantation in the Ivory Coast.
A 14-year-old girl was brutally raped and then prostituted
for months by traffickers in Florida who lured her there by
promising her a job in the restaurant business.
An 11-year-old girl in Thailand was included in a sexually
explicit videotape produced by a pornographer in the United
States of America.
Under the protocol, countries are encouraged to cooperate
to protect children trafficked across borders. The optional
protocol also calls on states parties to ensure that children
who have been sexually trafficked, exploited, or sexually
abused receive services to ensure a complete physical and
psychological recovery.
Ratification of this treaty is important to protect these
vulnerable children. These children cannot often get help on
their own not only because of the young age, but also because
they have no birth certificate or official document. They are,
in effect, invisible.
Earlier this year, both of these protocols obtained the
necessary 10 ratifications to make them operative. The Child
Soldier Protocol entered into force on February 12. The Sale of
Children Protocol entered into force on January 18.
I very much appreciate the support of the administration
for these protocols, and I want to thank the representatives
from the Departments of State, Defense, and Justice for joining
us here this morning. Before I introduce them formally, it is
my honor to call on Senator Helms for his opening remarks.
Senator Helms. Thank you, Madam Chairman. I was watching
you intently as you delivered your statement, and you were on
the verge of choking up a time or two. I think that tells
something about you, as well as the issue that we have.
I sit at home and see these children on television with
their little bloated bellies and little, tiny arms, and I
wonder what in the dickens Jesse Helms could do.
And maybe this will strike a blow a little bit, but before
I get started, I do not know whether any of you gentlemen have
ever heard of Franklin Graham or not. He is Billy Graham's son.
And he does great work with Samaritan's Purse, an organization
that he operates worldwide. One of the features of this past
year was the collection of 5\1/2\ million shoe boxes filled
with little gifts, toothpaste, soap, candy, a comb maybe,
whatever, and wrapped in Christmas paper. And the Air Force has
been so helpful in distributing those.
Franklin told me that one little boy broke his heart. He
had never gotten a present of any sort before, none ever. And
this gaudy Christmas package, he thought the package was his
present. He did not know he was supposed to unwrap it and see
what Santa Claus had brought him.
So, we can sit here smugly in our comfort and in our good
fortune--and the older I get, and I am getting older faster.
But we have got to do something about the children of the
world, and this is a step.
Now, the two protocols represent, as the distinguished
chairman has said, well-intended efforts to protect the lives
of children.
The Protocol on the Sale of Children seems to protect
children from the most reprehensible attacks that she has
talked about by criminalizing such activities as the outright
sale of children and pornography and the prostitution of
children. And it is going on rampant. I think all countries,
none excluded, have got to do their utmost to provide a safe
and nurturing environment for these children.
With regard to the Child Soldiers Protocol, I guess I
better make myself perfectly clear, as one of the Presidents
used to say. The forced conscription of children--some as young
as 7 years old--to fight is an abominable, reprehensible
practice wherever it is occurring. But this horrible practice
is taking place in Africa, East Asia, and elsewhere, and
everybody on this panel knows that as well as I do or better.
Our visitors, whom we welcome here this morning, I hope will
understand the importance of this meeting here.
American ratification of this protocol should not and must
not be used by some to undermine our military recruiting
efforts and deployment policies. Most of the estimated 300,000
children who are fighting as soldiers--and I find that
absolutely amazing--are fighting as soldiers in 41 countries.
They are conscripted by paramilitary groups, not the legitimate
governments of those countries. So, my conclusion, Madam Chair,
is that we better not fool ourselves that another international
convention which will never be seen nor read nor considered nor
observed by these paramilitaries will solve this unthinkable
problem.
Now, the Department of Defense representative here today
may tell us that compliance with the protocol is manageable, as
indeed almost any problem is, but I do hope that we will be
hearing assurances that military commanders will not be impeded
in their operations or charged with violating this protocol. In
fairness to them, whom we send overseas to defend us, we must
see that the disruption of unit morale and readiness--factors
critical to maintaining a robust military and winning in any
armed conflict, are not hurt or deterred.
One more thing, Madam Chairman. I am going to seek
assurances that this protocol will not incur a legal liability
on the United States taxpayers to help other nations through
financial and other assistance comply with this protocol, and
that ratification will not give legal recognition to the
Convention on the Rights of the Child.
I am just about through. I have assured Senator Biden, the
chairman of this Committee, that I will work with him and with
our President to ensure that the appropriate conditions and
reservations are placed in the resolution of ratification to
protect our current recruitment practices and safeguard our
existing foreign policies and support military commanders who
are trying to do their duty. We must do that, but we must find
a way to help these children and I think we can do it if we put
our minds to it.
Thank you, Madam Chair.
Senator Boxer. Thank you so much, Senator Helms. I hope
when our panel speaks today, they will address your concerns. I
have a feeling they knew you had them, and so I think that you
may well have your fears allayed on this. I hope so, in any
case.
Let me introduce the whole panel and then we will start
with Ambassador Southwick. Ambassador Michael Southwick, Deputy
Assistant Secretary for the Bureau on International
Organization Affairs at the State Department, led the team that
successfully negotiated the Optional Protocol on Child
Soldiers. He is a native of my home State of California and a
graduate of Stanford University.
Mr. Marshall Billingslea is Deputy Assistant Secretary for
Negotiations Policy at the Department of Defense. Mr.
Billingslea is a former staff member of the Senate Foreign
Relations Committee and he is a new father, and we welcome you
back and we thank you for coming this morning.
Mr. John Malcolm, Deputy Assistant Attorney General at the
Justice Department's Criminal Division, recently headed the
U.S. delegation to the Second World Congress on Commercial
Sexual Exploitation of Children.
We are very happy the three of you are here. Again, I want
to thank the administration for working with us on this very
important hearing and hopefully to see this thing through
successfully.
Ambassador Southwick, will you open please.
STATEMENT OF HON. E. MICHAEL SOUTHWICK, DEPUTY ASSISTANT
SECRETARY FOR INTERNATIONAL ORGANIZATION AFFAIRS, DEPARTMENT OF
STATE, WASHINGTON, DC
Ambassador Southwick. Thank you, Madam Chairperson, Senator
Helms. I am very pleased to appear before you today
representing the Bush administration to speak in support of
Senate advice and consent to ratification of two historic
international treaties advancing international efforts to
protect the children of the world. The first concerns children
in armed conflict; the second concerns the sale of children,
child prostitution, and child pornography.
The State Department worked closely with the Department of
Defense on the Protocol on Children in Armed Conflict, and with
the Justice Department on the Protocol on the Sale of Children.
As the German theologian Dietrich Bonhoeffer observed,
``the test of morality of a society is what it does for
children.'' This is a test we believe that the United States
and the international community cannot afford to fail. The
statistics are staggering, as some of you have mentioned
already. An estimated 30 million children worldwide are
sexually exploited, prostituted, and trafficked each year.
Sixty million children work under intolerable forms of labor,
and an estimate 300,000 children have been recruited as
participants in ongoing armed conflicts. These two treaties are
a part of the efforts of the United States and many other
countries to address these problems.
In this connection, 2 years ago the United States became
the third state to ratify International Labor Organization's
Convention 182 on the Worst Forms of Child Labor. Now, the
administration hopes that the United States will become one of
the first states to ratify these two protocols now under
consideration. Together these instruments form a trio of vital
protections for children around the world.
We recognize that these treaties are not magic wands. They
are tools. They can be used. They can help. A lot depends on
how we followup once, if the Senate so agrees, they receive
advice and consent.
The transmittal of these two protocols to the Senate on
July 25, 2000, includes a detailed article-by-article analysis
of each instrument. I will not restate in my testimony today
detailed explanations of the protocol's provisions or our
proposed understandings and declaration, but will highlight for
the Committee some of the key provisions of each protocol.
I note, as has already been mentioned, that though these
protocols are styled as protocols to the Convention on the
Rights of the Child, by its terms these protocols will operate
as independent multilateral agreements under international law.
States may ratify either protocol without becoming a party to
the convention or being subject to its provisions.
The Children in Armed Conflict Protocol deals realistically
with difficult issues of minimum ages for compulsory
recruitment, voluntary recruitment, and participation in
hostilities. The protocol raises the age for military
conscription in international legal instruments from 15 years
to 18 years, consistent with the requirements of ILO Convention
182. It obliges states parties to raise the minimum age for
voluntary recruitment to an age above the current 15-year
international standard. It also mandates that states parties
take all feasible measures to ensure that personnel in their
national armed services who are not yet 18 do not take a direct
part in hostilities. States parties to the protocol must also
prohibit and criminalize the recruitment and use of persons
below the age of 18 by non-governmental armed groups.
The provisions permitting voluntary recruitment below 18
and direct use of those soldiers in hostilities in exceptional
circumstances were essential for the United States, given our
longstanding tradition of allowing 17-year-olds with parental
consent to enter the military. As my counterpart from the
Department of Defense will explain in more detail, the
administration believes that the provisions in the protocol are
fully consistent with current U.S. recruiting practice and
would not adversely affect the military's ability to accomplish
its national security missions.
In our view, another important aspect of the protocol
concerns its provisions promoting international cooperation. In
many parts of the world, including Uganda where I served as
Ambassador, children as young as 10 or 11 years old carry guns,
machetes, and are deeply involved in armed conflict. The
protocol will promote rehabilitation of children who have been
victimized by armed conflict.
The Sale of Children Protocol directly complements ILO 182
on the Worst Forms of Child Labor. It is the first
international instrument to define the terms ``sale of
children,'' ``child prostitution,'' ``child pornography.'' The
protocol requires these offenses to be treated as criminal acts
and provides law enforcement and cooperation tools for the
purpose of bringing perpetrators of these offenses to justice.
Additionally, the protocol establishes stronger grounds for
jurisdiction and extradition. Moreover, its extensive
provisions on prevention and cooperation will help child
victims receive the protection and assistance they need.
In many countries, the age of sexual consent is set between
the ages of 13 and 16, and if a child of that age has consented
to a sexual act, no crime involving child prostitution or child
pornography has been committed. The protocol, however,
precludes the possibility that a child under 18 could consent
to crimes such as child prostitution, child pornography, and
trafficking in children. It broadly requires that states
parties criminalize activities relating to child prostitution
and child pornography without reference to state law or the age
of consent.
The two protocols, together with ILO 182, provide we
believe a firm foundation for international action on behalf of
children. No one country can fight this battle alone. It is a
worldwide problem. Nations must join together in taking
responsibility for improving the plight of children. The goal
of the United States, we hope, is that all countries will join
this battle and put an end to these abuses.
Thank you, Madam Chairperson.
[The prepared statement of Ambassador Southwick follows:]
Prepared Statement of Hon. E. Michael Southwick, Deputy Assistant
Secretary for International Organization Affairs, Department of State
I am pleased to appear before you today to speak in support of
Senate advice and consent to ratification of two historic international
treaties advancing international efforts to protect the children of the
world. The first is the Optional Protocol to the Convention on the
Rights of the Child on Involvement of Children in Armed Conflict. The
second is the Optional Protocol to the Convention on the Rights of the
Child on the Sale of Children, Child Prostitution and Child
Pornography.
The State Department worked closely with the Defense Department on
the Protocols on Children in Armed Conflict and with the Justice
Department on the Protocol on the Sale of Children, Child Prostitution
and Child Pornography. I am pleased to be joined here today by
representatives of both agencies.
As the German theologian Dietrich Bonhoeffer observed, ``the test
of morality of a society is what it does for children.'' This is a test
the United States and the international community cannot afford to
fail. The statistics are staggering: (1) an estimated 30 million
children world-wide are sexually exploited, prostituted and trafficked
each year; (2) 60 million children work under intolerable forms of
labor; and, (3) an estimated 300,000 children have been recruited as
participants in on-going armed conflicts and over two million have been
killed as a result of these conflicts. These two treaties are a part of
the efforts of the United States and many other countries to address
these problems.
In this connection, two years ago the United States became the
third state to ratify International Labor Organization's Convention 182
on the Worst Forms of Child Labor. That instrument has become the most
quickly ratified convention in the history of the ILO, with 117 states
parties. Now the Administration hopes that the United States will
become one of the first states to ratify these two protocols now under
consideration by this Committee. Together these new instruments form a
trio of vital protections for children around the world.
The transmittal of these two protocols to the Senate, on July 25,
2000, includes a detailed article-by-article analysis of each
instrument. The transmittal recommended three understandings and one
declaration on the children in armed conflict protocol and five
understandings and one declaration for the sale of children protocol. I
will not restate in my testimony today detailed explanations of the
protocols' provisions or our proposed understandings and declaration,
but will highlight for the Committee some of the key provisions of each
protocol and will explain why the Administration strongly supports
early Senate approval of these two protocols.
Before discussing the protocols further, I note that although they
are styled as protocols to the Convention on the Rights of the Child,
each protocol, by its terms, will operate as an independent
multilateral agreement under international law. States may ratify
either protocol without becoming a party to the Convention or being
subject to its provisions.
children in armed conflict protocol
The Children in Armed Conflict Protocol deals realistically and
reasonably with the difficult issues of minimum ages for compulsory
recruitment, voluntary recruitment, and participation in hostilities.
The protocol raises the age for military conscription in international
legal instruments from 15 years to 18 years, consistent with the
requirements of ILO Convention 182. It also obliges states parties to
raise the minimum age for voluntary recruitment to an age above the
current fifteen-year international standard, and also mandates that
states parties take all feasible measures to ensure that personnel in
their national armed forces who are not yet eighteen do not take a
direct part in hostilities. States parties to the protocol must also
prohibit and criminalize the recruitment and use of persons below the
age of eighteen by non-governmental armed groups.
The provisions permitting voluntary recruitment below 18 and direct
use of those soldiers in hostilities in exceptional circumstances were
essential for the U.S., given our long standing tradition of allowing
17-year-olds with parental consent to enter the military. As my
counterpart from DOD will explain in more detail, the Administration
believes that the provisions in the protocol are fully consistent with
current U.S. recruiting practices and would not adversely affect the
military's ability to accomplish its national security missions.
In our view, another important aspect of the protocol concerns its
provisions promoting international cooperation. In many parts of the
world, children as young as ten or eleven years old carry guns or
machetes and are deeply engaged in armed conflict. In Angola and
Uganda, for example, thousands of children have been abducted and
forced to become child soldiers. The protocol will not only require
that states cooperate internationally to prohibit such practices, but
also to promote rehabilitation of children who have been victimized by
armed conflict.
SALE OF CHILDREN PROTOCOL
The Sale of Children Protocol directly complements ILO 182 on the
Worst Forms of Child Labor. It is the first international instrument to
define the terms ``sale of children,'' ``child prostitution'' and
``child pornography.'' The protocol requires these offenses to be
treated as criminal acts and provides law enforcement and cooperation
tools for the purpose of bringing perpetrators of these offenses to
justice. Additionally, the protocol establishes stronger, clearer
grounds for jurisdiction and extradition, to better ensure that
offenders can be prosecuted regardless of where they are found.
Moreover, its extensive provisions on prevention and cooperation will
help child victims receive the protection and assistance they
desperately need.
A major dispute in the sale of children negotiations, which was
resolved to the satisfaction of the United States, concerned the
minimum age for protection of children from prostitution and
pornography. In many countries, the age of sexual consent is set
between the ages of thirteen and sixteen, and if a child of that age
has consented to a sexual act, no crime involving child prostitution or
child pornography has been committed. The protocol, however, precludes
the possibility that a child under eighteen could consent to crimes
such as child prostitution, child pornography, and trafficking in
children. It broadly requires that states parties criminalize
activities relating to child prostitution and child pornography without
reference to State law or the age of consent.
The two protocols, together with ILO 182, provide a firm foundation
for international action on behalf of children. There is simply no
excuse for children being enslaved, trafficked, exploited in the
commercial sex and drug trade, or abducted into militias for armed
conflict.
No one country can fight this battle alone. Nations must join
together in taking responsibility for improving the plight of children.
Governments and the international community must continue to work
together to prosecute offenders, dismantle the networks of trafficking,
care for the young victims, establish mechanisms to monitor compliance
with these instruments to ensure that children have access to schools,
and enhance international cooperation. The goal of the United States is
that all countries will join this battle and put an end to these
abuses.
Thank you, Madam Chairperson. I will be happy to address any
questions the Committee might have.
______
Responses of Amb. E. Michael Southwick, Deputy Assistant Secretary for
International Organization Affairs, Department of State to Additional
Questions for the Record Submitted by Senator Jesse Helms
Question 1. This horrible practice of conscripting children to
fight wars is occurring in places such as Africa and Asia, and by
mostly non-state groups and militias.
How will United States participation in this agreement halt
the conscription of ``child soldiers'' in those parts of the
world?
How many countries in Africa or Asia, where ``child
soldiers'' are being used, have ratified, or are likely to
ratify, the Child Soldiers Protocol?
Answer. The Children in Armed Conflict Protocol has 100
signatories. As of April 8, 2002, 19 States have ratified the Protocol.
They are: Andorra, Austria, Bangladesh, Bulgaria, Canada, the Czech
Republic, the Democratic Republic of the Congo, the Holy See, Iceland,
Kenya, Mexico, Monaco, New Zealand, Panama, Romania, Spain, Sri Lanka,
and Vietnam. The goal of the United States is that all the countries of
the world will join together and ratify both the Children in Armed
Conflict Protocol and the Sale of Children Protocol. The two protocols,
along with ILO Convention No. 182 on the Worst Forms of Child Labor
form a trio of vital protections for children around the world. In
December 1999, in large part due to the swift action of the Senate
Foreign Relations Committee, the United States became the third state
to ratify ILO Convention No. 182. Subsequently, the United States urged
all the countries of the world to ratify that Convention. Today, ILO
Convention No. 182 has become the most quickly ratified convention in
the history of the ILO with 117 States Parties. We intend to take
similar action with respect to the two protocols if the Senate gives
its advice and consent to ratification.
Question 2. In Article 7 of the Protocol, it states that ``States
Parties shall cooperate in the implementation of the present Protocol,
including in the prevention of any activity contrary to the Protocol
and in the rehabilitation and social reintegration of persons who are
victims of acts contrary to this Protocol, including through technical
cooperation and financial assistance.'' Furthermore, part two of this
article states that ``States Parties in a position to do so shall
provide such assistance through existing multilateral, bilateral or
other programs. . . .'' I read this article to incur a legal obligation
by the United States to provide financial and other assistance to
countries that are plagued by the conscription of child soldiers. Do
you agree, and if so, how much do you think this will cost the U.S.
taxpayer to live up to our obligations under this agreement?
Answer. Article 7(2), like Article 10(4) of the Sale of Children
Protocol, specifies that States Parties ``in a position to do so''
shall provide financial, technical or other assistance through existing
multilateral, bilateral or other programs. This language was
specifically designed to reserve to contributing States the
determination of what specific assistance they might provide under the
Protocol. The Protocol will not create any financial obligation for
U.S. taxpayers since it does not require States Parties to provide a
specific type or amount of assistance.
Article 7 reflects the U.S. commitment to assist in bringing an end
to the tragedy of child soldiers through international cooperation and
assistance among concerned States and relevant international
organization. The United States has contributed substantial resources
to programs aimed at reintegrating child soldiers into society and is
committed to continue to develop rehabilitation approaches that are
effective in addressing this seriously difficult problem. The United
States actively supports activities to assist children affected by war,
including demobilization, rehabilitation and integration into civilian
society. The Children in Armed Conflict Protocol should serve as a
means for encouraging such programs and constitutes an important tool
for increasing assistance to children who are victims of armed
conflict.
Question 3. Article 8 of this Protocol requires States Parties to
provide reports to the Committee on the Rights of the Child on their
implementation under this Protocol, and guarantees the Committee on the
Rights of the Child the right to request additional information from
States Parties. As you know, the United States does not recognize the
Committee on the Rights of the Child. Yet, the rights and obligations
outlined in this article seem to require U.S. recognition of not only
the Committee, but also the legitimacy of it and its activities. Would
you agree?
Answer. At U.S. insistence, both Protocols are independent
multilateral agreements under international law; States may ratify
either Protocol without becoming a party to the Convention or being
subject to its provisions. Our proposed understanding for both
protocols expressly states: ``The United States understands that the
Protocol constitutes an independent multi-lateral treaty, and that the
United States does not assume any obligations under the Convention on
the Rights of the Child by becoming a party to the Protocol.''
As detailed in Article 42 of the Convention on the Rights of the
Child, the Committee on the Rights of the Child consists of ten
``experts of high moral standing and recognized competence in the field
of human rights'' serving in their individual capacities and not as
representatives of governments. The creation of such a body is a
standard procedure; similar bodies were established, for example, by
the International Covenant on Civil and Political Rights, the
Convention on the Elimination of All Forms of Racial Discrimination and
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (all of which have been ratified by the United
States).
As a non-party to the Convention on the Rights of the Child, the
United States has no obligation to comply with the reporting
obligations contained in Article 44 of the Convention on the Rights of
the Child, nor would the Committee on the Rights of the Child be
authorized to request information from the United States on any matter
other than implementation of the Protocols, assuming the United States
becomes a party to the Protocols.
As discussed more fully in the transmittal memorandum, Articles 8
(Children in Armed Conflict Protocol) and 12 (Sale of Children
Protocol) provide that States Parties shall submit, within two years
following the entry into force of each protocol for that State Party, a
report to the Committee on the Rights of the Child providing
comprehensive information on the measures they have taken to implement
the provisions of each protocol. U.S. reporting would be limited to
reporting on the measures the United States has taken to implement the
provisions of the Protocols, consistent with the information provided
in the transmittal package.
The protocols grant the Committee on the Rights of the Child no
authority other than receiving reports and requesting additional
information relevant to the implementation of the protocols. During the
negotiations, States rejected proposals that would have permitted the
Committee, inter alia, to hold hearings, initiate confidential
inquiries, conduct country visits, and transmit findings to the
concerned State Party.
Senator Boxer. Thank you, Mr. Ambassador.
Senator Helms, you wanted to say a word before Mr.
Billingslea speaks?
Senator Helms. Yes, I do. As a matter of personal
privilege, we have guests in the back, and I want a show of
hands. Are you able to understand what the witnesses are
saying? You can hear. If I or anybody else fails to deliver,
will you raise your hand? Because I want you to hear this.
Now, I used to work for Marshall Billingslea.
He was a good boss, and I was sorry to see him go. I was
visiting with the President yesterday, and he said, well, how
are things going down there in the shop? I said, well, you
stole about half of my employees. But we have got some new
ones. But we miss you, Marshall.
And as a father of two little girls one time some years
back--I will not say how many--and five grandchildren who are
little girls, I say that you have got a pleasant, pleasant life
ahead of you. Marshall Billingslea is a fine, young man and I
am honored to see you this morning and I am proud of you
Marshall.
Senator Boxer. Mr. Billingslea, please go right ahead, and
we will remind people you are the Deputy Assistant Secretary
for Negotiations Policy at the Department of Defense.
STATEMENT OF MARSHALL S. BILLINGSLEA, DEPUTY ASSISTANT SECRETARY FOR
NEGOTIATIONS POLICY, DEPARTMENT OF DEFENSE, WASHINGTON, DC
Mr. Billingslea. Thank you, Madam Chairwoman, Senator
Helms. I do not think I could possibly express what an honor it
is for me to appear before my former Committee and my old boss.
It is a deeply personal experience for me, and I appreciate the
opportunity.
Senator Helms, at the outset let me say that we agree in
toto with your opening statement. I see it as my task here
today to provide you with the Department of Defense's
assessment of the Child Soldiers Protocol and with our
assessment of the military implications that that protocol will
have for the United States military.
After reviewing the protocol, the Department of Defense has
decided to support its ratification. We do this based on the
three understandings and the one declaration that were set
forth in the July 25, 2000, transmittal letter to the Senate.
These understandings, together with our interpretation of key
treaty provisions, are fundamental to the Department of
Defense's determination that the treaty, as drafted, will have
no impact on our current recruitment practices and will not
harm the military's ability to accomplish its national security
mission.
The rationale for pursuing the Child Soldiers Protocol has
been clearly articulated by my State Department colleague,
Ambassador Southwick. The protocol makes clear that the
practice of recruiting and using underage soldiers in war is a
morally reprehensible act. The United States, its allies, and
its friends do not recruit or use underage soldiers.
We need to be clear at the outset that we do not view the
Child Soldiers Protocol as a perfect solution to the underage
soldier problem and that, in and of itself, it will not bring
an end to the practice. But the protocol will serve as a moral
and ethical statement by like-minded countries and it will
foster the kind of diplomatic dialog, attention, and pressure
that is needed if we are truly to bring an end to the practice
of recruiting and using underage soldiers.
For this reason, the Department of Defense has agreed with
the decision to pursue Senate advice and consent.
I will now turn to an assessment of the military
implications of the protocol for the United States on our
recruitment policies and on our readiness posture.
In terms of recruitment, our assessment is that
ratification of the Child Soldiers Protocol should have no
impact on U.S. military recruiting efforts. The current U.S.
military practice, which is consistent with existing law, sets
17 already as the minimum age for voluntary recruitment into
the armed services. Absent parental consent, the minimum age
for voluntary recruitment in the United States is 18. For this
reason, we assess that the protocol will not have an effect on
U.S. recruiting practices since it simply obligates states
parties to raise the minimum age for voluntary recruitment to
something above 15 years.
Now, the Department of Defense requires that at least 90
percent of its new recruits have a high school diploma. But
many enlistment contracts are signed with high school seniors
who may be as young as 17, and while waiting for graduation,
these individuals are placed into a delayed entry program. Most
of these folks turn 18 before they graduate from high school
and before they ship off to basic training. Of the nearly
175,000 new enlistees each year that we have, only about
12,000, about 7 percent, are 17 when they ship to basic
training, and nearly all of those will be 18 while they are in
training. In fact, at no time since 1982 has the percentage of
17-year-old recruits into the armed forces exceeded 8 percent.
So, what I will tell you is that we see that qualified 17-year-
olds will remain an integral part of the United States military
recruiting efforts for the foreseeable future, but we do not
expect the numbers to fluctuate significantly or to see 17-
year-olds begin to dominate our recruiting pool. No one under
age 17 is eligible for recruitment, and that includes
participation in the delayed entry program.
For this reason, we see that ratifying the Child Soldiers
Protocol will not affect our ability to recruit 17-year-old
volunteers. The administration recommends, consistent with the
transmittal package to the Senate, that a declaration be
adopted providing inter alia that 17 is the minimum age at
which the United States will permit voluntary recruitment. That
is consistent with U.S. law and current recruiting practices.
The provisions of the Child Soldiers Protocol prohibiting
compulsory recruitment, conscription, below the age of 18 also
are consistent with U.S. law and practice. Although the United
States does not currently employ the draft to fill the ranks of
our armed forces and we do not envision in the future a need to
do so, U.S. law already prohibits compulsory recruitment of
people under the age of 18.
Now, on several occasions we have consulted with senior
Committee staff, and we have been queried about how the United
States is going to implement the protocol in the event of a
major, unforeseen regional or global contingency. It has been
pointed out to us that a number of United States Senators and
Congressmen were 17 when they volunteered to fight in World War
II.
First, I would like to reiterate that the protocol permits
voluntary recruitment of 17-year-olds. So, the United States,
if we ratify the protocol, will continue to have patriotic 17-
year-olds voluntarily enlist with the consent of their parents
to defend the United States in time of need.
Second, we point out that the requirements of the protocol
concerning recruitment are consistent with the practices that
we used during previous national emergencies, such as World
Wars I and II. The Joint Chiefs of Staff have assessed that
ratification of the protocol would not affect their ability to
carry out their national security missions, but if a national
emergency of unforeseen proportions were to arise, we would
evaluate the situation in light of the nature and the scope of
that emergency.
On to readiness. The second question to ask is how will
ratification of the Child Soldiers Protocol affect our military
readiness and the Department of Defense's ability to
successfully accomplish its missions. The short answer, based
on how the United States interprets the treaty--and I am going
to provide you with the interpretation here today--is that it
should not--it should not--affect our readiness, although we
are going to have to make some changes in our military
practices.
Should the United States ratify the Child Soldier Protocol,
Article I of the protocol would require us to ``take all
feasible measures'' to ensure that members of our armed forces
who have not attained the age of 18 do not take a ``direct part
in hostilities.''
As discussed earlier, virtually all 17-year-olds who enter
the United States armed forces are high school seniors and then
placed in the delayed entry program until after they earn their
diploma. When they ship to basic training, only about 12,000
are still 17 years old. On average, basic training lasts from 4
to 6 months, depending on the service, and nearly all of the
17-year-olds going to basic training turn 18 during this
period. It is only after this training is completed that a
servicemember would be considered fully trained and ready for
an operational assignment. In other words, most of our recruits
age-out of the protocol's Article I restriction before being
deployed.
We estimate that of the 12,000 17-year-olds, only about
2,300 in any given year--in other words, less than 0.25 percent
of the total enlisted force--are still 17 by the time they
complete their training, and most of these are going to turn 18
within 1 to 3 months. For fiscal year 2001, there were only
2,263 individuals who were 17 when they reached their
operational base.
For the remainder of time prior to their 18th birthday,
these 17-year-old servicemembers are going to be covered by the
protocol's Article I restriction. However, this should not pose
a problem. The services already have great leeway in how they
assign troops to units and how units are deployed. Further, we
are going to interpret the requirements of Article I in a way
that makes most operational assignments no problem for 17-year-
olds. Consistent with our proposed understanding, we interpret
the phrase ``direct part in hostilities'' to mean 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.
Thus, a fully trained and deployable servicemember can
perform any function in theater for combat units as long as
they themselves are not taking actual action on the battlefield
that is likely to cause harm to the enemy. In other words, we
read the protocol to apply specifically to 17-year-olds
directly engaged in hostile activity on the battlefield. We do
not interpret activities engaged in or by combat support or
combat service support units or functions as falling within the
scope of Article I. This interpretation is consistent with the
overall humanitarian concern the protocol is meant to address;
that is, children being misused by warring factions in various
civil and ethnic conflicts around the globe.
So, in order to implement the protocol, the Department of
Defense is going to focus on when and where 17-year-olds are
deployed. Certainly we do not want the protocol to have a
negative effect on morale and unit cohesion, as you warned in
your opening statement, Senator. Further, we need to be able to
put 17-year-olds in roles where they can make the greatest
contribution to the military, rather than to start placing them
on the basis of their age. By focusing on deployment, as
opposed to how we assign 17-year-olds to units, we will avoid
needlessly complicating our military readiness posture.
I note that we are also obligated by the protocol to take
all measures to prevent 17-year-olds from taking part in
hostilities. I am sorry. Let me clarify that. We are not
obligated to take all measures to stop them from taking part in
hostilities or even a direct part in hostilities. We are
obligated to take all feasible measures.
The word ``feasible'' is significant. Consistent with our
proposed understanding, we interpret this to mean that our U.S.
military commanders are obligated to take ``those measures
which are practical or practically possible taking into account
all circumstances ruling at the time.'' That includes
humanitarian and military considerations. We are not prepared
to adopt an absolute standard. Flexibility and the rule of
reason have got to apply.
Given our presence in many countries around the globe and
the wide range of missions that the military is called upon to
fulfill and the ongoing war against terrorism, we must
recognize that unusual circumstances may arise requiring a 17-
year-old servicemember to take a direct part in hostilities.
For example, a 17-year-old could be part of the peacekeeping
contingent that is unexpectedly fired upon. He may be a
crewmember on a ship that unexpectedly comes under terrorist
attack or which is diverted into an area of operations to
respond to an unforeseen contingency. We cannot be in a
situation where a ship's captain, suddenly called upon to
engage in combat operations, has to cull through the ship's
crew all of the 17-year-olds and either send them home or below
decks. Similarly, we cannot allow a situation to arise, in the
midst of perhaps a crisis such as that which occurred in
Somalia, where the base commander, before sending an extraction
team to help U.S. peacekeepers suddenly under attack, would
have to cull through all of his units to remove 17-year-olds.
We should not put our field commanders in the position of
constantly worrying about being second-guessed. Therefore, the
presumption of the commander in the field should be that the
headquarters unit issuing or authorizing the deployment of the
17-year-old has already taken into account the protocol's
requirements. Concomitantly, we do not foresee changes to the
Uniform Code of Military Justice which would affect field
commanders or lead to them being second-guessed.
Within these parameters, we believe that the effect of the
Child Soldiers Protocol upon our military will be manageable.
Application of the protocol in this fashion, as I said at the
outset, is fundamental to our decision to support ratification.
Finally, there are two other important views that the
Department of Defense takes regarding the protocol.
First, as stated by Ambassador Southwick, and by Chairman
Boxer, although the protocol is styled as a protocol to the
Convention on Rights of the Child, it will by its own terms
operate as an independent multilateral agreement under
international law. States may ratify the protocol without
becoming a party to the Convention on Rights of the Child or
being subject to its provisions. We intend to keep a
``firewall'' between the two treaties, and we are going to work
with our Department of State colleagues to ensure that as
information is provided under Article 8 to the Committee on
Rights of the Child, that the distinction between the two does
not become blurred.
Second, the United States will retain sole responsibility
for ensuring that it adheres to the protocol. Accordingly, no
United States national will ever be subjected to the
jurisdiction of any international tribunal, whether the
International Criminal Court or an ad hoc arrangement, unless
the United States has first explicitly recognized the
jurisdiction of such a tribunal over these matters. As the
administration has made clear, we oppose the International
Criminal Court and we will not allow under any circumstances
the ICC to claim jurisdiction over U.S. nationals.
And finally, I reiterate that we intend to interpret these
key terms such as ``all feasible measures'' and ``direct part
in hostilities'' in a straightforward, common sense fashion as
set out in the administration's transmittal documents.
So, in conclusion, the Department of Defense supports the
administration's decision to proceed with asking for Senate
advice and consent to ratification of the Child Soldiers
Protocol. Utilizing the approach we have identified here, we
think that ratification of the protocol will not have an
adverse impact on our recruiting practices or force structure,
nor would it impair the ability of our armed services to
execute their operational missions.
Thank you.
[The prepared statement of Mr. Billingslea follows:]
Prepared Statement of Marshall S. Billingslea, Deputy Assistant
Secretary of Defense, Department of Defense
INTRODUCTION
Madame Chairman, other Members of the Committee, I appear before
the Senate Committee on Foreign Relations to present the views of the
Department of Defense on the Optional Protocol on the Involvement of
Children in Armed Conflict, otherwise known as the ``Child Soldiers
Protocol.''
After reviewing the Protocol, the Department of Defense has decided
to support its ratification, based upon the three understandings and
one declaration set forth in the July 25, 2000, transmittal letter.
These understandings, and our interpretation of key treaty provisions,
are fundamental to the Department of Defense's determination that the
treaty, as drafted, will have no impact on our current recruitment
practices, and will not harm the military's ability to accomplish its
national security mission.
The rationale for pursuing the Child Soldiers Protocol has been
clearly articulated by my State Department colleague, Ambassador
Southwick. The Protocol makes clear that the practice of recruiting and
using underage soldiers in war is a morally reprehensible act. The
United States, its allies, and its friends do not recruit or use
underage soldiers.
But in many regions of the world, wracked by civil war or
insurgency, it is commonplace to see children bearing arms. In some
cases, this occurs when communities try to defend themselves from
aggression or genocide. In other cases, it is the result of child
conscription, literally at gunpoint, by warring factions. Recruiting
and using underage soldiers--and the social, political, and economic
conditions that give rise to the practice--is deplorable.
We need to be clear, at the outset, that we do not view the Child
Soldiers Protocol as a perfect solution to the underage soldier problem
and that, in and of itself, it will not bring an end to the practice.
But, the Protocol will serve as a moral and ethical statement by
likeminded countries, and will foster the kind of diplomatic dialogue,
attention, and pressure, that is needed to truly bring an end to the
practice of recruiting and using underage soldiers.
For this reason, the Department of Defense has agreed with the
decision to pursue Senate advice and consent. I will turn now to an
assessment of the military implications of that decision on our
recruitment policies and readiness posture.
RECRUITING
U.S. ratification of the Child Soldiers Protocol should have no
impact on U.S. military recruiting efforts. The current U.S. military
practice, which comports with U.S. law (10 USC 505), sets seventeen as
the minimum age for voluntary recruitment, provided parental consent is
obtained. Absent parental consent, the minimum age for voluntary
recruitment in the United States is eighteen. For this reason, the
Protocol will not have an effect on U.S. recruiting practices, since it
simply obligates States parties to raise the minimum age for voluntary
recruitment to an age above 15 years.
The Department requires at least 90% of new recruits to have a high
school degree, but many enlistment contracts are signed with high
school seniors who may be as young as 17. While waiting for graduation,
these individuals are placed in the Delayed Entry Program. Most of
these individuals turn 18 before graduating from high school and
shipping to basic training. Of the nearly 175,000 new enlistees each
year, only about 12,000 (just under 7%) are 17 when they ship to basic
training, and nearly all of those will turn 18 while in training. At no
time since 1982 has the percentage of 17-year-old recruits into the
Armed Forces exceeded 8%. Qualified 17-year-olds will remain an
integral part of the U.S. military's recruiting efforts into the
foreseeable future, but we do not expect their numbers to fluctuate
significantly, or to dominate our recruiting pool. No one under age 17
is eligible for recruitment, including participation in the Delayed
Entry Program.
Ratifying the Child Soldiers Protocol will not affect our ability
to recruit 17-year-old volunteers. The Administration recommends,
consistent with the transmittal package, that a declaration be adopted
providing inter alia that 17 is the minimum age at which the United
States will permit voluntary recruitment. That is consistent with U.S.
law and current recruiting practices.
The provisions of the Child Soldiers Protocol prohibiting
compulsory recruitment of persons below the age of 18 also are
consistent with U.S. law and practice. Although the United States does
not employ the draft to fill the ranks of its Armed Forces (nor do we
envision the need to do so), U.S. law already prohibits compulsory
recruitment of persons under the age of eighteen.
Now, on several occasions as we have consulted with senior
Committee staff, we were queried about how the United States would
implement the Protocol in the event of a major, unforeseen regional or
global contingency. It has been pointed out to us that a number of
United States Senators and Congressmen were 17 when they volunteered to
fight in World War II.
First, I would like to reiterate that the Protocol permits
voluntary recruitment of 17-year-olds. So, should the United States
ratify the Protocol, patriotic 17-year-olds will still be able to
voluntarily enlist (with the consent of their parents) to defend the
United States in time of need, just as many brave 17-year-olds have
done throughout our nation's history. Second, we would point out that
the requirements of the Protocol concerning recruitment are entirely
consistent with U.S. practices during previous major national
emergencies such as World Wars I and II. The Joint Chiefs of Staff have
assessed that ratification of the Protocol would not affect their
ability to carry out their national security missions. But, if a
national emergency of unseen proportions were to arise, we would
evaluate the situation in light of the nature and scope of the
emergency.
READINESS
A second question to ask is how ratification of the Child Soldiers
Protocol would affect our military ``readiness'' and the Department of
Defense's ability to successfully accomplish its mission. The short
answer, based on how the United States interprets the treaty, is that
it should not (although we will have to make some changes in our
practices).
Should the United States ratify the Child Soldiers Protocol,
Article I would require us to ``take all feasible measures'' to ensure
that members of our Armed Forces who have not attained the age of
eighteen do not take ``a direct part in hostilities.''
On a year-to-year basis, this restriction will affect approximately
2,300 17-year-old servicemembers. That is ``drop in the bucket'' in
terms of our total manpower, and the effect will be both negligible and
manageable provided that we interpret the treaty in a common sense
fashion.
As discussed earlier, virtually all 17-year-olds who enter the U.S.
Armed Forces are high school seniors and are placed in the Delayed
Entry Program until after they earn their diploma. When they ship to
basic training, only about 12,000 are still 17 years old. On average,
initial training lasts from 4 to 6 months depending on the Service, and
nearly all of the 17-year-olds turn 18 during this period. Only after
this training is completed will a servicemember be considered fully
trained and ready for his operational assignment.
In other words, most of our recruits ``age out'' of the Protocol's
Article I restriction before being deployed. We estimate that of the
12,000 17-year-olds, only about 2,300 in any given year, or less than
0.25% of the total U.S. enlisted force, are still seventeen by the time
they complete their training--and most of these will turn 18 within one
to three months. For Fiscal Year 2001, there were only 2,263
individuals who were 17 when they reached their operational bases.
For the remainder of time prior to their 18th birthday, these 17-
year-old servicemembers would be covered by the Protocol's Article I
restriction. However, this should not pose a problem. The Services
already have great leeway in how they assign troops to units, and how
units are deployed on operational assignments. Further, we interpret
the requirements of Article I in a way that makes most operational
assignments no problem for 17-year-olds. Consistent with our proposed
understanding, we interpret the phrase ``direct part in hostilities''
to mean ``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.''
Thus fully trained and deployable 17-year-old servicemembers can
perform any function ``in theater'' for combat units as long as they
are not themselves taking actual action on the battlefield that is
likely to cause harm to the enemy. In other words, we read the Protocol
to apply specifically to 17-year-olds directly engaged in hostile
activity on the battlefield. We do not interpret activities engaged in
by combat support (or combat service support) units or the types of
functions such units perform as falling within the scope of Article 1.
This interpretation is consistent with the overall humanitarian concern
the Protocol is meant to address (i.e., children being misused by
waning factions in various civil and ethnic conflicts around the
globe).
In order to implement the Protocol, we will focus on when and where
17-year-olds are deployed. Certainly we do not want the Protocol to
have a negative effect upon morale and unit cohesion. Further, we need
to be able to place 17-year-olds in the roles where they can make the
greatest contribution to the military, rather than placing them on the
basis of their age. By focusing on deployment, as opposed to how l7-
year-olds are assigned to units, we will avoid needlessly complicating
our military readiness posture. I note that we are not obligated by the
Protocol to take ``all measures'' to prevent 17-year-olds from taking
part in hostilities, or even a ``direct'' part. We are obligated to
take ``all feasible measures.''
The word ``feasible'' is significant. Consistent with our proposed
understanding, we interpret this to mean that U.S. military commanders
are obligated to take ``those measures which are practical or
practically possible taking into account all circumstances ruling at
the time, including humanitarian and military considerations.'' We are
not prepared to adopt an absolute standard. Flexibility and the rule of
reason must apply.
This flexibility is precisely why U.S. ratification of the Protocol
would not adversely affect our operations in any theater, including
Operation Enduring Freedom and our ongoing campaign against terrorism.
For example, there are only seven 17-year-olds participating in
Operation Enduring Freedom. They are Sailors. In fact, there are only a
total of 42 17-year-olds serving outside the United States in total.
Four of these servicemembers are in Korea, and we will continue to
retain the ability to deploy 17-year-olds to the Korean Peninsula.
Should the United States ratify the Protocol, these Servicemembers may
perform military duties in support of all U.S. operations anywhere as
long as we take all feasible measures to ensure that they do not take a
direct part in hostilities.
Given our presence in many countries around the globe, the wide
range of missions that the military is called upon to fulfill, and the
ongoing war against terrorism, we must recognize that unusual
circumstances may arise requiring 17-year-old servicemembers to take a
direct part in hostilities. For example, a 17-year-old could be part of
a peacekeeping contingent that is unexpectedly fired upon. He may be a
crewmember on a ship that unexpectedly comes under terrorist attack, or
which is diverted into an area of operations to respond to an
unforeseen contingency. We cannot be in a situation where a ship's
captain, suddenly called upon to engage in combat operations, has to
cull from the ship's crew all 17-year-olds and send them home or below
decks. Similarly, we cannot allow a situation to arise, in the midst of
a crisis such as that which occurred in Somalia, where the base
commander--before sending an extraction team to help U.S. peacekeepers
suddenly under attack--has to cull through units to remove 17-year-
olds.
We should not put our field commanders in the position of
constantly worrying about being ``second-guessed.'' Therefore, the
presumption of the commander in the field should be that the
headquarters unit issuing, or authorizing, the deployment of a 17-year-
old has already taken the Protocol's requirements into account.
Concomitantly, we do not foresee changes to the Uniform Code of
Military Justice which would affect field commanders, or lead to them
being ``second-guessed.''
Within these parameters, we believe the effect of the Child
Soldiers Protocol upon our military capabilities will be manageable.
Application of the Protocol in this fashion, as I said at the outset,
is fundamental to our decision to support ratification.
OTHER ISSUES
Finally, there are two other important views that the Department of
Defense takes regarding the Protocol.
First, as stated by Ambassador Southwick, although the Protocol is
styled as a protocol to the Convention on the Rights of the Child, it
will by its own terms operate as an independent multilateral agreement
under international law. States may ratify the Protocol without
becoming a party to the Convention on the Rights of the Child or being
subject to its provisions. We intend to keep a ``firewall'' between the
two treaties, and will work with our Department of State colleagues to
ensure that--as information is provided under Article 8 to the
Committee on the Rights of the Child--that distinction does not become
blurred.
Similarly, and consistent with the treaty transmittal package, we
recommend that the U.S. make clear the nature of the obligation assumed
under Article 3(1) of the Protocol by expressing an understanding to
the effect that the United States views Article 3 as obligating States
parties to raise the minimum age for voluntary recruitment into their
national armed forces from the current international standard of age
15, as set forth in the Rights of the Child Convention. Because the
United States is not a party to the Convention, we must be clear that
the formulation under Article 3 means ``15,'' and that the
``principles'' and ``special protections'' to which the United States
subscribes are delineated by the Child Soldiers Protocol, not by the
Rights of the Child Convention. Consistent with international law, the
Administration's recommended understanding makes it clear that,
regardless of any future changes to Article 38 of the Rights of the
Child, the obligations contained in Article 3 will remain as I have
stated, unless a specific amendment to the Protocol has been adopted by
the United States.
Second, the United States will retain sole responsibility for
ensuring that it adheres to this Protocol. Accordingly, no United
States national will ever be subjected to the jurisdiction of any
international tribunal, whether the International Criminal Court or an
ad hoc arrangement, unless the United States has first explicitly
recognized the jurisdiction of such a tribunal over these matters. As
the Administration has made clear, it opposes the International
Criminal Court and will not allow, under any circumstances, the ICC to
claim jurisdiction over U.S. nationals.
Finally, I reiterate that the United States intends to interpret
key terms in the treaty, such as ``all feasible measures'' and ``direct
part in hostilities'' in a straightforward, common sense fashion as set
out in the Administration's transmittal documents.
CONCLUSION
In conclusion, the Department of Defense supports the
Administration's decision to proceed with ratification of the Child
Soldiers Protocol. Utilizing the approach we have identified here, U.S.
ratification of the Child Soldiers Protocol would not have an adverse
impact on U.S. recruiting practices or force structure, nor would it
impair the ability of our Armed Forces to execute their operational
missions.
Thank you.
Department of Defense
Selected Manpower Statistics
Fiscal Year 2000
Prepared by Department of Defense, Washington Headquarters Service,
Directorate for Information, Operations and Reports
Accession of 17-Year-Olds into the Armed Forces
The attached excel workbook has the percent of 17-year-olds over
time graphed next to the percent of high school diploma graduates
(HSDGs) over time. The percent of 17-year-olds is graphed on the right
axis; the percent of HSDG is graphed on the left axis. It also has a
column showing the mean age.
The mean age has not changed much over time--it's about 19.6. The
highest mean age was 19.9. Right now, we're at 19.8. It is approaching
it's high point because the Army contracted with a lot of high school
graduates from the work force in FY 2000 and FY 2001. (In FY 2001, the
Army struggled in the hard to fill months of February through May. In
fact, the Army entered these months with almost half of the recruiting
mission left to find. Therefore, they contracted with high school
graduates who were in the work force and available to ship.)
Since we access about 175,000 new people each year, we will
probably enlist about 12,000 17-year-olds each year for the foreseeable
future.
Responses of Marshall S. Billingslea to Additional Questions for the
Record Submitted by Senator Barbara Boxer
Question 1. Concretely, how will deployment procedures for 17-year-
olds under the protocol differ from the procedures that are now in
place?
Answer: The Protocol puts no geographical limits on where 17-year-
old servicemembers may be deployed. Similarly, it does not restrict the
types of units to which 17-year-olds may be assigned. It simply
requires that we take all feasible measures to ensure that
servicemembers under 18 do not take a direct part in hostilities.
Accordingly, should the United States ratify the Protocol, the Services
will promulgate implementation plans, as approved by the Office of the
Secretary of Defense, that both fulfill U.S. commitments under the
Protocol and ensure there is no effect on each Service's military
readiness.
Question 2. What are the steps that the Department of Defense takes
to ensure that the 17-year-old has a real ID and the parental consent
is real?
Answer: The Military Entrance Processing Command (MEPCOM) has
programs that check to ensure that the date of birth entered by a
recruiter falls into the age window outlined by Title 10, MEPCOM
regulations, and other joint regulations. Additionally, each recruiter
is required to obtain an original (or certified) government document
that states an individual's age. Typically, this is an original birth
certificate. If the individual is 17 years old, the recruiter is
required to witness both parents' signatures. If a parent is divorced,
then only one signature is required provided the custodial parent can
produce the original (raised seal) divorce decree.
______
Responses of Marshall S. Billingslea to Additional Questions for the
Record Submitted by Senator Jesse Helms
Question 1. Mr. Billingslea, according to a variety of reports, the
United States had 17-year-old soldiers participating in military
operations during the Gulf War, Somalia, and the Balkans. Under this
protocol, the United States could be held in violation if a 17-year-old
participates in direct combat.
How does the Pentagon propose to prevent such a possibility,
and what plans have the Services made?
Answer. The Protocol does not ban the use of 17-year-olds in
combat. The Protocol's ``all feasible measures'' standard recognizes
that, over time, there are likely to be exceptional cases where, due to
military, humanitarian or other considerations, 17-year-olds may take a
direct part in hostilities. Several delegations made this clear in
their statements made at the time of adoption of the Protocol.
Further, as we have made clear, the Protocol only refers to a 17-
year-old taking a ``direct'' part in hostilities. It therefore is
permissible to assign 17-year-olds to combat units, provided we then
take feasible precautions to ensure that they do not engage in actions,
on a battlefield, which cause direct harm to an enemy combatant.
Finally, in the negotiations, no delegation objected to the U.S.
interpretation of the term ``all feasible measures.'' We recognize the
possibility that certain countries and nongovernmental organizations
may choose to allege U.S. violations of the Protocol since we will
implement our obligations in a manner that does not foreclose the
assignment of 17-year-olds to combat units. However, the Protocol and
the negotiating record make clear that the United States can implement
the Protocol as described above. Furthermore, the Protocol contains no
dispute settlement or other provision that would lead to the United
States being ``held in violation'' of the Protocol.
Accordingly, the Department of Defense will continue to assign 17-
year-olds (once they are fully trained) to combat units and to then
deploy these personnel on a wide variety of operational assignments.
Should the United States ratify the Protocol, the Services will
promulgate implementation plans, as approved by the Secretary of
Defense, that both fulfill U.S. commitments under the Protocol and
ensure there is no adverse effect on each Service's military readiness.
Ouestion 2. If the Military Services have not developed detailed
plans to implement this Protocol, how can we assess whether
implementation of the Protocol is manageable?
Answer. The Protocol will be manageable if it is implemented in the
fashion I described during testimony. The position set forth in my
testimony is that the Department of Defense will implement the Protocol
so that the presumption of the commander in the field will be that the
headquarters unit issuing, or authorizing, the deployment of a 17-year-
old has already taken the Protocol's requirements into account. The
Department of Defense will continue to review the Services'
implementation plans to ensure they best support U.S. military
readiness.
More generally, implementation of the Protocol is manageable
because of the limited number of 17-year-old servicemembers affected by
its provisions. After an average of four to six months of initial
training (depending upon the Service) only about 2,300 servicemembers
are still 17 when they reach their operational bases. That number is
less than one-quarter of one percent of our total enlisted strength.
Most of these 2,300 servicemembers will turn 18 within one to three
months of completing their training and ``age out'' of the Article 1
restriction.
Furthermore, we interpret the requirements of Article 1 in a way
that makes most operational assignments no problem for 17-year-olds.
Consistent with the Administration's proposed understanding, we
interpret the phrase ``direct part in hostilities'' to mean ``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.'' Thus, fully trained and
deployable 17-year-old servicemembers can perform any function in
theater for combat units as long as all feasible efforts are made to
ensure that they do not take a direct part in hostilities, such as
actual action on the battlefield likely to cause harm to the enemy.
Question 3. Mr. Billingslea, barring 17-year-olds from
participation in military operations will mean that they must be pulled
from their units in the event of a deployment.
Have you assessed the impact of such a scenario on unit
morale and readiness?
Answer. Such a scenario could have a harmful effect on morale and
readiness. For this reason, the Department of Defense views
implementation of the Protocol along the lines I have described in my
testimony as essential. The Protocol does not bar 17-year-olds from
participating in military operations or require that they be pulled
from their units in the event of a deployment. It only requires that
Parties ``take all feasible measures to ensure that members of their
armed forces who have not attained the age of 18 years do not take a
direct part in hostilities.'' This is not an absolute standard, but
allows for a flexible implementation of the Protocol's provisions. As I
stated in my response to the previous question, the Department of
Defense will implement the Protocol so that the presumption of the
commander in the field will be that the headquarters unit issuing, or
authorizing, the deployment of a 17-year-old has already taken the
Protocol's requirements into account. Implementing the Protocol in this
manner, together with the small number of 17-year-old servicemembers
affected by its terms, will permit us to comply with the Protocol's
terms without affecting unit morale and readiness. It also will enable
the commander in the field to perform his duties without fear of being
``secondguessed.''
Question 4. Mr. Billingslea, your prepared statement indicates that
the Pentagon doesn't interpret activities by combat support personnel
as falling within the scope of Article 1. Yet not surprisingly, some
authors of the Protocol and Human Rights Groups believe they do.
How will the United States defend itself against allegations
of violating the Protocol?
Answer. The United States takes a backseat to no one in terms of
our military professionalism. We do not use underage combatants, or
engage in any of the morally reprehensible abuses which the Protocol is
intended to address. Indeed, we were a driving force behind the
creation of this document.
The Department of State is best suited to answer for the Committee
how it intends to respond to spurious accusations of noncompliance. We
will work with the Department of State, and will insist that no
international tribunal be allowed to assert or exercise jurisdiction
over U.S. nationals in connection with this Protocol.
Article 1 of the Protocol requires only that Parties take all
feasible measures to ensure that servicemembers under 18 do not take a
direct part in hostilities. This standard does not prohibit 17-year-old
servicemembers from being forward deployed, from taking an indirect
part in hostilities, or even from taking a direct part in hostilities
under extenuating circumstances. The discussion pertaining to Article 1
in the Administration's Article-by-Article Analysis submitted with the
transmittal package makes it clear that U.S. negotiators, together with
those from other countries, repeatedly and successfully rejected
attempts to restrict these options, leaving intact the flexibility the
U.S. military requires. The understandings recommended by the
Administration in the transmittal package adequately describe the U.S.
interpretation of what ``all feasible measures'' and ``a direct part in
hostilities'' entail. The U.S. interpretations of these terms
correspond with the meaning attributed to them under the law of armed
conflict.
Additionally, during the negotiations, the U.S. delegation made a
statement about its understanding of the obligation under Article 1. No
other delegation disputed the U.S. understanding. In fact, some other
delegations expressed disappointment that the Protocol did not bar
``indirect'' participation in hostilities and that the discretionary
power granted to States through use of the term ``feasible measures''
weakened the Protocol. The Russian delegation acknowledged that since
States were not required to prohibit participation, but only called on
to take ``all feasible measures'' to prevent such participation, the
Protocol left States open to the possibility in any emergency of
involving persons under 18 years of age in hostilities.
Question 5. Will the Protocol remain ``manageable'' if the United
States becomes involved in a world war similar to World War II?
Answer. The United States would be able, consistent with the
Protocol, to recruit the servicemembers it would need to defend the
United States, just as it did in World War II. Because the United
States has never needed to draft below the age of 18, we do not view
the Protocol's prohibition on conscription below the age of 18 as
problematic.
Regarding readiness, the Protocol's ``all feasible measures''
standard would allow the United States to have its 17-year-old
servicemembers ``take a direct part in hostilities,'' if, in the
judgement of the United States, there was no other practical option. We
assess, in the event of a world war, that it may not be feasible to
prohibit our 17-year-old servicemembers from engaging in combat.
Question 6. If a unit commander, in the middle of a conflict, fails
to remove a 17-year-old member of his unit from a combat situation, can
the United States be held in violation of the protocol? Is it possible
that the unit commander could be charged under the Uniform Code of
Military Justice?
Answer. We stress that the United States will not recognize the
jurisdiction of any other nation or group over the United States or its
nationals in terms of this Protocol's implementation. Therefore we will
not agree that anyone outside of the United States can ``hold'' us in
violation of the treaty, although other parties have the right to raise
concerns about compliance. That said, the Protocol contains no dispute
settlement, enforcement mechanism, or other provision that would lead
to the United States being compelled to alter its implementation
procedures.
Regarding the unit commander, we do not intend to put our field
commanders in a position where they must worry about being ``second-
guessed'' regarding their decisions to have 17-year-old servicemembers
under their command take a direct part in hostilities when, in their
judgement, the military situation requires it. Accordingly, the
Department of Defense will implement the Protocol so that the
presumption of the commander in the field will be that the headquarters
unit issuing, or authorizing, the deployment of a 17-year-old has
already taken the Protocol's requirements into account. As a result, we
are not going to make any changes to the Uniform Code of Military
Justice. We do not foresee charging unit commanders under the Uniform
Code of Military Justice in order to ``second-guess'' their
determinations regarding any 17-year-old members of their command.
I would also like to reiterate one point I made during my testimony
on 7 March 2002. No United States national will ever be subjected to
the jurisdiction of any international tribunal, whether the
International Criminal Court or an ad hoc arrangement, unless the
United States has first explicitly recognized the jurisdiction of such
a tribunal over the matter. As the Administration has made clear, it
opposes the International Criminal Court and will not allow, under any
circumstances, the ICC to claim jurisdiction over U.S. nationals.
Question 7. Given that under the current practice in the United
States, 17-year-olds must be volunteers, have the consent of their
parents or guardians, and be fully informed of the duties involved with
military service, why shouldn't these young men and women be permitted
to fulfill their duties and serve in combat?
Answer. The Administration has decided that the Protocol offers
important foreign policy benefits, and that its affect on the U.S.
military will be negligible. In light of the fact that the Services
generally require attainment of a high school degree, and in light of
the fact that any prospective soldier, sailor, airman or Marine is
required to go through four to six months of training, the actual
number of 17-year-olds affected by the treaty is fairly small. These
17-year-olds generally have only one to three months left before they
turn 18. Accordingly, we see that our current practices, together with
the Protocol, give the Services sufficient leeway to assign 17-year-
olds, once they are fully trained, to their units and to then deploy
these personnel on a wide variety of operational assignments, so long
as we take ``all feasible measures'' to ensure these personnel do not
take ``a direct part in hostilities.''
Question 8. During the Kosovo war, some liberal human rights groups
attempted to try American pilots for war crimes because of an
accidental bombing of a civilian target. Would you agree that similar
groups might charge the United States with violating this agreement if
a 17-year-old soldier gets caught up in a combat situation?
Answer. It is reasonable to expect some groups to make such
allegations. As indicated under my response to question 4, we will
aggressively respond to any such assertions. We will not be deterred
from using the flexibility afforded by the treaty. The Department of
Defense negotiated very hard to obtain these flexible legal
formulations and our ability to support the Protocol is dependent upon
our ability to interpret the treaty in the fashion I have described.
______
Response of Marshall S. Billingslea to a Follow-up Question for the
Record Submitted by Senator Jesse Helms
Question. Your answers to questions submitted previously do not
address the impact of the Child Soldiers Protocol on the powers of U.S.
state governors insofar as recruitment and employment of state militia
or National Guard units are concerned. How extensively will entry into
force of the Protocol interfere with and curtail these powers?
Answer. Entry into force of the Child Soldiers Protocol would not
interfere with or curtail the powers of state governors with respect to
state militia or National Guard units, both of which are authorized by
federal statute. We note that Article 4 of the Child Soldiers Protocol
requiring States Parties to take all feasible measures to prevent the
recruitment or use in hostilities of persons under the age of 18 years
by ``armed groups that are distinct from the armed forces of a State''
pertains to ``non-governmental armed groups, often involved in non-
international armed conflicts.'' (See the article-by-article analysis
accompanying the treaty, page 6.) U.S. law already prohibits insurgent
activities by non-governmental actors (18 U.S.C. Sec. 2381). We do not
interpret the term ``armed groups'' to refer to state militia or
National Guard units.
Senator Boxer. Thank you, Mr. Billingslea.
We have been joined by Senator Paul Wellstone, who has been
a longtime champion of children's rights, and he is going to
give an opening statement after we conclude our panel.
So, it is my pleasure to call on Mr. John Malcolm, Deputy
Assistant Attorney General at the Justice Department's Criminal
Division. Mr. Malcolm recently headed the U.S. Delegation to
the Second World Congress on Commercial Exploitation of
Children. Welcome.
STATEMENT OF JOHN G. MALCOLM, DEPUTY ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
DC
Mr. Malcolm. Thank you. Madam Chairperson and members of
the Committee, thank you for giving me this opportunity to
testify on behalf of the Criminal Division of the Department of
Justice in support of the Optional Protocol on the Sale of
Children, Child Prostitution, and Child Pornography. The
Department of Justice and the administration supports prompt
ratification of the optional protocol which will serve to
enhance the United States' position as a leader in the fight
against the exploitation and abuse of children worldwide.
Madam Chairperson, as you just stated, this past December,
I had the pleasure and privilege of heading the United States'
Delegation to the Second World Congress on Commercial Sexual
Exploitation of Children in Yokohama, Japan. During that event,
my colleagues and I spoke with many representatives from other
countries and from various non-governmental organizations,
based both here and abroad, including women and children who
had been victims themselves of the cruelest forms of
exploitation. This experience confirmed for me the importance
of ratifying this optional protocol so that we can play our
part in addressing this international tragedy.
In 1999, the Senate ratified the International Labor
Organization Convention No. 182 on the Prohibition and
Immediate Action for the Elimination of the Worst Forms of
Children Labor, which included the sale and use of children in
labor, prostitution, and the production of pornography. This
optional protocol before you today builds upon this important
cornerstone by addressing the sale of children for these and
other purposes, by raising international standards to which all
nations must adhere, including requiring that parties provide
protection to children up to the age of 18, and by requiring
that offenses be treated as criminal acts which merit serious
punishment. In short, along with ILO No. 182, the optional
protocol provides a common language, mission, and strategy to
accomplish our commitment to eradicate child exploitation and
related illicit practices around the world.
I am pleased and proud to say that, with respect to the new
international standards and obligations called for by this
optional protocol, the United States is already an adherent,
subject to the understandings and declarations contained in the
administration's treaty ratification package. No implementing
legislation will be required with respect to ratifying this
optional protocol because U.S. law meets and in many cases
exceeds the standards of the protocol. In the United States,
Federal and State laws uniformly prohibit child prostitution,
all activities associated with child pornography, and the sale
of children for sexual exploitation. United States law
similarly prohibits the sale of children for the purposes of
forced labor or the transfer of organs for profit, as well as
the sale of children via improperly induced adoptions that were
knowingly and willfully done.
Federal and State laws have also long recognized the
special interests and needs of child victims and witnesses and
have provided varying measures of support and protection to
take account of these interests and needs. In addition, since
the time that the article-by-article analysis that accompanies
this protocol was prepared, the United States has taken
additional and important steps that will enhance its ability to
address the core issues at the heart of the protocol. In 2000,
Congress enacted and the President signed into law the Victims
of Trafficking and Violence Protection Act which created
several new crimes of relevance to this protocol and which
provides support services and other forms of relief to victims
of severe forms of trafficking and exploitation, as well as the
Intercountry Adoption Act which establishes oversight,
standards, and accreditation procedures for adoption agencies
for intercountry adoptions.
The protocol also contains important provisions concerning
international cooperation. Our law enforcement agencies already
investigate international trafficking cases with other
countries and engage in global child pornography
investigations. The protocol provides useful cooperation and
assistance mechanisms among nations that are parties to the
protocol, including provisions covering such diverse issues as
extradition, mutual legal assistance, and appropriate asset
confiscation. All of these provisions are comparable to and
consonant with forms of cooperation currently provided for in
various law enforcement agreements to which the United States
is a party. This protocol will enhance our efforts by
encouraging reciprocal efforts by other nations.
The United States is understandably proud of its position
as a world leader in the fight to protect children from severe
forms of exploitation. Ratification of the Optional Protocol on
the Sale of Children, Child Prostitution, and Child Pornography
will better enable the United States and the rest of the world
to fight against those who would deprive children of their
innocence by transferring them to people who have no lawful
right to custody, by subjecting them to extreme forms of labor,
and by subjecting them to the horrors of child prostitution and
child pornography.
Madam Chairperson, that concludes my statement. I would
like to thank you and the Committee again for soliciting the
Department's views on these important issues and for allowing
me to express them today through my testimony here. And I would
be pleased to answer any questions that you might have.
[The prepared statement of Mr. Malcolm follows:]
Prepared Statement of John G. Malcolm, Deputy Assistant Attorney
General, Criminal Division, Department of Justice
Madam Chairperson and Members of the Committee, thank you for
giving me this opportunity to testify on behalf of the Criminal
Division of the Department of Justice in support of the Optional
Protocol on the Sale of Children, Child Prostitution, and Child
Pornography. The Department of Justice supports prompt ratification of
the Optional Protocol, which will serve to enhance the United States'
position as a leader in the fight against the exploitation and abuse of
children worldwide.
This past December, I had the privilege of heading the United
States' Delegation to the Second World Congress on Commercial Sexual
Exploitation of Children in Yokohama, Japan. During the event, my
colleagues and I spoke with many representatives from other countries
and from various non-governmental organizations, based here and abroad,
including women and children who had been victims themselves of the
cruelest forms of exploitation. This experience confirmed for me the
importance of ratifying this Optional Protocol, so that we can play our
part in addressing this international tragedy.
In 1999, the Senate ratified International Labor Organization
Convention No. 182 on the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labor, which included the sale
and use of children in labor, prostitution and the production of
pornography. The Optional Protocol before you today builds upon this
important cornerstone by addressing the sale of children for these and
other purposes, by raising international standards to which all nations
must adhere, including requiring that State Parties provide protection
to children up to the age of 18, and by requiring that offenses be
treated as criminal acts that merit serious punishment. In short, along
with ILO #182, the Optional Protocol provides a common language,
mission, and strategy to accomplish our commitment to eradicate child
exploitation and related illicit practices around the world.
I am pleased and proud to say that, with respect to the new
international standards and obligations called for by this Optional
Protocol, the United States is already an adherent, subject to the
understandings and declaration contained in the Administration's treaty
ratification package. No implementing legislation will be required with
respect to ratifying this Optional Protocol, because current U.S. laws
meet, and in many cases exceed, the standards of the Protocol. In the
United States, federal and state laws uniformly prohibit child
prostitution, all activities associated with child pornography, and the
sale of children for sexual exploitation. United States law similarly
prohibits the sale of children for the purpose of forced labor or for
the transfer of organs for profit, as well as the sale of children via
improperly-induced adoptions that were knowingly and willfully done.
Federal and state laws have also long recognized the special
interests and needs of child victims and witnesses and have provided
varying measures of support and protection to take account of those
interests and needs. In addition, since the time that the Article-by-
Article Analysis that accompanies this Protocol was prepared, the
United States has taken additional and important steps that will
enhance its ability to address the core issues at the heart of the
Protocol. In 2000, Congress enacted the Victims of Trafficking and
Violence Protection Act, which created several new crimes of relevance
to this Protocol and which provides support services and other forms of
relief to victims of severe forms of trafficking and exploitation.
Congress also enacted the Intercountry Adoption Act of 2000, which
establishes oversight, standards, and accreditation procedures for
adoption agencies for intercountry adoptions.
The Protocol also contains important provisions concerning
international cooperation. Our law enforcement agencies already
investigate international trafficking cases with other countries and
engage in global child pornography investigations. The Protocol
provides useful cooperation and assistance mechanisms among nations
that are parties to the Protocol, including provisions covering such
diverse issues as extradition, mutual legal assistance, and appropriate
asset confiscation. All of these provisions are comparable to and
consonant with forms of cooperation currently provided for in various
law enforcement agreements to which the United States is a party. This
Protocol will enhance our efforts by encouraging reciprocal efforts by
other nations.
The United States is understandably proud of its position as a
world leader in the fight to protect children from severe forms of
exploitation. Ratification of the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography will better enable
the United States and the rest of the world to fight against those who
would deprive children of their innocence by transferring them to
people who have no lawful right to custody, by subjecting them to
extreme forms of labor, by subjecting them to the horrors of child
prostitution and child pornography.
Madame Chairperson, that concludes my prepared statement. I would
like to thank you and the Committee again for soliciting the
Department's views on these important issues and for allowing me to
express them through my testimony here today. I would be pleased to
answer any questions that you may have.
______
Responses of John G. Malcolm, Deputy Assistant Attorney General,
Criminal Division, Department of Justice, to Additional Questions for
the Record Submitted by Senator Jesse Helms
Question 1. Mr. Malcolm, during the Kosovo War, some liberal human
rights groups attempted to try American pilots for war crimes because
of an accidental bombing of a civilian target. Would you agree that
similar groups might charge the United States with violating the Child
Soldiers Protocol if a 17-year-old soldiers gets caught up in a combat
situation.?
Answer. The Department of Justice concurs with the response to the
identical question provided by the Department of Defense. The Protocol
does not contain any provision that would permit states to be
``charged'' with ``violating'' the Protocol. Nor does the Protocol
authorize the trial of any person before an international criminal
tribunal for a violation of the Protocol or include any mechanism for
cooperation in prosecution before international tribunals.
Question 2. Mr. Malcolm, in his testimony Mr. Billingslea
emphasized the importance of the word ``feasible'' when stating the
responsibility of commanders to take ``all feasible measures'' to keep
17-year-old soldiers out of combat. I am aware that some proponents of
the Protocol have a different understanding of what is ``feasible.'' If
the United States defines ``feasible'' differently than others, will
the United States be subject to charges that it violated the Protocol
or will an American military commander be open to second-guessing after
the fact.
Answer. The Department of Justice concurs with the response to a
similar question posed to the Department of Defense concerning use of
the term ``feasible.'' The Protocol does not contain any provision that
would permit states to be ``charged'' with ``violating'' the protocol.
Nor does the Protocol authorize the trial of any person before an
international criminal tribunal for a violation of the Protocol or
include any mechanism for cooperation in prosecution before
international tribunals.
Question 3. In Article 7 of the Protocol, it states that ``States
Parties shall cooperate in the implementation of the present Protocol,
including in the prevention of any activity contrary to the Protocol
and in the rehabilitation and social reintegration of persons who are
victims of acts contrary to this Protocol, including through technical
cooperation and financial assistance.'' Furthermore, part two of this
article states that ``States Parties in a position to do so shall
provide such assistance through existing multilateral, bilateral or
other programes. . . .'' I read this article to incur a legal
obligation by the United States to provide financial and other
assistance to countries that are plagued by the conscription of child
soldiers. Do you agree, and if so, how much do you think this will cost
the U.S. taxpayer to live up to our obligations under this agreement?
Answer. We concur with the analysis provided by the Department of
State to the identical question. The Protocol does not create any
financial obligation for U.S. taxpayers since it does not require a
specific type or amount of assistance.
Question 4. Article 8 of this Protocol requires States Parties to
provide reports to the Committee on the Rights of the Child on their
implementation under this Protocol, and guarantees the Committee on the
Rights of the Child the right to request additional information from
States Parties. As you know, the United States does not recognize the
Committee on the Rights of the Child. Yet, the rights and obligations
outlined in this article seem to require U.S. recognition of not only
the Committee, but also the legitimacy of it and its activities. Would
you agree?
Answer. No. We concur with the response provided by the Department
of State to the identical question.
Senator Boxer. Thank you very much, Mr. Malcolm.
Senator Wellstone, you are welcome to make an opening
statement and then we will get to the questions.
Senator Wellstone. Thank you, Madam Chair. This will be
brief I say to both my colleagues. And one of the reasons I
appreciate the opportunity is that I have to be in and out
because we are actually going to have an oversight hearing
today on the trafficking bill this afternoon with Senator
Brownback.
I want to thank Senator Boxer over here, the chair, for her
good work. I am thanking you, Senator Boxer. I want to make
sure you are attentive to my compliment.
And I actually think this is a really exciting day because
the prospect that these protocols will be soon ratified by the
U.S. Senate is just a huge step forward in our world, both to
end the use of children as soldiers and the sexual exploitation
of children.
On the Optional Protocol on the Sale of Children, again I
think this fits in with the human rights legislation that
fights trafficking that we are going to be focusing on this
afternoon, and I would thank all of you for your work.
And on the Child Soldiers Protocol, a couple of things.
Both Michael Southwick and Michael Dennis, who is sitting
there, put an unbelievable effort into this, and you deserve a
tremendous amount of credit for all of your fine work. It is
much, much appreciated.
Really, I am just spending more of my time thanking people.
Jo Becker at Human Rights Watch, Senator Boxer and Senator
Helms, when it comes to the whole question of child soldiers,
has just been there for years now. In the very early days, I
remember she brought by Angelina Atyam. His daughter Charlotte
was abducted by the Lord's Resistance Army in Uganda. She was
14 years of age. She was impregnated by a rebel commander, and
last year she gave birth. The name of the child is God Knows.
She named her child God Knows. She remains in captivity. And I
just think Jo Becker's passionate advocacy on behalf of mothers
and also children has just been unbelievable. I think that is
one of the reasons there has been such domestic and
international support.
I think the only other thing that I would say is that on
the Child Soldiers Protocol, there are a couple of amendments
that I have introduced over the years, one of which passed,
calling on the U.S. Government to take action on this human
rights abuse and to sign the Child Soldiers Protocol. I think
after much struggle, we have signed the protocols. The Bush
administration has signaled its support for ratification, and I
am just very positive about the direction we are going in.
It is good to see you chairing this and it is good to see
Senator Helms here.
Marshall, I remember many of our negotiations as well on
these matters.
So, hey, I am in a good mood here today. This is a great
gathering.
Thank you, everyone.
Senator Boxer. Thank you so much, Senator.
We will be hearing from Jo Becker on our next panel, along
with RADM. Eugene Carroll, Jr. and RADM. Timothy Fanning, Jr.
So, we have one more panel to go.
I only basically have one question for you, Mr.
Billingslea. I appreciated how much effort you put into
answering Senator Helms' point, does this in any way
disadvantage us? I just want to make sure I understand in a
nutshell what you said, and that is that essentially the
protocol is in step with our current policy. There are a few
concerns. You explained that, I thought, very well by giving a
good example. What you said was that the protocol requires you
to take all feasible steps. It does not say do the impossible
or you are going to be held responsible. It says take all
feasible steps, and you interpret that in the following way.
And tell me if I am not saying it right.
That when there is a 17-year-old, he or she would come into
the military with a signed authorization from the parents and
that they would be placed in a situation that would not be a
situation where there was combat. They would not be put into
combat. If they are put on a ship or somewhere and there
suddenly is an attack, you would say you have taken all
feasible measures. You are not going to suddenly put
requirements on the commander to not defend the ship or
wherever this incident occurs.
So, I certainly support that approach because I think that
is what we should be doing.
I have one question. I am working very hard on the anti-
terrorism measures on the home front here dealing with false
ID's. As we know, kids can get false ID's. I am stunned to see,
Senator Helms, how easily these false ID's can be obtained. It
is a stunning thing, and it is very difficult. You need special
machines. Again, this falls under the take all feasible steps.
But is the military very careful, when a 17-year-old comes
forward, to check the ID and also to check the signatures of
the parents? Are we taking those steps normally to ensure that
we are not getting a 15-year-old or a 16-year-old?
Mr. Billingslea. Senator, we have a variety of requirements
that are levied at the recruiting office level to make sure
that the parental consent forms that are being signed are
truthful and accurate. As in all things, you have to just be
vigilant to make sure.
Senator Boxer. I would love to have something in the next
week, what are the steps that the Department of Defense takes
to ensure that the 17-year-old has a real ID and the parental
consent is real.
Mr. Billingslea. May I take that for the record?
[The following answer was subsequently provided.]
The Military Entrance Processing Command (MEPCOM) has programs that
check to ensure that the date of birth entered by a recruiter falls
into the age window outlined by Title 10, MEPCOM regulations, and other
joint regulations. Additionally, each recruiter is required to obtain
an original (or certified) government document that states an
individual's age. Typically, this is an original birth certificate. If
the individual is 17 years old, the recruiter is required to witness
both parents' signatures. If a parent is divorced, then only one
signature is required provided the custodial parent can produce the
original (raised seal) divorce decree.
Senator Boxer. I am interested for many reasons because I
am attacking this issue in a lot of other ways. So, I would be
very interested to see what you are doing. It might be a way to
even beef that up because the new high tech equipment they have
for just swiping a license is remarkable, and it
instantaneously tells you if it is real or not. I do not
believe this is a big problem for our military, but as I say,
it is just of interest.
So, does what I said fit with what you said, that you take
all feasible steps, but you are not going to tie the hands of
someone who has been attacked?
Mr. Billingslea. I think that is right. You used the words
not going to put them in combat. We even have a bit of a
narrower look-in onto that term. The actual phraseology we are
using and what the treaty uses is a ``direct part in
hostilities.''
Senator Boxer. Direct part in hostilities.
Mr. Billingslea. As the understanding that we have supplied
in the transmittal package from 2000 makes clear, we interpret
that to mean literally that we cannot have 17-year-olds taking
an action where there is a direct causal link between the
action they take and harm to the enemy. So, it is very much a
battlefield construct. We do not interpret it as prohibiting
deployment into theater where combat operations may be
occurring, as long as the 17-year-old is not on the battlefield
taking this kind of action.
Senator Boxer. In other words, in a backup type of
situation or administrative support.
Mr. Billingslea. We can even assign them to combat units,
as long as we are not throwing the 17-year-old directly onto
the battlefield where they as the shooter are engaging in
hostilities.
Senator Boxer. So, they do go into a theater where there is
combat, but they do not go into a battlefield.
Mr. Billingslea. That is what the assignment and deployment
process needs to be vigilant about. Now, ``feasible'' is a very
elastic term that we want to resist trying to pin down because
we cannot have a one-size-fits-all kind of situation.
Senator Boxer. But that is what we do today. This is our
policy today. We do not put a 17-year-old into a situation
where he or she is taking part in direct hostilities.
Mr. Billingslea. The way I am trying to frame it up and the
position we are taking on interpreting this is designed to
ensure that we do not really change, in any way that harms our
readiness posture, current practice. We are going to have to
make some changes because this is a new treaty requirement, but
the way we want to make the changes, to cause little or no
impact on readiness, is at a level above the field commander.
That field commander needs to be under the presumption, when he
has got a 17-year-old that is given to him, that the higher-ups
have thought this through and they understand and they have
factored the protocol's legal requirements. So, we are going to
make sure it is done not at a field commander level but higher
up the chain.
Senator Boxer. And my last point is that you are working
with Senators Helms and Biden, it is my understanding, so that
when we do bring this to the floor, which I am hopeful will be
soon, all these questions will be resolved in the language that
goes along with our ratification. Is that your understanding?
Mr. Billingslea. What I would say is that we think that the
understandings and declarations that have already been supplied
in the transmittal package, where President Clinton asked the
Senate to give advice and consent on the basis of these
understandings and to include the understandings and
declarations in the resolution of ratification, ought to do it.
What I have supplied you with in addition is how we interpret
what is behind those words that we have given you in the
transmittal package.
Senator Boxer. I understand. So, if a Senator wanted to
have those as part of our record, we could do that. We could
put that further explanation into the record.
Mr. Billingslea. That is why I am here, is to give you the
interpretation behind the wording. I need to be clear. I am not
here asking for any additional understandings.
Senator Boxer. I appreciate that greatly because that
really helps us. I am just talking about some colloquies. I
know that Senator Helms has some concerns. He is going to talk
in a minute. I believe you have certainly addressed those. So,
just because I am so interested in getting this done, it may be
a colloquy that might be placed into the Congressional Record,
not changing in any way the understandings, the official
agreements, but just some colloquies of understanding that I
hope you will be willing to help us with if we need to do that.
Mr. Billingslea. We are absolutely ready to work with you
in any way.
Senator Boxer. I feel very comfortable with what you said,
and I want to applaud again the administration for really
bringing this over the finish line. Well, it is not quite
there, but bringing it very close to the finish line.
Senator Helms, do you have any questions?
Senator Helms. Yes, ma'am. One.
Mr. Ambassador, are not most of these--what do you call
them--children soldiers enlisted, so to speak, by private
groups? Is that not correct in most of these countries?
Ambassador Southwick. Yes.
Senator Helms. Well, I would be interested in your opinion.
How will this protocol help that situation where the government
is not involved?
Ambassador Southwick. Well, thank you, Senator Helms. I
think that question really strikes at the heart of what this
whole protocol is about because this protocol to a very large
extent is not about what the United States does or what Great
Britain does.
Senator Helms. Right.
Ambassador Southwick. It is what happens in the Sierra
Leones of the world, the Angolas of the world, the Ugandas of
the world. And in those situations, you have what are called
non-state actors who recruit children, and that is what has
been a big phenomenon over the last 10 years, especially in
Africa. This treaty criminalizes the recruitment of children
under 18 for that purpose, and therefore there is some
accountability for this.
I think the main thing that this treaty does is it creates
a standard, which is readily understandable, that 18 is the
breakpoint for these non-state actors. I am not talking about
the United States. I am talking about these armed groups that
you see in developing countries sometimes. And with a clear
standard, replacing what has been kind of murky out there, it
is easy for civil society, governments, the media, NGO's
working in the field to put the spotlight on what those
practices are. As I said in my statement, how effective this is
going to be really depends on what people do with it once it
comes into force.
Senator Helms. You are exactly right. We would hope that
all the countries would have this same kind of First Lady that
Uganda has. You know what she has done in the case of AIDS. She
has cut it, Marshall, in half with a private effort by herself.
She was here a week or 10 days ago, and I had lunch with her.
It is amazing what one person dedicated can do in a country
like that.
In the interest of time, I am going to file some written
questions. But I thank all three of you, for coming, and I
would like to sit down and talk with you sometime, for example.
Mr. Malcolm. I would be delighted, Senator.
Senator Boxer. Thank you, Senator.
I am going to also take the rest of my questions and put
them in the record and hope you will get back to me.
I will ask unanimous consent to place into the record a
document from the Department of Defense that outlines the
active duty 17-year-olds that are in a theater, but not engaged
in hostilities. I believe, Mr. Billingslea, these came from
you.
Mr. Billingslea. Yes, ma'am. We got those to your staff the
other night.
Senator Boxer. It is very helpful. It shows, just for
people to know, a total of 20 17-year-olds in active duty not
engaged in hostilities. In the Republic of Korea, there are
four. In the Balkans/Kuwait, 9, and Enduring Freedom on ships,
there are 7, for a total of 20. So, I place that in the
record.\1\
---------------------------------------------------------------------------
\1\ See Mr. Billingslea's prepared statement on page 33.
---------------------------------------------------------------------------
We really want to thank you all. I must say that I feel, as
Senator Wellstone does, that this is an exciting day. I think
from listening to my friend, Senator Helms, it looks like we
are on our way to moving forward. So, thank you for all your
work.
Senator Helms. Madam Chairman.
Senator Boxer. Yes, please.
Senator Helms. Before we leave this, I feel a little bit on
the spot because I went to the recruiting office on the
afternoon of Pearl Harbor, December 7, 1941.
Senator Boxer. And how old were you?
Senator Helms. I was examined and I passed the examination
with one exception, my hearing. I finally, thanks to a chief
petty officer, got a waiver, but I could not go to sea. But we
were taking 16-year-olds in the United States Navy, and a lot
of them went into combat. So, we may be talking about ourselves
to some extent.
All right. Thank you.
Senator Boxer. Thank you so much.
I say to the first panel, you may stay if you like to hear
the next panel.
I want to now welcome the second panel: Ms. Jo Becker,
Children's Rights Advocacy Director, Human Rights Watch; RADM.
Eugene J. Carroll, Jr., USN, (Ret.), Vice President Emeritus,
Center for Defense Information; and RADM. Timothy O. Fanning,
Jr., USNR, (Ret.), National President of the Navy League of the
United States. We are very honored to have the three of you
here.
Again, I want to say to our first panel, thank you very
much. If you could leave quietly so we could get going because
we are facing a vote.
We are going to start with our second panel. We know that
Senator Wellstone has pointed out your advocacy, Ms. Becker,
over the years. You are the Advocacy Director for the
Children's Rights Division at Human Rights Watch, and you serve
on the Steering Committee of the U.S. Campaign to Stop the Use
of Child Soldiers. From 1998 until 2001, you were the chair of
the Steering Committee for the International Coalition to Stop
the Use of Child Soldiers.
Admiral Gene Carroll serves as Vice President Emeritus of
the nonpartisan Center for Defense Information in Washington.
Admiral Carroll served in the Navy for over 30 years, rising to
the rank of Rear Admiral.
And Admiral Timothy O. Fanning, Jr., is the National
President of the Navy League. The Navy League of the United
States was founded in 1902. It is a civilian organization
dedicated to supporting our naval and maritime forces.
Jo Becker, I want to thank you for being here. I want you
to know that years ago this issue was brought to my attention
by a very young woman in California, and like so many of us--
there are so many issues--we did not have any idea as to the
extent of the use of child soldiers around the world. So, you
have made a tremendous contribution. We welcome you.
STATEMENT OF MS. JO BECKER, CHILDREN'S RIGHTS ADVOCACY
DIRECTOR, HUMAN RIGHTS WATCH, NEW YORK, NY
Ms. Becker. Thank you very much, Madam Chair. It is a real
privilege to be here this morning to address U.S. ratification
of the two protocols to the Convention on the Rights of the
Child.
I was also very gratified to hear the support by the
representatives of the administration this morning for both
protocols and from both yourself and Senator Wellstone and
Senator Helms.
I would also like to just express my appreciation for your
kind words and those of Senator Wellstone.
I would like to speak briefly this morning to the sexual
exploitation and sale of children and then devote the bulk of
my remarks to the issue of child soldiers.
Every year millions of children enter the commercial sex
trade or are trafficked into slave-like practices. The State
Department estimates that every year 50,000 to 100,000 women
and children are trafficked just into the United States. About
half are trafficked into bonded sweatshop labor or domestic
servitude and the rest into the sex industry. The most
vulnerable to these practices include children who are poor,
who are abandoned, orphaned, or displaced from their homes.
Most of these children are girls who are often promised good
jobs, only to find themselves working in brothels or
sweatshops. They often have no control over the nature of their
place or work. They have been deceived about what money they
may receive and are subject to slave-like conditions and
serious physical abuse. They are often held in debt bondage,
raped, and subjected to torture, beatings, and exposure to HIV.
Human Rights Watch has investigated the trafficking of
women and girls from Nepal to India, from Bangladesh to
Pakistan, from Burma to Thailand, and from Thailand to Japan.
In Nepal, we found that it was common for girls to be lured
from remote hill villages and from poor communities by
recruiters who promised them jobs or marriage. Sometimes they
were sold for as little as $4 to brokers who would then, in
turn, sell them to brothels in India for $500 or $1,000, and
this then became an amount of money the girl was forced to work
off. Many of these girls ended up in Bombay where an estimated
20,000 brothel workers are under the age of 18 and half of
these are thought to be infected with HIV.
Children do not need to be trafficked to be exploited
within the sex industry. Poor children living on the streets
may enter the sex trade to earn more money than they can from
other forms of street labor, to finance a drug habit, or simply
to be able to eat. Pimps prey on these children and exploit
their vulnerability for financial gain.
The recruitment of children as soldiers is another
abhorrent abuse against children. As we have heard, there are
currently 300,000 children fighting in more than 30 conflicts
around the world. While this problem may seem very distant to
some, on January 4 of this year, it hit very close to home when
U.S. Army Sergeant Nathan Ross Chapman became the first U.S.
military casualty killed in Afghanistan from hostile fire,
after reportedly being shot by a 14-year-old boy.
Madam Chair, you noted the use of child soldiers in
Afghanistan and we have seen youngsters as young as 12
recruited by the Northern Alliance, and the Taliban has
actively recruited children from madrassas, or religious
schools, in Pakistan.
And in other parts of the world, the ranks of child
soldiers include children as young as 8 recruited into the
paramilitaries in Colombia, teenaged boys taken by force from
their villages in Burma to serve in the national army, and
young girls who are kidnaped by the Lord's Resistance Army,
like Charlotte, the young girl that Senator Wellstone
described.
I would like to note, in response to Senator Helms'
question about who is responsible for the use of these
children, that it is true that the most notorious cases that we
see in the media and on the news are those of the Revolutionary
United Front recruiting children in Sierra Leone or the Lord's
Resistance Army or the infamous twins from one of the ethnic
groups in Thailand. But in fact, a significant number of child
soldiers recruited around the world are recruited by government
armed forces. In fact, our belief is that the Government of
Burma is itself the single largest user of child soldiers in
the world and probably has upwards of 50,000 children in its
own army. We have also seen children recruited by the
Government of Ethiopia in its war against Eritrea, and Human
Rights Watch has recently documented the complicity of the
Governments of Uganda and Rwanda in recruiting children that
fight in conflict in the DRC.
Ishmael Beth is a former child soldier from Sierra Leone
who had hoped to be here to testify this morning. He was
recruited when he was 13 years old. And I would like to just
share one recollection from him. He said, ``I vividly remember
the very first day that I was in combat. I was recruited with
the kids that were 8 years old, 9 years old. They were so small
some of them couldn't even carry the AK-47's they were given so
they had to drag it. I was in an ambush and bullets were flying
back and forth, people were shooting. I didn't want to pull the
trigger at all but when you watch kids being shot and killed
and dying and crying and their blood spilling all over your
face you just move beyond, something just pushed you and you
start to pull the trigger.''
Ishmael was one of the lucky ones. After 3 years in the
war, he was placed into a rehabilitation program where he
received counseling and was assisted to go back to school. He
is currently studying at a college in Ohio. But for many other
children, the future is desperately bleak. They have been
robbed of their childhood, of their education. They have
witnessed and participated in horrific violence, and it is hard
to imagine how they may ever become productive members of
civilian society.
As international attention to these horrific abuses against
children has grown, so has international action. We have heard
about the ILO Convention 182 which defined the forced
recruitment of children for use in armed conflict as one of the
worst forms of child labor. There have been other actions taken
by the Security Council and by regional organizations, but of
most significance is the adoption of the Optional Protocol on
Children in Armed Conflict.
There are many reasons why the United States should ratify
this protocol, and I want to conclude by just focusing on five.
First of all, the protocol has already made a difference.
It is true that international treaties are not always
respected, but already we have seen results from the protocol
and the increased attention to this issue. Even before the
negotiations on the protocol were complete, some countries
began to change their practices. Colombia which, as recently as
3 years ago, had more than 15,000 children in its national
armed forces, began to demobilize and currently has no children
under the age of 18. In June of 2000, President Kabila of the
Democratic Republic of Congo issued a decree calling for the
demobilization of children from his army and is now cooperating
with UNICEF to make that happen. And other countries such as
Portugal, South Africa, and Italy have adopted legislation to
raise the age of recruitment into their armed forces.
Second, we have also seen that the protocol can, in fact,
influence non-governmental forces. In the last 2 years, we have
seen large scale demobilization of children, even from some
rebel groups. Last February, over 2,500 children between the
ages of 13 and 18 were demobilized from the Sudan People's
Liberation Army in southern Sudan. From May to November of last
year, over 1,500 children were demobilized from the
Revolutionary United Front in Sierra Leone. In these and in
other cases, we have seen that non-state forces can be
persuaded that complying with international standards can
enhance their own credibility.
My third point is that the protocol has the support of the
American public. In 1999, there was an opinion poll that asked
Americans at what age is a person mature enough to be a
combatant, and 93 percent of Americans responded that
combatants should be at least 18. There is a broad range of
non-governmental organizations in this country that strongly
support the protocol, including the American Bar Association,
the American Academy of Pediatrics, Children's Defense Fund,
National Council of Churches, and the Vietnam Veterans of
America Foundation.
Fourth, I want to point out that U.S. support for the Child
Soldiers Protocol can also protect U.S. soldiers. Army Sergeant
Chapman, who I referred to before, was not the first U.S.
soldier to encounter a child soldier in a combat situation.
Many U.S. soldiers faced armed children during the Vietnam War
and had to make the choice, Madam Chair, that you referred to
about whether or not to defend themselves or possibly take the
life of a child. Children are often used as soldiers because
they are more easily able to approach enemy forces without
suspicion and are often more willing to undertake dangerous
missions than their adult counterparts. And as a result, U.S.
soldiers may be at increased risk in conflicts where children
are being used.
And then finally, the need for U.S. leadership. The
importance of U.S. leadership on this issue cannot be
underestimated. By ratifying the optional protocol, the United
States will be in a very strong position to use its
considerable political and military influence to discourage the
use of children as soldiers by other governments and armed
groups. In addition, ratification will complement the
substantial humanitarian assistance that the United States
devotes to assist children affected by war.
The use of children as soldiers and the sale or sexual
exploitation of children offends every American's sense of
decency. By ratifying these optional protocols, the United
States can provide critical support to global efforts to
protect children from devastating exploitation.
Thank you very much for the opportunity to share this
testimony with you.
[The prepared statement of Ms. Becker follows:]
Prepared Statement of Jo Becker, Advocacy Director, Children's Rights
Division, Human Rights Watch
Madam Chair and members of the Committee:
Good morning. My name is Jo Becker, and I am the advocacy director
for the Children's Rights Division of Human Rights Watch. I also serve
on the steering Committee of the U.S. Campaign to Stop the Use of Child
Soldiers, and from 1998 until 2001, was the chair of the steering
Committee for the international Coalition to Stop the Use of Child
Soldiers.
It's a privilege to speak on behalf of United States ratification
of the Optional Protocols on the sale of children, child prostitution
and child pornography and on the involvement of children in armed
conflict. I'd like to speak briefly to the sexual exploitation and sale
of children, and then devote the bulk of my remarks to the issue of
child soldiers.
Every year, millions of children enter the commercial sex trade or
are trafficked into slave-like labor practices. The State Department
estimates that every year, 50,000-100,000 women and children are
trafficked just into the United States. About half are trafficked into
bonded sweatshop labor or domestic servitude, and another half are
trafficked into the sex industry. The most vulnerable to these
practices include children who are poor, abandoned, orphaned or
displaced from their homes. Mostly girls, these children are often
promised good jobs, only to find themselves working in brothels or
sweatshops. They often have no control over the nature or place of
work, have been deceived about what money they may receive, and are
subject to slave-like conditions and serious physical abuse. They are
often held in debt bondage, raped, and subjected to torture, beatings
and exposure to AIDS.
Human Rights Watch has investigated the trafficking of women and
girls from Nepal to India, from Bangladesh to Pakistan, from Burma to
Thailand, and from Thailand to Japan. In Nepal, we found that girls are
frequently lured from remote hill villages and poor communities by
recruiters, relatives or neighbors who promise jobs or marriage.
Sometimes they are sold for as little as $4 to brokers, who then sell
them to brothels in India for $500 or $1000, an amount the girl is then
forced to work off. Many of these girls end up in Bombay, where an
estimated 20,000 brothel workers are thought to be under the age of 18.
Half of these are thought to be infected with HIV.
Children do not need to be trafficked to be exploited within the
sex industry. Poor children living on the streets may enter the sex
trade to try to earn more money than they can from other forms of
street labor, to finance a drug habit, or simply to be able to eat.
Pimps prey on these children, and exploit their vulnerability for
financial gain.
The Optional Protocol builds on other standards by obliging
governments to take tangible steps to ensure that adults involved in
the exploitation of children are punished, to prevent the sale of
children, child prostitution and pornography, to protect particularly
vulnerable groups and to protect the rights of child victims. To date,
92 governments have signed, and 18 have ratified the protocol.
The recruitment and use of children as soldiers is another
abhorrent abuse against children. Approximately 300,000 children have
been recruited to fight in armed conflicts in over 30 countries around
the globe. While this problem may seem very distant to some, on January
4th, it hit very close to home when U.S. Army Sgt. Nathan Ross Chapman
became the first U.S. military casualty in Afghanistan from hostile
fire after reportedly being shot by a 14-year-old boy.
In Afghanistan, two generations of children have been subject to
recruitment, first into the resistance to Soviet forces, and then into
various warring factions. As part of the most recent conflict, the
Northern Alliance recruited children as young as age eleven, and the
Taliban commonly recruited children from madrassas (religious schools)
in Pakistan.
Around the world, the ranks of child soldiers include children as
young as eight recruited into paramilitaries in Colombia, teenaged boys
forcibly taken from their villages in Burma to serve in the national
army, and young girls who are kidnapped by the Lord's Resistance Army
in Northern Uganda for use as soldiers and sex slaves.
Some child soldiers are recruited by force and compelled to follow
orders under threat of death. Others, their lives devastated by poverty
or war, join armed groups out of desperation. As society breaks down
during conflict, children are left with no access to school, often
driven from their homes or separated from their families. Many perceive
armed groups as their best chance for survival.
Child soldiers often start out as porters, cooks or messengers, but
frequently end up on the front line of combat. Considered
``dispensable,'' they may be pushed into the most hazardous roles--
going into mineflelds ahead of older troops, or being used for suicide
missions. Some are forced to commit atrocities against their family or
neighbors, in order to sever the child's ties with their community and
ensure that they are not able to return home.
Ishmael Beth is a former child soldier from Sierra Leone that hoped
to testify here today. He was recruited when he was 13 years old. He
says, ``I vividly remember the very first day that I was in combat . .
. I was recruited with the kids that were eight years old, nine years
old. They were so small some of them couldn't even carry the AK-47's
that were given to us so they had to drag it. I was in an ambush and
bullets were flying back and forth, people were shooting. I didn't want
to pull the trigger at all but when you watch kids . . . being shot and
killed and . . . dying and crying and their blood was spilling all over
your face you just moved beyond, something just pushed you and you
start pulling the trigger.''
Ishmael was one of the lucky ones. After three years in the war, he
was placed into a rehabilitation program where he received counseling
and was assisted to go back to school. He's now studying at a college
in Ohio. But for many other children, the future is desperately bleak.
Denied their childhood and education, and having witnessed and
participated in horrific violence, it's hard to imagine how these
children can ever become productive members of civilian society.
Human Rights Watch has directly documented the use of child
soldiers in Angola, Burundi, Colombia, the Democratic Republic of
Congo, Liberia, Rwanda, Sierra Leone, Sudan, and Uganda. These are
brief snapshots of some of our findings:
In the Democratic Republic of Congo, thousands of children have
been recruited into the war, often abducted from schools, roadsides,
markets and their homes. Rwandan-backed rebel forces have forced
unarmed children into battle as decoys. These children were ordered to
make noise and beat on trees with sticks in order to draw government
fire away from the more experienced, armed troops. The reported result
was that they were ``killed like flies.''
In Uganda, the Lord's Resistance Army has abducted more than 10,000
children from Northern Uganda over the last decade. Children are forced
to fight, and often compelled to help beat or hack to death fellow
child captives that have attempted to escape. Girls are given as
``wives'' to rebel commanders.
In Colombia, up to 10,000 members of guerrilla forces and army-
backed paramilitaries are under age eighteen. The guerrilla use
children to collect intelligence, make and deploy mines, and serve as
advance troops in ambush attacks, while paramilitaries force families
to provide children for service or risk being killed as suspected
guerrilla sympathizers.
In Burundi, hundreds of children as young as seven have been
recruited into government-linked paramilitaries. They are subjected to
harsh conditions and some have died as a result of beatings by older
soldiers. Many others died in combat after being sent into battle ahead
of regular troops.
In Sierra Leone, thousands of children abducted by rebel forces
witnessed and participated in horrible atrocities, including
beheadings, amputations, rape and burning people alive. Children forced
to take part in atrocities were often given drugs to overcome their
fear or reluctance to fight.
As international attention to these horrific abuses against
children has grown, so has international action. In 1999, the
International Labor Organization recognized the forced recruitment of
children as soldiers for use in armed conflict as one of the worst
forms of child labor. Over the last three years, the use of child
soldiers has become a regular part of the UN Security Council's agenda.
And increasingly, regional and other bodies have adopted resolutions on
child soldiers, including the Organization of American States,
Organization of African Unity, the European Parliament, and the
Organization for Security and Cooperation in Europe.
Most significant of these milestones is the adoption of the
Optional Protocol on children and armed conflict. It is the first
international treaty prohibiting the forced recruitment or
participation of children under the age of eighteen in armed conflict.
It represents a new global consensus that children should not be used
as instruments of war. Since its adoption by the UN, it has been signed
by 99 governments, and ratified by 16. Human Rights Watch was pleased
that the United States was one of the first countries to sign the
treaty, on July 5, 2000, and believes that ratification should take
place as soon as possible.
Under the protocol, governments must take all feasible measures to
ensure that members of their armed forces that are under the age of
eighteen do not take a direct part in hostilities, and are prohibited
from conscripting or compulsorily recruiting any persons under the age
of eighteen. Rebel or other non-governmental armed groups are
prohibited from recruiting under-18s or using them in hostilities.
Governments are required to criminalize such practices and take other
measures to prevent the recruitment and use of children by such groups.
Governments are also required to raise their minimum age for voluntary
recruitment beyond the current minimum of fifteen, and must deposit a
binding declaration stating the minimum age they will respect. (In
practice, this means the minimum age for voluntary recruitment must be
at least sixteen.) Those governments accepting volunteers under the age
of eighteen must maintain a series of safeguards, including parental
consent, and proof of age. Parties also must offer assistance for the
rehabilitation and reintegration of former child soldiers.
There are many reasons why the United States should ratify the
protocol. I'll focus on six:
(1) The protocol has already made a difference. International
treaties aren't always respected. But we've already seen
results from the protocol and increased international attention
to child recruitment. Even before the protocol was finalized,
some countries began to change their practices. In Colombia,
thousands of children were demobilized from the Colombian armed
forces. In June of 2000, President Kabila of the Democratic
Republic of Congo issued a decree calling for the
demobilization of child soldiers from the Congolese army, and
is cooperating with UNICEF to put rehabilitation programs into
place. Other countries, such as Portugal, South Africa and
Italy, have adopted legislation to raise the age of recruitment
into their armed forces.
(2) The protocol can influence non-governmental forces. In
the last two years, we've seen large-scale demobilizations of
children even from rebel forces, Last February, over 2500
children between the age of thirteen and eighteen were
demobilized from the Sudan People's Liberation Army. From May
to November over 1500 children were demobilized from the
Revolutionary United Front in Sierra Leone. In these and other
cases, non-state forces can be persuaded to comply with
international standards to enhance their own credibility.
(3) The protocol has the support of the American public. A
1999 public opinion poll conducted for the Red Cross asked
Americans ``At what age is a person mature enough to be a
combatant?'' 93% of the U.S. public responded that combatants
should be at least 18. A broad range of non-governmental
organizations also support the protocol, including the American
Bar Association, American Academy of Pediatrics, Children's
Defense Fund, National Council of Churches, Save the Children
and Vietnam Veterans of America Foundation.
(4) U.S. support for an international ban on the use of child
soldiers can help protect U.S. soldiers. Army Sgt. Chapman was
not the first U.S. soldier to encounter a child soldier in a
combat situation. Many U.S. soldiers faced armed children
during the Vietnam war and had to make a choice whether to
defend themselves or possibly take the life of a child.
Children are often used as soldiers because they may be more
easily able to approach enemy forces without suspicion and are
more willing to undertake dangerous missions than their adult
counterparts. As a result, U.S. soldiers may be at increased
risk in conflicts where children are used.
(5) U.S. recruitment and operations will not be significantly
affected. Under the protocol, the United States must take all
feasible measures to ensure that members of its armed forces
that are below age 18 do not participate directly in
hostilities. Because of the small number of 17-year-olds on
active duty, this provision affects an extremely small number
of U.S. troops. The Defense Department reported to Human Rights
Watch that of those enlisted troops who have completed both
their basic and technical training and been assigned to units,
99.76% are age eighteen or older. Those that remain can be
reassigned for the short period of time before they turn
eighteen.
(6) The need for U.S. leadership. The importance of U.S.
leadership by example on this issue should not be
underestimated. By ratifying the Optional Protocol, the U.S.
will be in a strong position to use its considerable political
and military influence to discourage the use of children as
soldiers by other governments and armed groups. Ratification
will also complement the substantial humanitarian assistance
the United States devotes to assist children affected by war.
Human Rights Watch takes the position that no child should be
recruited--whether forcibly or voluntarily--before the age of eighteen.
We believe this is the best way to ensure that children are not exposed
to combat or the risk of attack. However, the protocol sets a lower
standard, in part because significant compromises were made during the
negotiation of the protocol to accommodate the United States and other
countries that accept voluntary recruits before the age of eighteen. An
additional concession was made solely for the United States to enable
it to ratify the optional protocols as stand-alone agreements without
having ratified the Convention on the Rights of the Child. In light of
these concessions, we strongly urge this Committee to recommend the
protocol to the full Senate with no reservations.
The use of children as soldiers and the sale or sexual exploitation
of children offends every American's sense of decency. By ratifying
these Optional Protocols, the United States can provide critical
support to global efforts to protect children from devastating
exploitation.
Thank you for the opportunity to share this testimony with you
today.
______
Responses of Ms. Jo Becker to Additional Questions for the Record
Submitted by Senator Jesse Helms
Question. How will United States participation in this agreement
halt the conscription of ``child soldiers'' when this horrible practice
is occurring in places such as Africa and Asia and by mostly non-state
groups and militias?
Answer. Because of the United States' international position of
leadership, its ratification of the protocol will lend considerable
weight to the new international standard that has been established.
Once it ratifies the protocol, the U.S. will also be able to bring its
significant diplomatic and military influence to bear on other
governments and armed groups around the world, in order to influence
theft recruiting and deployment practices.
Although the popular conception is that the use of child soldiers
is primarily a problem of non-state groups, large numbers of child
soldiers are also used by national governments. For example, the
government of Burma utilizes more children in its national armed forces
than any other country in the world. However, even non-state armed
forces can be influenced by international law. I have personally spoken
with representatives of opposition armies that have expressed interest
in voluntary compliance with the optional protocol as a way of
enhancing their international credibility.
Question. What is your view of the ``understandings'' that the
Defense Department wants placed in the resolution of ratification? Do
these make sense, or will they be criticized by you and other Protocol
proponents?
Answer. Regarding the understandings related to the Convention on
the Rights of the Child stating that the U.S. assumes no obligation to
the CRC by becoming party to the Protocol: Human Rights Watch supports
U.S. ratification of the Convention, and urges the U.S. to ratify the
Convention in the future. However, given the current circumstances, the
understandings are reasonable.
Regarding the understanding with respect to Article 1: In
interpreting Article 1, it is important to recall the principal purpose
of the Optional Protocol, which is to minimize the harm suffered by
children (individuals under 18) involved in armed conflict.
Understandings can have the effect of enhancing or restricting legal
instruments in their application. We would hope that particularly when
dealing with the protection of children, the United States will adopt
understandings to enhance the protection of children. We would be
concerned regarding any understanding that would have the effect of
restricting these protections.
It is also important to remember that the protocol was negotiated
over a long period, during which the United States was actively
involved and had ample opportunity to put forward its views. Indeed, in
several key respects, compromises were made to restrict the scope of
the protocol due to concerns of the United States. In this light,
further restrictions should not be necessary.
I have two specific points related to the understanding on Article
1: First, the protocol calls on states to take ``all feasible
measures'' to ensure that members of the armed forces who have not
attained the age of 18 years do not take a direct part in hostilities.
``All feasible measures'' implies that in some circumstances,
exceptions can be made and a degree of discretion is given to the state
party. However, given the object and purpose of this protocol, we would
expect the United States to apply exceptions with the utmost restraint.
Applying the interpretation of measures that ``are practical or
practically possible'' may be too ambiguous and does not seem to be
helpful or necessary.
Second, ``direct part in hostilities'' implies a sufficient causal
relationship between the act of participation and its immediate
consequences. However, ``gathering and transmitting military
information'' or ``transporting weapons, munitions and other supplies''
may meet this criterion if these activities are directly related to the
conduct of hostilities, and/or occur on the battlefield. There is a
direct link between a member of the armed forces who transports
ammunition to the front line or who pinpoints targets for attack and
the harm caused to enemy forces.
Finally, I'd like to point out that given the extremely small
number of 17-year-olds on active duty in the U.S. armed forces and
deployed abroad, the U.S. should be able to apply rigorous measures to
preclude their participation in hostilities.
Question. What is your understanding of U.S. military recruiting
and deployment policies? Are they consistent with the letter and spirit
of the Protocol?
Answer. I understand current law and policy to allow the voluntary
enlistment of individuals into the armed forces beginning at age
seventeen. Those enlisting before the age of eighteen are required to
have the written permission of their parents or guardians. In the event
of a draft, U.S. law allows the conscription of individuals beginning
at age eighteen. These provisions are both consistent with the letter
and spirit of the protocol.
I understand current U.S. deployment policies to allow the
assignment of troops to units, including combat units, on the
completion of their training. These units may then be deployed to a
theater of combat. In the past, 17-year-old U.S. troops have been among
those service members who have participated in operations in Bosnia,
Somalia and the Gulf War. Although I do not have the details regarding
the specifics of these 17-year-olds' assignments, this past practice
raises questions with respect to the protocol. Under the protocol, the
U.S. will be required to take all feasible measures to ensure that
members of the armed forces who have not achieved the age of 18 years
do not take a direct part in hostilities.
Question. Does the United States incur a financial obligation upon
ratification of this Protocol, as well as give legal recognition to the
Convention on the Rights of the Child?
Answer. I do not believe that the United States will incur any
financial obligations from ratifying the protocol, and it will not have
any legal obligations under the Convention on the Rights of the Child.
Question. A United Nations report on Child Soldiers, the
preparation of which was assisted by Amnesty International, makes the
following allegations against the United States:
(1) Recruiters with the Deployed Entry Program (DEP) often harass,
intimidate and threaten young people to enlist and/or keep their DEP
commitment. They cite a 1999 investigation by an Atlanta TV station for
this evidence. (According to DOD statistics, in 1998 between 11 and 19
percent of DEP enlistees ask to be released.)
(2) Girls are vulnerable to sexual harassment by recruiters. In
1999, a Washington state school district banned recruitment in schools
after allegations of sexual harassment by recruiters.
(3) The report is extremely critical of military training programs
and schools. They cite the Young Marines program (with participations
as young as 8 years old) and JROTC. JROTC, although not an official
recruiting tool, is accused by this report of engaging in this activity
as well as promoting violence in schools. Furthermore, JROTC is
criticized for its disproportionate number of minority participants and
programs in poor schools.
Why should the United States sign up to a protocol whose chief
sponsors and proponents make these misleading charges about our
country, and attempt to make a comparison or link between the
recruiting policies of countries such as the U.S., Canada and Britain,
and the forced conscription of 8- and 10-year-olds in Africa and East
Asia?
Answer. The report referenced is the Child Soldiers Global Report,
published by the Coalition to Stop the Use of Child Soldiers in June
2001. It surveyed the recruitment laws and practices of 180 countries
around the world. By including the United States and other Western
countries in this global survey, I do not believe that the Coalition
intended to compare U.S. practices to the forced conscription of 8- and
10-year-olds.
The Coalition report did not only survey the practices governed by
the protocol, but also sought to provide information on the context for
military recruitment, including military schools and other programs
such as JROTC. Members of the Coalition believe the information
provided about such programs in the United States is accurate. The
information about recruiter harassment, including sexual harassment,
was also based on credible sources and should be of concern to all
parties, regardless of their position regarding the protocol.
Question. The authors of this Protocol, as well as the United
Nations, understand the Protocol to read that 17-year-old soldiers
functioning in a support role in a combat zone, such as driving a truck
transporting supplies to the front, are ``participating in
hostilities.'' I am aware that the Pentagon has a different
interpretation of this Article of the Protocol, but if the rest of the
world reads it this way, then it is quite possible that the U.S. will
be charged with violating the Protocol, and that U.S. commanders will
be held responsible. Would you agree?
Answer. Support roles such as cooking at an army camp, or carrying
out certain administrative duties would not be considered direct
participation in hostilities. However, as stated above, a soldier
delivering ammunition to the front lines could be considered to be a
direct participant in hostilities, if there was a sufficient causal
relationship between the act of participation and its immediate
consequences. For example, if a 17-year-old is ordered to deliver
munitions to a unit that has exhausted its supplies and is dependent on
additional weaponry or ammunition in order to continue carrying out
hostilities, a direct causal relationship could be argued. However,
much more would need to be known about the specifics of a particular
case before being able to say whether or not the protocol was being
violated.
Question. The UN and proponents of this Protocol, such as Amnesty
International, contend that any 17-year-old soldier deployed to a
combat zone, regardless of whether he or she is in a combat unit, or in
the front or rear, would constitute a violation of the Protocol. They
argue that the Geneva Convention and its additional protocols define
combatants, under international law, as members of a nation's armed
forces. And as such, they can lawfully kill or be killed. Therefore,
putting a minor in a situation in which they can be lawfully killed--
even if they are not in a situation where they will likely to be
engaged in combat--would constitute a violation of the Protocol. What
are your thoughts on this matter?
Answer. There are two important issues here: First, the definition
of a combatant, and secondly, the requirements of the protocol.
Regarding the first issue, in principle, during armed conflict, any
member of the armed forces is a legitimate target of attack. Since the
protocol allows 17-year-olds to serve in the armed forces, they are
therefore vulnerable to attack, even if they are simply in their
barracks. Therefore, there may be situations in which a minor being
killed as a result of an enemy attack does not automatically constitute
a violation of the protocol.
However, as stated earlier, the spirit and purpose of the protocol
is to increase the protection of children from involvement in armed
conflict. To be consistent with the spirit of the protocol, measures
should be taken to avoid placing under-age soldiers in combat areas
where they may face increased risks of attack, and as discussed
previously, they should not be directly involved in hostilities.
Question. Based on the views of some human rights groups have
written, a 17-year-old in uniform constitutes a legitimate target (a
combatant). And because under the Geneva Convention combatants can be
legally killed, the U.S. would be in violation of the Protocol for
placing a 17-year-old in such a situation. Should, therefore, there be
an understanding that the U.S. is not in violation of the Protocol if
17-year-olds are physically in a theater of operations or war zone and
killed or banned by the enemy not as a result of ``direct combat''?
Answer. See previous answer. An understanding of this type is not
necessary.
Senator Boxer. Thank you so much.
And now we will hear from RADM. Eugene Carroll, who served
in the Navy for over 30 years, rising to the rank of Rear
Admiral. We are very happy you are with us, Admiral Carroll.
STATEMENT OF RADM. EUGENE J. CARROLL, JR., USN (RET.), VICE
PRESIDENT EMERITUS, CENTER FOR DEFENSE INFORMATION, WASHINGTON,
DC
Mr. Carroll. Thank you, Madam Chairman. It is an honor to
be here to address the Committee today on this very sensitive
issue of child soldiers.
Because you have already heard excellent comments about the
legal, moral, and political implications of the Child Soldier
Protocol, I would like to confine my brief remarks to a very
single pragmatic issue. Will implementation of the Child
Soldiers Protocol in any way degrade the combat readiness and
military effectiveness of the United States armed services?
I claim some special insight into this problem because for
2\1/2\ years I directed the Navy's military manpower
requirements programs and personnel plans and policies
immediately after President Nixon had ended the draft. I can
assure you at that time the services were all in desperate
straits trying to maintain military readiness and
effectiveness. Considering that now we have about 1,400,000--
then we were trying to maintain a much bigger force--and the
fact that there are retention and recruitment bonuses
abounding, personnel management, procurement, and assignment is
easier now for the services. We have been dealing with peope
problems for a long time.
Looking at the Child Soldiers Protocol, it becomes obvious
that not a single one of the services' current recruiting
programs will be in any way imperiled or degraded. Department
of Defense military training programs can begin for children as
young as 13 years of age, as now occurs, and recruiting begins
on the 17th birthday.
The only new requirement is that when we assign these
recruits to duty we take ``all feasible measures to ensure that
their members of the armed services who have not attained the
age of 18 years do not take a direct part in hostilities.'' You
discussed this with Mr. Billingslea. To meet this new
requirement, however, is a very simple management matter.
First, the great majority of those who enlisted at 17 years
of age come in through the delayed entry program and, as was
explained, are already over 18 by the time they report for
duty.
Second, the minimum time for basic and initial recruit
training is from 4 to 6 months, so that another half of the 17-
year-old cadre passes their 18th birthday before completing
recruit training.
Finally, many of the recruits go directly from basic to
advanced specialty or technical training which can take up to
64 weeks. So, another group gets aged-out of the problem. In
the most recent DOD report, fewer than 3,000 recruits below the
age of 18 were available for assignment to general duties.
It is impossible to make that figure any more precise
because DOD simply has not provided the figures, but you can
say that under normal circumstances today, observing the Child
Soldiers Protocol will require us to find special assignments
for about 100 recruits each month in each service who have not
attained their 18th birthday.
In addition to the very small numbers you have to find
noncombat assignments for, there is another reason why such
assignments are not a problem. In each service, there are
combat units at varying levels of readiness: Equipment changes,
just returned from deployment, state of training. These units
are simply not in condition to be ordered out to combat
service. You can have the assignment offices flag these low
priority units and take the 10 or 20 people that they have each
month and push them into those units. If you spread them out
very evenly among the low priority units you are not going to
have any bunched-up group of recruits who are suddenly going to
be subjected to combat service.
The way I would demonstrate this, by the way, is the army
has just announced a program in which they will provide special
assignment consideration for army members who are returning
from arduous duties. Such duties involve family separation of
more than 6 months. Army has announced that all such
individuals will be posted to duties which will not result in
further family separation for at least another 6 months.
Because this policy will affect assignments for thousands of
individuals, many of them senior with special skills and
experiences, it will require major personnel management efforts
to ensure that they are protected from deployment for 6 months.
Protecting a very few inexperienced, unskilled 17-year-olds for
3 months is no challenge whatever by comparison.
Another point I would like to make is that those who argued
against the optional protocol often claim that combat readiness
and esprit would suffer if there was an early, unplanned
deployment of a unit to combat duties that would require the
transfer out of the 17-year-olds. Well, as I have noted, the
numbers are small. They are inexperienced. They will have only
been in the unit for a short time. This just is not going to
tear up the unit's structure and readiness.
The Navy, for example, before a carrier or a battle group
deploys today, will find the enlisted members and officers
whose service expires in the next 2 months, and they will move
them all out rather than send them overseas and bring them
back.
So, the management system is in place. The numbers that
will be involved are very limited, and people can be protected
from combat service without either loss of unit strength or
esprit.
I would point out that the units most subject to early
deployment, Rangers, Seals, Airborne forces, Air Force Special
Operations units, all require special training, and they do not
have any 17-year-olds. So, there is no problem with sudden,
unexpected exposure there.
In summary, I would say the 17-year-old recruits who are
available for assignment to combat units probably number fewer
than 100 on any one day, or about 0.1 percent of our current
active force. This presents no personnel management problems
nor threat to the combat readiness and effectiveness of the
United States armed services.
[The prepared statement of Admiral Carroll follows:]
Prepared Statement of RADM. Eugene J. Carroll Jr., USN (Ret.), Vice
President Emeritus, Center for Defense Information
You have already heard information and comments about the legal,
moral and political implications of assigning individuals under the age
of 18 to combat duties.
For that reason I will confine my brief remarks to a more pragmatic
issue: Will combat readiness and effectiveness of the U.S. Armed
Services be reduced by restricting U.S. servicemen and women under the
age of 18 from assignment to combat duties?
I claim some special insight into this issue by virtue of two and
one-half years concurrent service as both Director of U.S. Navy
Manpower Planning and Programming and as Assistant Chief of Naval
Personnel Plans and Programs. In these assignments I directed two
staffs, which determined how many and what kind of people Navy needed;
and then, determined how we would recruit, train, assign, promote and
retire those people. This was during the period immediately after
President Nixon had ended the draft and all of the services were in
desperate straits to man forces much larger than today's 1,400,000
active forces. Since then basic pay has more than tripled and
recruitment and retention bonuses abound. Today the services face new
problems in a terrorist world but personnel numbers and force
management are not among them.
Looking at the Child Soldiers Protocol, it becomes obvious that not
a single one of the service's current recruiting programs is adversely
affected in any way. Department of Defense Military training programs
can legally begin for children as young as 13 years of age and
recruiting for active service still begins at the 17th birthday.
The only new requirement is that the United States government must
``take all feasible measures to ensure that members of their armed
services who have not attained the age of 18 years do not take a direct
part in hostilities.'' To meet this new requirement is a very simple
matter for three reasons:
1. The great majority of those who enlist at 17 years of age
actually enter service under the Delayed Entry Program, which
permits them to delay service for up to 12 months. Only 6% of
all recruits are less than 18 years old when they finally
report for active duty.
2. The minimum period of time for basic recruit training
ranges from 4 to 6 months. About half of the 17-year-old cadre
passes their 18th birthday before completing recruit training.
3. Finally, the majority of recruits go directly from basic
to advanced specialty or technical training which can take up
to 64 months. Thus, all but one quarter of one percent of all
recruits are more than 18 years of age before they become
available for assignment to combat units.
It is impossible to determine a precise number of 17-year-olds who
complete basic training and become available immediately for combat
assignments. In June 1999, DOD estimated that less than 100 17-year-
olds were serving in combat units. A different figure was offered by
DOD as of 30 September, 2000 when they reported that there were a total
of 3289 individuals less than 18 years of age on active duty but only
468 had completed training and were available for assignment to service
units. Thus, under the Child Soldiers Protocol, over a one-year period
each service, on average, would have to find assignments, which would
not expose 120 recruits to combat for a period of about three months
until they attained their 18th birthday.
In addition to the small numbers involved, there is another reason
why such assignments would be no problem. In each service there are
units at various stages of training and equipment readiness for
deployment. In each service assignment offices would flag the lowest
rated units and every month spaces would be found in them for about 10
recruits. When one considers that every month each service must find
spaces for about 3,000 to 4,000 recruits in the active forces, 10
restricted assignments per month pose no personnel management problem
at all.
This can be demonstrated by the recent Army decision to provide
special assignment consideration for all Army members returning from
arduous duties, which involved family separation of more than six
months. Army has announced that all such individuals will be posted to
duties which will not result in further family separation for at least
six months. Because each year this policy will affect assignments for
thousands of individuals, many of them senior with special skills and
experiences, it will require major management efforts to ensure that
they are protected from deployment for at least six months. Protecting
a few inexperienced 17-year-old recruits for about three months is no
challenge, by comparison.
As a last point, in the past those who argued against the Optional
Protocol often claimed that combat readiness and unit esprit would both
suffer if an unplanned deployment to a combat zone suddenly required
the transfer out of 17-year-olds. As explained above, this would
involve at most a few very junior, unskilled members who had been with
the unit only a few weeks. The few vacancies could be quickly filled by
lateral transfers of 18 year-olds from nearby units without loss of
either unit strength or esprit. Also, it is noted that this would never
happen in the highly mobile, readily deployable prestigious combat
units such as Rangers, Seals, Airborne or Air Force Special 0ps units
because the special training required to qualify for duty in such units
ensures that no 17-year-olds serve in them.
In summary, 17-year-old recruits who are available for assignment
to combat units number fewer than 200, or about one tenth of one
percent of the current 1,400,000 active duty force. This presents no
personnel management problems nor threat to the combat readiness of the
U.S. Armed Services.
______
Responses of RADM. Eugene J. Carroll, Jr., USN (Ret.) to Additional
Questions for the Record Submitted by Senator Jesse Helms
Question. Admiral Carroll, what is your view of the
``understandings'' that the Defense Department wants placed in the
resolution of ratification? Do these make sense, or will they be
criticized by you and other Protocol proponents?
Answer. I am unable to identify any ``understandings'' proposed by
the Department of Defense. Assuming that the question refers to the
Understandings set forth in a State Department Report which was
forwarded to the Senate on July 25, 2000 by President Clinton, my
answer follows. The apparent intent of the Understanding relating to
Article 1 of the Protocol is to set the stage for a U.S. defense in the
unlikely event of a 17-year-old becoming involved in combat action. The
tortured legal circumlocution seeks to exculpate the U.S. in advance by
narrowly defining the terms ``all feasible measures'' and ``direct part
in hostilities.'' None of this in anyway reduces the services'
obligation under the Protocol to make formal, effective provisions to
assign several hundred 17-year-old recruits each year to duties outside
of areas of active hostilities and/or to units scheduled for early
deployment to such areas. As long as there is a good faith effort to do
this, no individual or group would have any basis for complaint if one
or more 17-year-old service members happened to come under fire through
the exigencies of military service. As the events of September 11, 2001
make clear, not all violence can be predicted or avoided.
All of the Understandings under each of the other Articles except
Article 9 are innocuous and should not interfere with full U.S.
compliance with the letter and spirit of the Protocol. For this reason
they should draw no public criticism.
Article 9, however, raises once again all of the fundamental
questions as to why the U.S. will not accede to the U.N. Convention on
the Rights of the Child, a Convention which is American in spirit,
objectives and values. Nevertheless, that is a separate debate which
will go on without respect to the undeniable importance and value of
the Child Soldiers Protocol which stands alone as an independent
multilateral treaty. Taken altogether, the Understandings are sensible
and should be accepted without complaint by all those who support the
Protocol as drafted.
Question. Will this protocol have any impact on the United States
Armed Forces ability to enlist 17-year-olds, or on the military's
ability to recruit at high schools, sponsor JROTC programs, or
participate in other activities involving Americans who are not yet
eighteen?
Answer. The Child Soldiers Protocol permits the United States to
continue all current recruiting and training practices, specifically
the voluntary enlistment of 17-year-olds and enrollment of ninth grade
students as young as 13 years of age in the JROTC and NJROTC programs.
It interposes no restraints whatever on voluntary recruiting
activities. The prohibition of conscription below the age of 18 is
consistent with U.S. laws. For those several hundred recruits who
complete entry level training each year before their 18th birthday, the
Protocol requires only that the services ``take all feasible measures''
to assign them to units which will not be subject to hostile action
before they attain their 18th birthday. Based on my personal
experiences in personnel planning, management and assignment programs,
this poses no significant problems for any of the services. It
certainly will not impair combat readiness, unit integrity and esprit
because it involves only a miniscule number of the least experienced
members in a very few units. It could even have a positive effect on
recruiting because it could encourage parents to grant permission for a
child to enlist at age 17, secure in the knowledge that the services
will endeavor to assure that the child will not be sent directly into
combat.
Senator Boxer. Thank you very much, Admiral Carroll.
We will turn to Admiral Fanning of the Navy League and we
welcome you.
By the way, let me state that I am going to put all of your
statements in the record, as you have submitted them, and that
goes for the first panel as well. We appreciate that you are
summarizing. Please proceed.
STATEMENT OF RADM. TIMOTHY O. FANNING, JR., USNR (RET.),
NATIONAL PRESIDENT, THE NAVY LEAGUE OF THE UNITED STATES,
WASHINGTON, DC
Mr. Fanning. Thank you. Madam Chairperson, Senator Helms, I
would like to thank you for the opportunity to testify before
your Committee on the child soldier issue as it relates to the
Protocol on Children in Armed Conflict. The practice by which
young children are taken from their families and forced to join
armed factions in endless conflicts is a scourge and should be
eradicated as quickly as possible. Pursuit of that goal is a
noble effort.
However, care must be taken to avoid unintentional
consequences in pursuit of that goal. A strict reading of the
protocol raises questions with regard to the assignment of
young armed service members. I am aware of the potential
impacts on morale and readiness that restrictions on personnel
assignments can have. I have acquired this knowledge through a
series of command positions in the course of 31 years of active
and reserve duty in the Naval Reserve, including an assignment
on the Reserve Policy Board.
I am also aware of the attitudes and circumstances
associated with young volunteers and the benefits that can be
provided by certain youth organizations. Among other
activities, I founded a United States Naval Sea Cadet unit and
went on to be President and Chairman of the Board of Directors
of the United States Naval Sea Cadet Corps. This corps directs
a nationwide youth leadership program involving young men and
young women, ages 11 to 17. It has been my personal observation
that for those who wish to participate in programs like the
U.S. Naval Sea Cadet Corps, Junior ROTC in our high schools,
and the Young Marines program provide an opportunity for young
people to become involved in an alternative, structured program
in which leadership skills are acquired and self-discipline is
developed. Many of those who participate in these programs come
from one-parent families under circumstances where these
opportunities and appropriate role models are not otherwise
available. Participation in these programs allows young people
to make an informed decision as to whether they would be
interested in joining our all-volunteer armed forces. I believe
you will find a much higher retention rate in boot camps for
volunteers who have been in these youth programs because they
enter military life with better preparation and a more
realistic view of its benefits and demands. I certainly hope
the provisions of this protocol will not be manipulated by some
groups to adversely affect the useful contributions of these
volunteer civilian organizations.
From a military point of view, our service chiefs are
charged with developing a superior military force available to
carry out the commands of the Commander-in-Chief for the
defense of our great Nation. Currently our armed services are
permitted to recruit 17-year-old volunteers with parental
consent. This practice, as we have been shown, is carefully
regulated and should be allowed to continue without additional
hindrance. To impose on unit and ship commanding officers a
requirement to consider birthdays when making duty assignments
or forcing them on the verge of deployment to replace team
members that have trained hard together and developed a mutual
trust runs counter to our proven philosophy of readiness. It
also places an unnecessary burden on commanders whose shoulders
are already heavily ladened with responsibility.
I agree that young children should not be soldiers and
should never be forced into armed factions at a tender age of
10 or 12, but care must be taken to ensure the protocol is not
misused. If the protocol is ratified, we need to carefully
establish how it will be applied and how we will interpret our
obligations under it. In doing so, we should pursue two goals.
First, we should ensure that the original problem is confronted
and confronted without unnecessary collateral damage to our
military readiness and requirements. Second, we should always
keep in mind the duty we owe to our commanders to ensure that
they are not subjected to additional burdens or liability for
honest decisions made under adverse conditions.
After hearing the previous panel, I believe that the
protocol should be ratified but that the criminality provision
should be carefully considered.
Thank you very much, Madam Chairperson.
[The prepared statement of Admiral Fanning follows:]
Prepared Statement of RADM. Timothy O. Fanning, Jr., USNR (Ret.),
National President, The Navy League of the United States
Madam Chairperson, Senator Helms, I would like to thank you for the
opportunity to testify before your Committee on the child soldier issue
as it relates to the Protocol on Children in Armed Conflict. The
practice by which young children are taken from their families and
forced to join armed factions in endless conflicts is a scourge that
should be eradicated as quickly as possible. Pursuit of this goal is a
noble effort. However, care must be taken to avoid unintentional
consequences in pursuit of that goal. A strict reading of the Protocol
raises questions with regard to the assignment of young armed service
members. I am aware of the potential impacts on morale and readiness
that restrictions on personnel assignments can have. I have acquired
this knowledge through a series of command positions in the course of
31 years of active and reserve duty in the Naval Reserve, including an
assignment on the Naval Reserve Policy Board.
I am also aware of the attitudes and circumstances associated with
young volunteers and the benefits that can be provided by certain youth
organizations. Among other activities, I founded a United States Naval
Sea Cadet unit and went on to be President and Chairman of the Board of
Directors of the United States Naval Sea Cadet Corps. This Corps
directs a nationwide youth leadership program involving young men and
young women ages 11-17. It has been my personal observation that, for
those who wish to participate, programs like the U.S. Naval Sea Cadets,
Junior ROTC in our high schools and the Young Marines program provide
an opportunity for young people to become involved in an alternate
structured program in which leadership skills are acquired and self-
discipline developed. Many of those who participate in these programs
come from one parent families under circumstances where these
opportunities and appropriate role models are not otherwise available.
Participation in these programs allows young people to make an informed
decision as to whether they would be interested in joining our all
volunteer armed forces. I believe that you will find a much higher
retention rate in boot camps for volunteers who have been in these
youth programs because they enter military life with better preparation
and a more realistic view of its benefits and demands. I certainly hope
that the provisions of this Protocol will not be manipulated by some
groups to adversely affect the useful contributions of these volunteer
civilian organizations.
From a military point of view, our service chiefs are charged with
developing a superior military force available to carry out the
commands of the Commander-in-Chief for the defense of our great Nation.
Currently our armed services are permitted to recruit 17-year-old
volunteers with parental consent. This practice is carefully regulated
and should be allowed to continue without additional hindrance. To
impose on unit and ship commanders a requirement to consider birthdays
when making duty assignments or forcing them, on the verge of
deployment, to replace team members that have trained hard together and
developed mutual trust runs counter to our proven philosophy of
readiness. It also places an unnecessary burden on commanders whose
shoulders are already heavily laden with responsibility.
I agree that young children should not be soldiers, and should
never be forced into armed factions at the tender age of ten or twelve,
but care must be taken to ensure that the Protocol is not misused. If
the Protocol is ratified, we need to carefully establish exactly how it
will be applied and how we will interpret our obligations under it. In
doing so, we should pursue two goals. First, we should ensure that the
original problem is confronted and confronted without unnecessary
collateral damage to our military readiness and recruitment. Second, we
should always keep in mind the duty we owe to our commanders to ensure
tbat they are not subjected to additional burdens or liability for
honest decisions made under adverse conditions.
______
Responses of RADM. Timothy O. Fanning, Jr., USNR (Ret.) to Additional
Questions for the Record Submitted by Senator Jesse Helms
Admiral Fanning, our Navy is deployed around the world. It can be
difficult to determine when you are in a hostile environment. (For
example, the Port of Yemen was not considered a combat zone at the time
the USS Cole was attacked by terrorists.)
Question. Is our Navy particularly susceptible to charges that it
failed to keep its 17-year-old sailors out of direct combat?
Answer. I don't think the Navy is particularly susceptible to
charges that it failed to keep its 17-year-old soldiers out of direct
combat. It is my understanding that the Navy can do this with minimum
administrative impact due to fairly small numbers and a training
pipeline which would take most new recruits past their 18-year-old
birthday. Again, the point of my testimony is that I am more concerned
with the principle of criminality rather than the actual impact.
Question. Do you have any concerns about unit morale or readiness
if, in the event of a real-world deployment, 17-year-old soldiers and
sailors are pulled from the unit at the last moment?
Answer. No, I don't think that there would be much of an impact on
morale because the actual incidence in which this could conceivably
occur is quite small. I am confident that our commanding officers can
properly explain this to their people.
Question. What impact will this Protocol have on U.S. military
commanders for failing to pull their l7-year-olds from a deployment--if
that becomes DOD policy--or not taking precautions to ensure their l7-
years-olds are not engaged in direct combat?
Answer. As I said before, the actual impact is likely to be
negligible because of the small number of affected personnel.
Question. Could commanders be charged under the Uniform Code of
Military Justice in certain situations related to this Protocol?
Answer. Charging commanders with violation of the Protocol is not
likely to happen. As your Committee is well aware, treaties are not
self-executing and unless Congress passed a criminal provisions
codifying the Protocol in the UCMJ it would not result in a UCMJ or
federal prosecution. If DOD adopted the Protocol and made it binding
via a lawful general order, then it would be possible for commanders to
be prosecuted by U.S. military authorities although I think the
likelihood is fairly remote. As I said before, I am most concerned
about the underage serviceperson who slips through the cracks and that
person or his/her commander is held accountable by foreign legal
authorities.
Question. What impact will this Protocol, and subsequent Pentagon
policies to implement it, have on military recruiting, particularly
since the military does a great deal of its recruiting at high schools?
Answer. I don't think a bar on 17-year-old combatants will affect
recruiting in any measurable way, but I'd defer to DOD's analysis of
this.
Question. Will this Protocol have any impact on the United States
Armed Forces ability to enlist 17-year-olds, or on the military's
ability to recruit at high schools, sponsor JROTC programs, or
participate in other activities involving Americans who are not yet
eighteen?
Answer. No. The Protocol should not have any direct impact on our
youth recruitment or sponsorship programs. I must reiterate that a
ratification of the Protocol may mean that we have some public
relations work to explain why JROTC, Sea Cadets and other youth
programs are positive and separate and distinct from the intent of the
Child Soldiers Protocol.
Senator Boxer. Thank you very, very much, Admiral, and
thanks to all of you.
I just wanted to state I thought that your concerns were
very well put forward here. I am very glad that, after
listening, you feel now that you can support the ratification.
I think that because it uses the word ``feasible,'' that is
a very important word in the protocol itself because something
could happen that you could not expect, and we are not going to
be harmed if something like that happens. So, I hope you feel,
as I do, that we can move forward.
The point that you made, Admiral Carroll, that I thought
was very good, that there are disruptions that happen in our
military all the time and this would be a very small one, if
that at all, given the numbers. You pointed out that the
commanders have to make sure that families are not separated
for too long. I remember when I was on the Armed Services
Committee in the House, we were concerned about husband and
wife being sent into combat in those years, and that took some
work because there were a lot of people that it affected.
So, I do not have any questions except to thank the panel
for clearly, Jo Becker, your long labors in this field and, to
my friends from the military, for looking at this and giving us
a really honest assessment and giving us a heads-up on what
could be a problem and explaining to us that there are
occasions every day in the military where looking after
particular personnel problems does occur. But this appears to
be a smaller one than some of the others. I greatly appreciate
it.
I do not have anything else today. I will turn it over to
Senator Helms.
Senator Helms. Thank you, Madam Chairman.
A question of each of you, and I have one question. Let me
ask you first, Ms. Becker. Have you read the executive branch's
proposal for three understandings and one declaration?
Ms. Becker. Yes, I have.
Senator Helms. Do you agree with it?
Ms. Becker. My personal preference would be if the Defense
Department would be willing to go just a little bit further and
exclude 17-year-olds from combat units altogether. But on
balance, certainly the understandings around the relationship
between the protocol and the Convention on the Rights of the
Child seem very reasonable given the current status of the
Convention here in the United States. And I believe that the
interpretation around feasible measures is one that also makes
sense for the U.S. military. So, although, as I said, I would
prefer operationally for the Defense Department to be able to
go a little bit further, I think that what they have proposed
is reasonable.
Senator Helms. How about you, Admiral?
Mr. Carroll. I have not read the statement, no.
Mr. Fanning. I have not seen it either, Senator.
Senator Helms. Obviously, she has, but make a copy, if you
will, and hand it to them before they leave. I would ask you to
write to me--and I will make it available for the Committee's
records--whether you would be willing to agree to this proposal
by the executive branch because I need to know. If you will do
that, I will appreciate it. You will be handed a copy of this
as you leave.
[The following reply from Mr. Fanning was subsequently
provided.]
In reply to your question before the Senate Foreign Relations
Committee, I believe that clarification of the terms ``feasible'' and
``direct part in hostilities'' is acceptable provided that is the way
that other countries, and their courts, interpret those words in their
implementation of the Protocol. As I said before, I am in favor of the
adoption of the Protocol for the reasons set forth by DOD. However, I
have some continuing concerns about the possibility that a foreign or
international criminal court would not agree with our interpretation of
the Protocol in their prosecution of a U.S. serviceperson. I expect
that there is a low probability that this will ever happen, but no U.S.
serviceperson should ever have to stand trial because there is a
difference of opinion between two sovereigns as to the meaning of
certain words.
Senator Helms. Madam Chairman, I have nothing further, and
I commend you on the way you have conducted this meeting.
Senator Boxer. Thank you very much.
Again, our thanks to everyone. I am very hopeful that with
Senator Biden and Senator Helms working together, we can really
move this forward. I thank you so much for coming here today.
The Committee stands adjourned.
[Whereupon, at 11:53 a.m., the Committee was adjourned.]
----------
Statements Submitted for the Record
Prepared Statement of Senator Russell D. Feingold
Madame Chair, thank you for calling this hearing today on two
important protocols to the Convention on the Rights of the Child. One
protocol addresses the sale of children, child prostitution and child
pornography. The second protocol addresses the problem of child
soldiers. Taken together, these two protocols address some of the most
egregious human rights violations experienced by children in the world
today.
Having traveled extensively in Africa as Chairman of the
SubCommittee on African Affairs, I have seen the devastating effects of
armed conflict on children in Angola, the Democratic Republic of Congo,
and Sierra Leone. I have also witnessed the heartbreaking exploitation
of children in many other countries, particularly in societies where
entrenched poverty and despair make children particularly vulnerable to
neglect and abuse.
I am pleased that the Senate is considering these treaties, and I
look forward to hearing how they will strengthen the international
regime to protect all children from violence and exploitation.
______
Prepared Statement of Cris R. Revaz, American Bar Association
The American Bar Association appreciates this opportunity to
communicate its views on the issue of U.S. ratification of the Optional
Protocol on the Sale of Children, Child Prostitution and Child
Pornography and the Optional Protocol on the Involvement of Children in
Armed Conflict. My name is Cris Revaz. I am a practicing attorney at
the firm of Hale and Dorr in Washington D.C. and I co-chair the
International Human Rights Committee of the ABA's Section of
International Law and Practice.
The American Bar Association supports U.S. ratification of the two
Optional Protocols to the UN. Convention on the Rights of the Child
(``CRC''). Indeed, the ABA has long supported U.S. actions to enhance
legal protections to children throughout the world. The ABA has called
for ratification of the CRC on several occasions, as well as the Hague
Conventions on Abduction, Intercountry Adoption, and Parental
Responsibility and Protection of Children. The ABA has endorsed the
abolition of economic exploitation of children and enforcement of child
labor protections, and the protection of the legal rights of immigrant
children. Its work, particularly through the ABA Center on Children and
the Law, also has included special attention to the issue of child
victims of sexual exploitation. Our call for ratification of these two
Optional Protocols extends a long tradition of child advocacy to two of
the most heinous human rights abuses on the planet.
The Optional Protocol on the Sale of Children, Child Prostitution
and Child Pornography (``OP-SC''), which entered into force on January
18, 2002, takes on the modern-day slavery and exploitation of children.
This scourge includes a growing, global, multi-billion dollar industry
that is now a principle bedrock of transnational crime--trafficking for
sexual exploitation and forced labor. Thanks to the public debate that
presaged enactment of the Trafficking Victims Protection Act, as well
as ongoing federal and law enforcement initiatives, media reports and
continuing pressure from the NGO community, the public is more aware of
the scope and severity of the trafficking phenomenon. However, a
sometimes overlooked aspect of this problem is the increasing number of
innocent children, who are bought and sold into a living hell of
degradation, torture, rape, disease, and alienatioa The OP-SC deals
with the trafficking of children by making punishable its underlying
legal act, the sale of a child. In addition, it separately extends to
two other insidious and related aspects of commercial sexual
exploitation--child prostitution and child pornography.
The Optional Protocol on the Involvement of Children in Armed
Conflict (``OP-AC''), which entered into force February 12, 2002,
addresses the despicable use of children to fight and die in numerous
battlefronts across the globe. It sets the age of eighteen as the
minimum age requirement for direct participation in armed conflict and
conscription, i.e., forced recruitment.
the underlying problems addressed by the optional protocols
The Sale of Children for Commercial Sexual Exploitation or Forced Labor
UNICEF estimates that one million children are forced into
prostitution in South Asia alone, and another one million worldwide.
The child victims of commercial sexual exploitation are both boys and
girls, although they are primarily girls between 10 and 18 years of
age. Research suggests that the age of the children involved is
decreasing, and sexual exploitation of children as young as 6 has been
documented. Illicit trafficking is expanding through the use of child
pornography on the Internet which attracts sex tourists and pedophiles.
Children are favored targets for commercial sexual exploitation, and
certain disadvantaged groups--minorities, refugees, street children,
poor children, juveniles from broken homes, and disabled minors--are
often the most vulnerable to exploitation. In addition, children are
trafficked out of orphanages for illegal adoptIon or prostitution.
The United States certainly is not immune to the trafficking and
exploitation of children for sexual purposes or forced labor. The U.S.
State Department conservatively estimates that 50,000 women and
children are trafficked into the United States annually, primarily from
Latin America, the former Soviet Union and Southeast Asia. Roughly half
of this amount end up in coerced or bonded sweatshop labor and domestic
servitude, and the rest are sexually exploited. Trafficking of children
is highly lucrative--a single trafficked child can earn a trafficker as
much as $30,000 or more in fees.
A recent landmark study on the commercial sexual exploitation of
children in the United States by Dr. Richard Estes and Dr. Alan Weiner
of the University of Pennsylvania conservatively estimates that 17,000
children make up these 50,000 victims, with half of this group
exploited for sex and the other half exploited for labor. According to
ECPAT-International, there are numerous reports of trafficking of
children into the United States, but the cases are difficult to verify
because of the underground and illegal nature of the trade.
Children sold or trafficked into sexual servitude often suffer
extreme physical and mental abuse, including rape, torture, starvation,
imprisonment, death threats, and physical brutality. They are
continually exposed to deadly diseases, including HIV/AIDS, and
experience stigmatization, depression, and post-traumatic shock.
Children sold into domestic servitude, bonded sweatshop labor, and
other industries are subjected to violence and may be literally worked
to death.
Child Prostitution
UNICEF estimates that there are between 90,000 and 300,000 minors
engaged in prostitution in the United States. ECPAT believes the figure
could be substantially higher. According to a 1990 Department of
Justice study, over 577,000 children annually were runaways or had been
kicked out of their homes. The Estes report found that children and
youth older than 12 years are prime targets for sexual exploitation,
and are most often runaways or homeless youth. It further found that
approximately 30% of shelter youth and 70% of street youth engage in
prostitution to meet their daily needs for food, shelter, drugs and the
like. Some 80% of child prostitutes were sexually abused at home.
The Estes report found that up to 70% of female juvenile
prostitutes were raped by their customers an average of 31 times per
prostitute. According to ECPAT-USA, child prostitutes experience
depression, self destructive tendencies, the inability to enter
mainstream society, and ostracism. Child victims of prostitution may
experience a lifetime of recurrent illnesses, such as venereal
diseases, fertility problems, pregnancy complications, malnutrition and
tuberculosis and severe mental illness.
Child Pornography
Thanks to the internet, strong demand and ready supply, child
pornography is on the rise. According to ECPAT-USA, there has been a
major increase in the commercial production of child pornography since
the early 1970s and computer bulletin boards and other on-line services
have become a major avenue. Regionally, the most likely source of
pornographic films and photos is now Eastern Europe and Southeast Asia,
with Japan the largest producer and consumer of child pornography in
the world. In August, 2001, the FBI and U.S. Customs shut down an
internet company based in Ft. Worth, Texas, that provided its 250,000
subscribers with access to sexual images of adults and children through
websites based in Indonesia and Russia, and arrested 100 people.
According to authorities, the company grossed as much as $1.4 million
in a single month. The number of children involved is unknown, but a
child as young as 4 years old was identified. The FBI estimates that
over 50% of all child pornography seized in the United States depicts
boys.
Child Soldiers
The Coalition to Stop the Use of Child Soldiers reports that
approximately 300,000 children in over 40 countries worldwide are
engaged in military conflict. Another 500,000 are recruited into
paramilitary organizations, guerrilla groups and civil militias in more
than 85 countries. The exact number, ages, and distribution of child
soldiers are extremely difficult to calculate because of the efforts to
hide the use of child soldiers, the tendency of many youth to lie about
their true age, because armed opposition groups do not operate under
public scrutiny, and because of the constantly changing locations and
intensity of armed conflicts. According to UNICEF data, armed conflict
killed more than two million children in the decade between 1986-1996,
injured 6 million, traumatized over 10 million and left more than 1
million orphaned.
Children are easily manipulated and drawn into violence they are
unable to resist or understand largely because of their emotional and
physical immaturity. The most vulnerable children are those who are
poor, separated from their families, displaced from their homes, living
in a combat zone, or with limited access to education. Serving as
frontline grunts, sexual servants, spies, and porters, child soldiers
are exposed to serious injury and death, as well as disease, physical
assault, and rape.
As soldiers, both boys and girls may be sent to the front lines of
combat or into minefields ahead of other troops. In certain countries,
such as El Salvador, Ethiopia and Uganda, nearly a third of the child
soldiers were reported to be girls. Child soldiers have been used for
suicide missions and have been forced to commit atrocities against
their own family and neighbors. In some places, young soldiers have
been given drugs to increase their courage and dull their sensitivity
to pain. Because of their inexperience and lack of training, child
soldiers suffer far higher casualty rates than adult soldiers. Those
who survive may be permanently disabled, with the most common injuries
being loss of hearing, loss of limbs, and blindness. Others bear
psychological scars from being forced to both commit and witness
horrific atrocities. The difficulty of demobilizing and reintegrating
child soldiers into peacetime society and values is one of the greatest
challenges facing a number of post-conflict societies.
the protocols in the context of international human rights agreements
The OP-SC
The OP-SC is not the first international instrument to condemn
trafficking or other modern-day forms of slavery. There are a number of
such agreements, some dating back to the early 20th century, such as
the ``1904 International Agreement for the Suppression of White Slave
Traffic.'' Others include the 1926 Slavery Convention; the 1930 ILO
Forced Labor Convention; the 1957 Supplementary Convention on the
Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery; and the 1949 Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of
Others. While many of these conventions took laudable stances against
slavery-like practices or forced labor, they often suffered from
imprecise definitions and offered few tools for combating the problem.
The result was that the international community remained without a
clear set of comprehensive, meaningful standards, the agreements were
largely ignored, and the practices festered.
In recent years, with the commercial sexual exploitation of women
and children exploding, the U.N. has struggled to more effectively deal
with the problem. In 2000, after six long years of negotiations, it
adopted the OP-SC. Later that same year, the U.N. also adopted the
Protocol To Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, to the U.N. Convention Against
Transnational Organized Crime. This Protocol offers the first
comprehensive definition of trafficking, one that incorporates notions
of coercion, deception or fraud in the recruitment phase, and an
emphasis on the exploitation victims suffer in the slavery phase. It
also articulates a comprehensive enforcement strategy.
By comparison, sex trafficking per se is not the express focus of
the OP-SC; yet the OP-SC clearly aims to make punishable its underlying
acts, methods and outcomes. It does so by being the first international
instrument to define and require criminalization of the sale of
children, child prostitution and child pornography. By encompassing
attributes of trafficking without limiting its terms as such, the OP-SC
can be a tool against trafficking even as it makes actionable a broader
spectrum of commercial sexual exploitation. In addition, just as ILO
182 did with the worst forms of child labor, the OP-SC focuses only on
commercial sexual exploitation as to children.
More directly, the OP-SC advances clear prohibitions in the CRC
against sexual exploitation and abuse, including prostitution and
involvement in pornography, and the sale, trafficking and abduction of
children, as well as the right to be protected from ``economic
exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's education, or to be harmful
to the child's health or physical, mental, spiritual, moral or social
development.'' Comparable language is found in ILO Convention 182 on
the Worst Forms of Child Labor, whose scope encompasses trafficking,
and which the United States was among the first countries to ratify.
The OP-AC
Under the CRC, the general definition of a child is any person
under the age of 18. However, Article 38 of the CRC, governing children
and armed conflict, uses 15 as the minimum age for recruitment and
participation in hostilities. This is the only explicit departure from
the general definition of a child based on the 18-year minimum age.
Other international legal instruments reflect the view that 18
should be the minimum age for involvement in military conflict. The
African Charter on the Rights and Welfare of the Child adopted shortly
after the CRC defines a child as being up to 18 years (without
exception), and Article 22(2) provides: ``States Parties to the present
Charter shall take all necessary measures to ensure that no child shall
take a direct part in hostilities and shall refrain, in particular from
recruiting any child.'' In December, 1995, the 26th International
Conference of the Red Cross and Red Crescent passed a recommendation
whereby parties to armed conflict must take every feasible step to
ensure that children under 18 do not participate in hostilities.
In addition, ILO Convention No. 182, adopted unanimously by the 174
members of the ILO, requires each ratifying Member to take immediate
and effective measures to secure the prohibition and elimination of the
worst forms of child labor as a matter of urgency; defines a ``child''
as all persons under the age of 18, and ``the worst forms of child
labor'' as, inter alia, ``forced or compulsory recruitment of children
for use in armed conflict'' and ``work which, by its nature or the
circumstances in which it is carried out, is likely to harm the health,
safety or morals of children.''
Several years after the CRC's adoption, the anomaly between its
general definition of a child as under 18 and the age 15 minimum for
armed conflict, led the U.N. Commission on Human Rights to establish an
open-ended inter-sessional working group to elaborate, as a matter of
priority, a draft optional protocol to the CRC that would raise the
minimum age for recruitment and participation in hostilities to 18.
The practices addressed by both protocols violate longstanding
human rights principles embraced by the international community and
extended to all persons. The Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights (which the United
States has ratified), the CRC and the International Covenant on
Economic, Social and Cultural Rights (both of which the United States
has signed), proclaim a range of human tights that are mocked by the
sale of children, child prostitution and child pornography, and the use
of child soldiers. Such rights include, among others, the right to
life; the right not to be tortured or subjected to cruel and degrading
treatment; the right to personal liberty and security of person and to
be free from physical violence; the right to freedom of choice of
residence and movement; the right to consensual marriage; the right to
work and just, fair, and safe working conditions; and the right to
education, health and social services.
principal provisions of the optional protocols
Principal Provisions of the OP-SC
The key elements of the OP-SC relate by varying degrees to the
widely-accepted mantra for fighting commercial sexual exploitation--
prevention, prosecution and punishment, and protection.
The thrust of the OP-SC is prosecution and punishment. It requires
states parties to prohibit the ``sale of children, child prostitution
and child pornography,'' and clearly defines these terms. (Art. 2) It
makes actionable, under a state party's criminal or penal law, certain
broadly-defined practices relating to these acts, including attempts,
complicity, or participation, and requires punishment by appropriate
penalties that take into account the ``grave nature'' of the offense.
(Art 3) These provisions are to apply both domestically and
internationally, as well as to individuals and organizations.
Why is the OP-SC's demand for strong national legislation
important? According to the Protection Project, as of one year ago only
48 countries had laws that criminalized trafficking for sexual
purposes. While many countries have laws that prohibit the procuration
of women and children for prostitution or forced labor, they are rarely
enforced. The fact is that even where laws exist, law enforcement
personnel and prosecutors often do not give high priority to
trafficking-related offenses. Quite often, penalties are so weak as to
be ineffective, and progress is stifled by complicity and corruption in
law enforcement.
The OP-SC sets forth the bases for states parties to assert
jurisdiction over actionable practices. (Art. 4) It requires each party
to take necessary measures to establish its jurisdiction over such
offenses when the offense is committed in its territory, and also
provides for jurisdiction when either the alleged offender is a
national of that state or habitually resides there, or the victim is a
national of that state. It also clarifies and strengthens the ability
of states parties to pursue extradition of offenders. (Art 5) These
provisions are helpful in facilitating the prosecution of offenders
regardless of their location.
With respect to prevention, the OP-SC mandates that states parties
take certain legal and policy measures to prevent the sale of children,
child prostitution and child pornography, and must pay particular
attention to protecting those children who are especially vulnerable to
the proscribed practices. (Art. 9) It further mandates promoting public
awareness through education and training about the preventative
measures and harmful effects of these offenses, and seeks the
involvement of the community and children and child victims in this
campaign. These provisions, which might foster internationally the
sorts of programs the U.S. is already required to establish under the
new trafficking law, also are welcome. According to the Protection
Project, few countries have developed programs to prevent trafficking
by educating women and children about how to avoid being trafficked, or
to educate men and boys against the sexual exploitation of women, or to
educate government officials about prevention.
Admittedly, the protection and assistance provisions are not as
strong as they might be. In particular, various NGOs expressed a
legitimate concern that the OP-SC did not go far enough to ensure the
non-criminalization of child trafficking victims. Nonetheless, the
protection language may be of significant benefit to sexually exploited
children. States parties are to pursue ``all feasible measures'' in
rendering appropriate assistance to victims of such offenses, including
their ``full social reintegration, and their full physical and
psychological recovery.'' (Art. 9.3) Child victims are to have access
to adequate procedures to seek, without discrimination, compensation
for damages from those legally responsible. (Art. 9.4). Moreover,
states parties must adopt ``appropriate measures'' to protect the
rights and interests of child victims at all stages of the criminal
justice process. (Art. 8.1)
This last provision enumerates numerous duties for states parties,
such as the duties to: recognize the vulnerability of child victims and
adapt procedures to recognize their special needs; inform child victims
of their rights; allow the views, needs, and concerns of child victims
to be presented and considered in proceedings where their personal
interests are affected; provide appropriate support services to child
victims; protect the privacy and identity of child victims and act to
avoid disseminating information that could identify child victims;
protect child victims from intimidation and retaliation; and avoid
unnecessary delay in disposing of cases and executing compensation
orders or decrees for child victims. As a guiding principle, Article
8.1 states that where the judicial treatment of child victims is
concerned, the best interest of the child must constitute the primary
consideration.
In addition, our new U.S. trafficking law helps address the non-
criminalization of child victims by providing that while in federal
custody and to the extent practicable, victims of severe forms of
trafficking (which include children) shall not be detained in
facilities inappropriate to their status as crime victims.
Importantly, the OP-SC seeks a cooperative global approach to
ending commercial exploitation of children. It requires that states
parties ``afford one another the greatest measure of assistance in
connection with investigations or criminal or extradition
proceedings,'' including obtaining evidentiary support. (Art. 64) It
also calls for all necessary steps to strengthen international
cooperation by multilateral, regional, and bilateral arrangements for
the prevention, detection, investigation, prosecution, and punishment
of those that commit acts involving the sale of children, child
prostitution, child pornography, and child sex tourism. (Art. 10.1)
Principal Provisions of the OP-AC
The OP-AC extends to eighteen years-old the minimum age requirement
for direct participation in armed conflict and conscription, i.e.,
forced recruitment. It states that governments ``shall take all
feasible measures to ensure that members of their armed forces who have
not attained the age of eighteen years do not take a direct part in
hostilities.'' (Art. 1) It provides that governments ``shall ensure
that persons who have not attained the age of eighteen years are not
compulsorily recruited into their armed forces.'' (Art. 2) The OP-AC
forbids rebel or other non-governmental armed groups under any
circumstances from recruiting persons under the age of eighteen years
or using them in hostilities. Article 4(1) Governments are required to
take all feasible measures to prevent the recruitment and use of
children by such groups, including the criminalization of such
practices. Article 4(2)
The OP-AC departs from the age eighteen minimum, however, with
respect to voluntary recruitment into a state's armed forces.
Governments must raise the minimum age for voluntary recruitment beyond
the current minimum of fifteen, as established under Article 38(3) of
the CRC. (Art. 3) This means the minimum age for voluntary recruitment
is sixteen. Governments that recruit persons under eighteen must
maintain a series of safeguards, which ensure such recruitment is
genuinely voluntary and conducted with the informed consent of the
person's parents or legal guardians, that recruits are fully informed
of the duties involved in military service, and proof of age is
established.
With respect to implementation, the OP-AC requires governments to
``take all necessary legal, administrative and other measures to ensure
the effective implementation and enforcement'' of the Protocol, and
must take ``all feasible measures to ensure'' demobilization of
children recruited or used in violation of the Protocol, and ``when
necessary,'' provide appropriate rehabilitation and reintegration
assistance. (Art. 6)
It is important to note the relationship of both Optional Protocols
to the CRC, from which they originate. The CRC is the most widely-
acclaimed human tights treaty in history, with 191 countries now having
ratified it. Only the U.S. and Somalia have not done so. On three
separate occasions, the ABA has called for U.S. ratification, going so
far in 1994 as to suggest certain appropriate reservations,
understandings and declarations. The ABA remains hopeful that someday
the United States will join other members of the international
community in seeking to realize the CRC's universal principles for the
rights and protection of children. Until then, however, there is no
legal impediment to ratifying either the OP-SC or the OP-AC. Both
Protocols expressly provide they may be signed and ratified by
countries regardless of whether they have ratified the CRC. This
language was actually negotiated at the behest of the United States,
and the ``freestanding'' nature of the Optional Protocols are supported
by a legal opinion from the U.N. Office for Legal Affairs.
impact of ratification on u.s. law and opportunity for u.s. leadership
In its July 2000 report to Congress, the State Department did a
very thorough job of examining the impact of both Optional Protocols on
U.S. law. With respect to the OP-SC, Congress subsequently enacted the
Trafficking Victims Protection Act, which significantly enhances our
ability to deal with the commercial sexual exploitation of children.
Briefly reviewing State's analysis, several provisions of Title 18,
among other laws, satisfy the OP-SC's requirement to make punishable
the offering, delivering or accepting of a child for the purpose of
sexual exploitation, or for forced labor. Sec. 1591, added by the new
trafficking law, provides punishment for defendants who knowingly
recruit, entice, harbor, transport, provide or obtain a person knowing
that either force, fraud, or coercion will be used to cause the person
to engage in a commercial sex act, or the person is under 18 and will
be caused to engage in a commercial sex act. Depending on the age of
the child or whether force, fraud or coercion was involved, penalties
under this provision can include prison for any term of years to life.
Sec. 2423(a) prohibits the transport in interstate or foreign commerce
of any individual under age 18 ``with the intent that the individual
engage in prostitution and or in any sexual activity for which any
person can be charged with a criminal offense, or attempts to do so.''
Penalties include fines and prison term up to 15 years. Sec. 2251A
criminalizes the selling or buying of children for pornographic
purposes. Penalties include fines and 20 years to life.
Where the sale of the child is for forced labor, Sec. 1589, part of
the new trafficking law, punishes those who knowingly provide or obtain
the labor services of another by use of threats of serious harm or
physical restraint against a person, or by a scheme or plan intended to
make the person believe that if they did not perform the labor or
services, they would suffer physical restraint or physical harm. The
penalties are fines and prison terms of up to 20 years, and life in
prison under certain aggravating circumstances.
In addition, the involuntary servitude statutes, Sec. 1581
(peonage), Sec. 1583 (enticement into slavery), and Sec. 1584 (sale
into involuntary servitude) may also be used to prosecute the sale of a
child or any person for forced labor. Sec. 1590, also part of the
trafficking statute, provides punishment for defendants who knowingly
harbor, transport, or are otherwise involved in obtaining a person for
peonage, slavery, or involuntary labor or services. These provisions
carry fines and prison terms of up to 20 years, and life in prison
under certain aggravating circumstances. Title 8, Sec. 1328 also
prohibits importing any alien into the United States for prostitution
or other immoral purposes.
Section 404 of the Hague Intercountry Adoption Act, which imposes
fines up to $250,000 and/or 5 years in prison, meets the OP-SC's
prohibition on the sale of children in connection with improperly
inducing consent as an intermediary for adoption.
State laws prohibit prostitution, pimping, pandering, procuring and
other related activities. And a provision of the Mann Act, 18 U.S.C.
Sec. 2421, generally prohibits transporting a person across foreign or
state borders for purposes of prostitution, and a separate provision,
Sec. 2423(a), specifically prohibits transportation across foreign or
state borders of any individual under 18 with the intent that the
``individual engage in prostitution or in any sexual activity for which
any person can be charged with a criminal offense, or attempts to do
so.'' The punishment is fines and/or imprisonment up to 15 years. Other
provisions with comparable penalties prohibit coercing and enticing
persons to travel across state lines for prostitution or for any sexual
activity for which any person may be charged with a crime (Sec. 2422),
and travel with intent to engage in any sexual act with minor
(Sec. 2423(a)).
In addition, federal and state criminal statutes address the OP-
SC's prohibition on child pornography. Federal law prohibits the
production, distribution, receipt and possession of child pornography
if produced using materials transported across interstate or foreign
commerce. (18 U.S.C. Sec. 2251-2252(A)). Penalties depend on the
provision, but can run up to 30 years or even life in prison. And each
state has its own laws addressing child pornography.
With respect to the OP-AC, State concludes current U.S. law meets
its standards. Specifically, the U.S. does not permit compulsory
recruitment of any person under 18 for any military service. Under 10
U.S.C. Sec. 505(a), the United States does not accept voluntary
recruits under age 17. And the United States is prepared to take all
feasible measures to ensure that persons under 18 do not take a direct
part in military hostilities, and can do so without undermining
military readiness.
Although both Optional Protocols are thus consistent with U.S. law,
the Administration has recommended a number of understandings and
declarations in connection with U.S. ratification. These understandings
and declarations were first presented subsequent to the ABA's policy
urging ratification of the two Optional Protocols, and so were not
subject to the ABA's formal review process. However, in my personal
view, these understandings or declarations are generally appropriate
and noncontroversial.
Notwithstanding that U.S. law already reflects the Protocols'
requirements, U.S. ratification is critical to the extent the U.S.
wants to demonstrate real global leadership on these issues. The
success of both Protocols will be judged by their implementation rather
than ratification. However, it is only through ratification that the
United States can help compel a truly global effort towards realizing
the objectives of these Protocols.
The horror of trafficking, child prostitution, child pornography
and child soldiering is the anguish and suffering inflicted upon
children preyed upon and betrayed by the very people they look to for
protection. These children are robbed of their freedom, their
childhood, their hope and their humanity, and there is nothing more
wrong than that, legally or otherwise. The United States should do
everything in its power to abolish these evils, and back up
ratification of both protocols with strong, decisive action, taken in
concert with other nations.
Thank you.
__________
Responses to Additional Questions for the Record Submitted to Various
Witnesses and Government Agencies
Responses of the Departments of State, Defense and Justice to
Additional Questions for the Record Submitted by Senator Joseph R.
Biden, Jr.
Question 1. In submitting the Protocols to the Senate, the Clinton
administration recommended that the Senate include several
understandings and declarations in the resolution of advice and
consent. Does the Bush administration support these recommendations
without change?
Answer. Yes, the Bush administration supports the Understandings
and Declarations presented in the transmittal package. We do not seek
any changes to the language provided.
Question 2. Was the testimony today coordinated and approved by the
affected departments of the Executive Branch?
Answer. Yes. The testimony also reflects the independent views and
judgments of the various affected departments, all of which supported
these treaties.
Question 3. Are there any confidential or classified side
agreements or understandings between the United States and any other
signatories or negotiating partners of which the Committee should be
aware?
Answer. No.
Question 4. Are there any statements by the U.S. delegation
pertinent to the meaning or interpretation of treaty terms which are
not contained in the Executive Branch's submittal to the Senate?
Answer. No. All significant statements are reflected in the
Executive Branch's submittal to the Senate, or in testimony on behalf
of the treaties.
Question 5. Are there any significant statements in the preparatory
work of the treaty (traveux preparatories) to which you would direct
the Committee's attention?
Answer. All significant statements are reflected in the Executive
Branch's submittal to the Senate, or in testimony on behalf of the
treaties.
Question 6. Please explain why, as a matter of law, the United
States may become a party to the Protocols even though it is not a
party to the underlying Convention on the Rights of the Child?
Answer. As discussed in the Executive Branch's submittal to the
Senate, Article 9 of the Children in Armed Conflict Protocol is subject
to ratification or open for accession by any State, i.e., it is not
limited to parties to the Convention on the Rights of the Child. Thus,
the United States is eligible to become a party to the Children in
Armed Conflict Protocol even though it has not ratified the Convention.
Similarly, Article 13 of the Sale of Children Protocol is subject
to ratification or open for accession by any State that is a party to
the Convention on the Rights of the Child, or has signed it. Thus, the
United States is eligible to become a party to the Protocol because it
signed the Convention in February of 1995.
To reflect the fact that both Protocols are independent
international agreements, the following understanding has been
recommended to accompany the U.S. instrument of ratification for each
Protocol:
``The United States understands that the Protocol constitutes
an independent multilateral treaty, and that the United States
does not assume any obligations under the Convention on the
Rights of the Child by becoming a party to the Protocol.''
Question 7. Each Protocol provides for amendments. Does the
Executive Branch commit to submit amendments approved by the UN General
Assembly to the Senate for its advice and consent?
Answer. Any amendment or modification of the Protocols would enter
into force with respect to the United States only pursuant to the
treaty-making power of the President, by and with the advice and
consent of the Senate, as set forth in Article II, Section 2, clause 2
of the Constitution of the United States.
Question 8. Each Protocol requires States Parties to submit
periodic reports to the Committee on the Rights of the Child
established by the underlying Convention. Does the Committee have any
enforcement power?
Answer. No. As explained in the Executive Branch's submittal to the
Senate the Protocols grant the Committee on the Rights of the Child no
authority other than receiving reports and requesting additional
information relevant to the implementation of the protocols. During the
negotiations, States rejected proposals for language that would have
permitted the Committee to, inter alia, hold hearings, initiate
confidential inquiries, conduct country visits, and transmit findings
to the concerned State Party.
______
Responses of the Departments of State and Justice to Additional
Questions for the Record Submitted by Senator Joseph R. Biden, Jr.
questions with regard to the protocol on the sale of children
Question 1. What is the legal basis for ``suspending'' an
obligation, as envisaged by the proposed declaration with regard to
Article 4(1)? What precedents are there in recent U.S. practice for
such an act?
Answer. The legal basis for the proposed declaration would be the
condition in the Senate's resolution of advice and consent and the
decision of the President to ratify the Protocol subject to that
condition. Since existing United States law does not provide for
criminal jurisdiction over some of the offenses identified in Article
3(1) when such offenses are committed on board a ship or aircraft
registered in the United States, legislation will be necessary to fill
the gaps. In order to proceed with ratification before enactment of
that legislation and to protect the United States against a charge of
non-compliance in regard to Article 4(1) pending enactment of the
legislation, the declaration would make clear that until the condition
was fulfilled, the United States would not be bound by the obligation
in Article 4(1) to the extent that its law was not fully in compliance
with that article.
Question 2. Article 5(2) provides that a State Party may consider
this Protocol as a legal basis for extradition with respect to offenses
covered by it in a case where it has no extradition treaty with the
requesting State Party. The United States generally does not extradite
criminal suspects in the absence of a bilateral extradition treaty.
Does the Executive Branch intend to require the existence of a
bilateral extradition treaty in cases under this Protocol?
Answer. Yes. The United States would not use these Conventions as
an independent legal basis for extradition from the United States in
cases where the United States has no extradition treaty with another
State Party seeking extradition. We will continue our practice of
extraditing persons under the authority of bilateral extradition
treaties, in conjunction with multilateral conventions, and other
agreements as applicable.
Question 3. The proposed understanding with regard to Article 2(c)
focuses on the definition of child pornography in that article. The
understanding states that the term means ``visual representation'' of a
child, ``engaged in real or simulated sexual activities.'' Is this
``visual representation'' standard the same standard used in U.S. law?
Answer. Yes. As is explained more fully in the Executive Branch's
submittal to the Senate, 18 U.S.C. Sec. 2251 establishes as criminal
offenses the use, enticement, employment, coercion or inducement of any
minor to engage in ``any sexually explicit conduct for the purpose of
producing any visual depiction'' of that conduct. That provision
further prohibits the transportation of any minor in interstate or
foreign commerce with the intent that the minor engage in sexually
explicit conduct for the purpose of producing any visual depiction of
such conduct. Parents, legal guardians and custodians are punishable
under this provision if they permit a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of
that conduct and the parent or guardian knows or has reason to know it
will be transported or has been transported in interstate or foreign
commerce. The provision also subjects to criminal penalty those who
produce and reproduce the offending material, as well as those who
advertise seeking/offering to receive such materials or seeking/
offering participation in the visual depictions of minors engaged in
sexually explicit conduct.
Federal law also prohibits (1) the transfer, sale, purchase and
receipt of minors for use in production of visual depictions of minors
engaged in sexually explicit conduct, 18 U.S.C. Sec. 2251A; (2)
knowingly transporting, shipping, receiving, distributing, or
possessing any visual depiction involving a minor in sexually explicit
conduct, 18 U.S.C. Sec. Sec. 2252 and 2252A; (3) the use of a minor to
produce child pornography for importation into the United States, and
the receipt, distribution, sale or possession of child pornography
intending that the visual depiction will be imported into the United
States, 18 U.S.C. Sec. 2260. For purposes of these statutes, minor is
defined as anyone under age 18. 18 U.S.C. Sec. 2256(1).
Sexually explicit conduct is defined in these federal statutes as
``actual or simulated--(A) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex; (B) bestiality; (C) masturbation;
(D) sadistic or masochistic abuse; or (E) lascivious exhibition of the
genitals or pubic area of any person.'' 18 U.S.C. Sec. 2256(2).
Further, each state has enacted laws addressing child pornography.
The precise scope of these statutes vary from state to state; however,
they all prohibit the visual depiction by any means of a child engaging
in sexually explicit conduct. While the exact wording of the statutes
may differ, all state statutes address the following three areas: (1)
production: employment or use of a minor to engage in or assist in any
sexually explicit conduct for the purpose of producing a depiction of
that conduct; (2) trafficking: distributing, transmitting or selling
child pornography; and (3) procurement: inducing or persuading a minor
to be the subject of child pornography.
Hence, both federal and state law cover the ``visual
representation'' of a child, ``engaged in real or simulated sexual
activities.''
Question 4. What is the rationale for the proposed understanding
related to Article 2(a)? The stated purpose is that it is needed to
clarify the definition. What about the definition is unclear? What
circumstances is the proposed understanding designed to address?
Answer. The Protocol broadly defines the sale of a child as a
transfer from a person or group of persons to another for remuneration
or other consideration. Since this could conceivably be construed to
include lawful transfers, the United States' understanding is intended
to make clear that the definition is only intended to reach transfers
where the person receiving the child does not have a lawful right to
custody and, through the transfer, gains the ability to exercise
control over the child.
Question 5. Article 3(1) requires parties to ensure that the acts
covered by the article are ``fully covered'' under its criminal or
penal law, whether these offenses are committed domestically or
transnationally.'' What does ``committed trasnationally'' mean in this
context?
Answer. The terms ``domestically or transnationally'' need to be
read together. During the negotiations some delegations proposed the
adoption of universal jurisdiction for the Protocol. However,
delegations finally concluded that the assertion of such broad
jurisdiction for the offenses covered by the Protocol was not
appropriate. In contrast, the text finally adopted requires a State
Party to criminalize the stated offenses when they occur entirely in
that State (i.e., domestically) and when they involve conduct committed
in that State and another State (i.e., transnationally). This
understanding of the term ``transnationally'' is also confirmed by
Article 4, which requires the United States to establish jurisdiction
only with respect to conduct that occurs in its territory.
Accordingly, the use of the term ``transnationally'' does not
obligate the United States to assert jurisdiction over offenses that
occur wholly outside its territory. Subject to the proposed
understandings and declaration, the United States can prosecute all of
the offenses under Article 3 committed in its territory, irrespective
of whether the conduct is entirely domestic in nature, or part of a
course of conduct that is transnational in nature.
Question 6. In the proposed understanding relating to Article
3(1)(a)(ii) (relating to the Hague Convention), is not the second
sentence a reservation? If so, should it be styled as such?]
Answer. No. The fact that the United States has not yet ratified
the Hague Convention on Protection of Children and Co-operation in
respect of Intercountry Adoptions does not require that it take a
reservation to Article 3(a)(ii) of the Protocol. Article 3(a)(ii),
which was based upon a joint U.S. and Egyptian proposal, obligates
States Parties to criminalize ``improperly inducing consent, as an
intermediary, for the adoption of a child in violation of applicable
international legal instruments on adoption.'' The term ``applicable''
when used in reference to international instruments refers only to
those instruments to which the state is a party. Therefore, the plain
meaning of Article 3(a)(ii) is that States Parties have an obligation
to criminalize ``improperly inducing consent as an intermediary'' if
they are also already parties to an international instrument that bars
such conduct.
Article 3(a)(ii) is drawn from Article 4(c)(3) of the Hague
Convention on Protection of Children and Co-Operation in Respect of
Inter-country Adoptions (Hague Convention), adopted May 29, 1993, which
requires that an adoption within the scope of the Convention shall take
place only if the competent authorities of the State of origin
determine, inter alia, that consent has not been induced by payment or
compensation of any kind. During the negotiations of the Sale of
Children Protocol, both Japan and the United States stated their
understanding that ``applicable international instruments on adoption''
meant the Hague Convention and that since they were not parties to that
instrument, they would not be bound to penalize the conduct barred by
the Hague Convention, i.e., improperly inducing consent. These
understandings are reflected in the negotiating record of the last
session. No State stated a contrary understanding.
On September 20, 2000, the United States Senate gave its advice and
consent to ratification of the Hague Convention. The Executive Branch
intends to deposit the instrument of ratification for that Convention
once regulations for implementation of the Convention and the
Intercountry Adoption Act are in place and other preparations for
implementation of the law have been completed. The implementing
legislation for the Hague Convention criminalizes an intermediary's
knowingly and willfully inducing consent by offering or giving
compensation for the relinquishment of parental rights. See 42 U.S.C.
Sec. 14944. This legislation will come into force at the time the
United States ratifies the Hague Convention.
Question 7. What is the scope of the obligation under Article 10 to
provide assistance to other nations?
Answer. Article 10(4) of the Sale of Children Protocol provides
that States Parties ``in a position to do so'' shall provide financial,
technical or other assistance through existing multilateral, regional,
bilateral or other programs. This language was specifically designed to
reserve to contributing States the determination of what specific
assistance they might provide under the Protocol. The protocol will not
create any financial obligation for U.S. taxpayers since the Protocol
does not require States Parties to provide a specific type or amount of
assistance.
As is explained more fully in the transmittal memorandum, Article
10 is consistent with the U.S. commitment to bring about an end to the
sexual exploitation and trafficking in children. Consistent with the
provisions of Article 10(1), the United States regularly engages in
bilateral and multilateral efforts to deter and prevent the increased
international traffic in children for labor and sexual exploitation.
With respect to Articles 10 (2) and (3), the United States is committed
to working with other governments to address the root causes of these
crimes and to developing rehabilitation approaches that are effective.
The Sale of Children Protocol should serve as a means of encouraging
such programs and constitute an important tool for increasing
assistance to children who are victims of sexual exploitation.
______
Responses of the Department of Defense to Additional Questions for the
Record Submitted by Senator Joseph R. Biden, Jr.
questions with regard to the child soldiers protocol
Question 1. Have the Joint Chiefs of Staff considered this Protocol
and its effect on U.S. military readiness? Have they closely reviewed
the proposed understanding on Article 1?
Answer. Yes. Secretary of Defense and the Joint Chiefs of Staff
have assessed that ratification of the Protocol would not affect their
ability to carry out their national security missions.
Question 2. What preparations have been made for the implementation
of Article 1 of the Protocol by the Office of the Secretary of Defense
and the military services? Can you outline how you anticipate that it
will be implemented?
Answer. Should the United States ratify the Protocol, the Services
will promulgate implementation plans, as approved by the Secretary of
Defense, that both fulfill U.S. commitments under the Protocol and
ensure there is no adverse affect on each Service's military readiness.
The Protocol gives the Services sufficient leeway to assign 17-year-
olds (once they are fully trained) to their units and to then deploy
these personnel on a wide variety of operational assignments, so long
as we take ``all feasible measures'' to ensure these personnel do not
take ``a direct part in hostilities.''
Question 3. During the negotiations, the U.S. delegation made a
statement about its understanding of the obligation under Article 1.
Did other delegations respond to this statement, and if so, how?
Answer. No other delegation disputed the U.S. understanding of the
obligation contained in Article 1 of the Protocol. Some other
delegations expressed disappointment that the Protocol did not bar
``indirect'' participation in hostilities and that the discretionary
power granted to States through use of the term ``feasible measures''
weakened the Protocol. The Russian delegation acknowledged that since
States were not required to prohibit participation, but only called on
to take ``all feasible measures'' to prevent such participation, the
Protocol left States open to the possibility in any emergency of
involving persons under 18 years of age in hostilities. We agree with
the Russian interpretation. When it signed the Protocol, the United
Kingdom stated the following declaration:
The United Kingdom understands that article 1 of the Optional
Protocol would not exclude the deployment of members of its
armed forces under the age of 18 to take a direct part in
hostilities where: (a) there is a genuine military need to
deploy the unit or ship to an area in which hostilities are
taking place; and (b) by reason of the nature and urgency of
the situation: (i) it is not practicable to withdraw such
persons before deployment; or (ii) to do so would undermine the
operational effectiveness of their ship or unit, and thereby
put at risk the successful completion of the military mission
and/or the safety of other personnel.
This understanding is consistent with the U.S. view discussed in
the administration's submittal letter.
Question 4. Are there any regulations or Department (or service)
directives with regard to the provisions of Section 505(a) of Title 10?
Answer. In addition to Section 505(a) of the U.S. Code establishing
the minimum and maximum age for voluntary enlistment, there also is a
DOD Directive, a Military Entrance Processing Command directive, a
Joint regulation, and Service Directives that set forth the age
requirements (minimum and maximum) for enlistment.
Question 5. The proposed understanding related to Article 3(2)
indicates that each person recruited into the military ``receives a
comprehensive briefing and must sign an enlistment contract which,
together specify the duties involved in military service.'' Please
summarize the nature of the briefing and the contract and information
contained therein.
Answer. The Military Entrance Processing Command (MEPCOM) gives
each applicant a briefing that outlines Title 10, applicable
regulations, and the enlistment form (DD Form 4). This briefing is
outlined in MEPCOM Regulation 601-23, and the regulation also includes
a list of questions that each applicant must be asked (e.g., you
understand that you are joining the Army for 6 years). The briefing
also defines fraudulent enlistments and its associated penalties.
Question 6. The proposed understanding related to Article 3(2)
states that ``[a]ll recruits must provide reliable proof of age before
their entry into the military service.'' What measures are taken to
ensure that proof of age presented is reliable? Is this requirement
made of ``all recruits'' or only those who appear to be around age 18
or younger?
Answer. The Military Entrance Processing Command (MEPCOM) has
programs that check to ensure that the date of birth entered by a
recruiter falls into the age window outlined by Title 10, MEPCOM
regulations, and other joint regulations. Additionally, each recruiter
is required to obtain an original (or certified) government document
that states an individual's age. Typically, this is an original birth
certificate. If the individual is 17 years old, the recruiter is
required to witness both parents' signatures. If a parent is divorced,
then only one signature is required provided the custodial parent can
produce the original (raised seal) divorce decree.
Question 7. What is the scope of the obligation under Article 6(2)?
Answer. Article 6(2) provides that States Parties ``undertake to
make the principles and provisions of the present Protocol widely known
and promoted by appropriate means, to adults and children alike.'' The
provision is phrased generally, and States Parties do not assume
detailed ``obligations'' under the protocol with respect to Article
6(2). If the Senate provides advice and consent to ratification, the
administration intends to take appropriate measures to ensure that the
provisions of the Protocol become widely known. Additionally, the
Department of Defense would issue appropriate internal directives
providing implementation guidance relating to the Protocol's
provisions.
______
Responses of the Department of State to Additional Questions for the
Record Submitted by Senator Joseph R. Biden, Jr.
Question 8. What is the scope of the obligation under Article 7?
Answer. Article 7(2), like Article 10(4) of the Sale of Children
Protocol, specifies that States Parties ``in a position to do so''
shall provide financial, technical or other assistance through existing
multilateral, bilateral or other programs. This language was
specifically designed to reserve to contributing States the
determination of what specific assistance they might provide under the
Protocol. The protocol will not create any financial obligation for
U.S. taxpayers since the Protocol does not require States Parties to
provide a specific type or amount of assistance.
Article 7 reflects the U.S. commitment to assist in bringing an end
to the tragedy of child soldiers through international cooperation and
assistance among concerned States Parties and relevant international
organizations. The United States has contributed substantial resources
to programs aimed at reintegrating child soldiers into society and is
committed to continue to develop rehabilitation approaches that are
effective in addressing this seriously difficult problem. The United
States actively supports activities to assist children affected by war,
including demobilization, rehabilitation and integration into civilian
society. The Children in Armed Conflict Protocol should serve as a
means for encouraging such programs and constitute an important tool
for increasing assistance to children who are victims of armed
conflict.
______
Responses of the Departments of State, Defense and Justice to
Additional Questions for the Record Submitted by Senator Jesse Helms
questions for all first panel witnesses
Question 1. Will this protocol have any impact on the United States
Armed Forces ability to enlist 17-year-olds, or on the military's
ability to recruit at high schools, sponsor JROTC programs, or
participate in other activities involving Americans who are not yet
eighteen?
Answer. No. As Deputy Assistant Secretary of Defense for
Negotiations Policy, Marshall Billingslea, stated during his testimony,
U.S. ratification of the Protocol would have no effect on U.S. military
recruiting practices. The current U.S. military practice, which
comports with U.S. law (10 U.S.C. Sec. 505), sets 17 as the minimum age
for voluntary recruitment, provided parental consent is obtained. This
would not change if the United States ratifies the Protocol.
Similarly, nothing in the Protocol would prohibit the U.S. military
from continuing to recruit in high schools, sponsor JROTC programs, or
participate in other activities involving Americans who are not yet 18.
The JROTC programs and other activities entail no commitment of any
kind to serve in the U.S. military, participants do not sign an
enlistment contract, and participants are not members of the U.S. Armed
Forces. Voluntary recruitment into the armed forces applies solely to
an actual commitment to serve, such as signing an enlistment contract.
Question 2. A United Nations report on Child Soldiers, the
preparation of which was assisted by Amnesty International, makes the
following allegations against the United States:
1) Recruiters with the Delayed Entry Program (DEP) often harass,
intimidate and threaten young people to enlist and or keep their DEP
commitment. They cite a 1999 investigation by an Atlanta TV station for
this evidence. (According to DOD statistics, in 1998 between 11 and 19
percent of DEP enlistees as to be released.)
2) Girls are vulnerable to sexual harassment by recruiters. In
1999, a Washington state school district banned recruitment in schools
after allegations of sexual harassment by recruiters.
3) The report is extremely critical of military training programs
and schools. They cite the Young Marines program (with participants as
young as 8 years old), and JROTC. JROTC, although not an official
recruiting tool, is accused by the report of engaging in this activity
as well as promoting violence in schools. Furthermore, JROTC is
criticized for its disproportionate number of minority participants and
programs in poor schools.
Why should the United Stated sign up to a protocol whose chief
sponsors and proponents make these misleading charges about our
country, and attempt to make a comparison or link between the
recruiting policies of countries such as the U.S., Canada, and Britain,
and the forced conscription of 8 and 10-year-olds in Africa and East
Asia?
Answer. It is our understanding that the referenced report was not
prepared by the United Nations. It was instead prepared by a non-
government organization, the Coalition to Stop the Use of Child
Soldiers. We do not find the allegations in this report concerning the
United States or other countries to be credible.
Question 3. The authors of this Protocol, as well as the U.N.,
understand the Protocol to read that 17-year-old soldiers functioning
in a support role in a combat zone, such as driving a truck
transporting supplies to the front, are ``participating in
hostilities.'' I am aware that the Pentagon has a different
interpretation of this Article of the Protocol, but if the rest of the
world reads it this way, then it is quite possible that the U.S. will
be charged with violating the Protocol, and that U.S. Commanders will
be held responsible. Would you agree?
Answer. As pointed out above, the Protocol does not contain any
provision that would permit States to be charged with violating the
Protocol. Nor does the Protocol authorize the trial of any person
before an international criminal tribunal for a violation of the
protocol or include any mechanism for cooperation in prosecution before
international tribunals.
Furthermore, there is no legitimate basis for challenging the U.S.
proposed understanding concerning ``direct participation in
hostilities'' as used in Article 1. That understanding is based upon
the well understood meaning of the term in the law of armed conflict.
The term ``direct'' has been understood in the context of treaties
relating to such law of armed conflict (including International
Committee of the Red Cross (``ICRC'')) commentaries on the meaning of
the provisions of Protocol I to the Geneva Conventions) to mean a
direct causal relationship between the activity engaged in and the harm
done to the enemy at the time and place where the activity takes place.
The standard recognizes that there is no prohibition concerning
indirect participation in hostilities or forward deployment.
Throughout negotiations with respect to Article 77(2) of Protocol I
to the Geneva Conventions, Article 38(2) of the Convention on the
Rights of the Child, and Article 1 of the Children in Armed Conflict
Protocol (which all use the same terminology--``direct participation in
hostilities''), various delegations, as well as the ICRC, repeatedly
attempted to remove the reference to ``direct.'' However, other
delegations, including the United States, insisted that there should be
no deviation from existing treaties using the same terminology. For
example, during negotiation of the Convention on the Rights of the
Child, the ICRC explained its position in the Working Group as follows:
Likewise, the Working Group could have strengthened
protection by removing the word ``direct.'' The ICRC suggested
this too during the Diplomatic Conference but the proposal was
not approved. This being the case, it can reasonably be
inferred from the present Article 20 of the Draft Convention
that indirect participation, for example gathering and
transmitting military information, transporting weapons,
munitions and other supplies is not affected by the provision.
At the conclusion of the Children in Armed Conflict Protocol
negotiations, a number of delegations expressed disappointment that the
Protocol did not bar ``indirect'' participation in hostilities.
However, we consider crucial the fact that the Protocol explicitly
applies only to ``direct'' participation in hostilities.
Question 4. The U.N. and proponents of this Protocol, such as
Amnesty International, contend that any 17-year-old soldier deployed to
a combat zone regardless of whether he or she is in a combat unit, or
in the front or rear, would constitute a violation of the Protocol.
They argue that the Geneva Convention and its additional protocols
define combatants, under International Law, as members of a nation's
armed forces. And as such, they can lawfully kill or be killed.
Therefore, putting a minor in a situation in which they can be lawfully
killed--even if they are not in a situation where they will likely be
engaged in combat--would constitute a violation of the Protocol. What
are your thoughts on this matter?
Answer. The Protocol places no geographical limits on where 17-
year-old servicemembers may be deployed. It simply requires that
parties take all feasible measures to ensure that servicemembers under
18 do not take a direct part in hostilities. This standard does not
prohibit 17-year-old servicemembers from being forward deployed, from
taking an indirect part in hostilities, or from taking a direct part in
hostilities under exceptional circumstances.
During the Protocol negotiations, a number of states and NGOs took
the position that states should ensure that participation in armed
conflict did not occur below the age of 18. The United States and other
delegations pointed out that if individuals under the age of 18 were
permitted to enter the military, from a practical and logical
standpoint states could not ensure that they would not take part in
hostilities, since during the time of war, members of the armed forces
are lawful subjects of attack no matter where they are located.
Ultimately, the compromise reached requires that States Parties take
``all feasible measures to ensure that members of their armed forces
under the age of eighteen do not take a direct part in hostilities.''
The understandings recommended by the administration in the
transmittal package adequately describe the U.S. interpretation of what
the phrases ``all feasible measures'' and ``direct part in
hostilities'' entail. Furthermore, the U.S. interpretations of these
terms correspond with the meanings attributed to them under the law of
armed conflict, as the U.S. delegation so stated without contradiction
during the negotiations.
Question 5. Should there be an additional understanding regarding
the meaning of our Article I obligations that ``direct participation''
does not include situations of self defense, such as the U.S. may face
in a peacekeeping operation, routine duty, or active patrol in the case
of a naval vessel?
Answer. There is no need for this. The declaration and
understandings recommended by the administration in the transmittal
package are adequate to protect U.S. interests under the Protocol.
Specifically, the Protocol's ``all feasible measures'' formula provides
U.S. commanders with the necessary flexibility they need to address
self-defense and other exceptional situations that might arise. The
Protocol in no way limits the U.S. inherent right of self-defense.
Question 6. Based on the views of some human rights groups have
written, a 17-year-old in uniform constitutes a legitimate target (a
combatant). And because under the Geneva convention combatants can be
legally killed, the U.S. would be in violation of the Protocol for
placing a 17-year-old in such a situation. Should, therefore, there be
an understanding that the U.S. is not in violation of the Protocol if
17-year-olds are physically in a theater of operations or war zone and
killed or harmed by the enemy not as a result of ``direct combat?''
Answer. There is no need for this. As stated more fully in the
response provided by Mr. Billingslea to a similar question, the
Protocol places no geographical limits on where 17-year-old
servicemembers may be deployed. It simply requires that States Parties
take all feasible measures, to ensure that servicemembers under 18 do
not take a direct part in hostilities. The understandings recommended
by the administration in the transmittal package adequately describe
the U.S. interpretation of what the phrases ``all feasible measures''
and ``direct part in hostilities'' entail. Accordingly, an additional
understanding is not necessary. That said, the Protocol does not
prohibit the deployment of 17-year-olds under the circumstances you
have listed.
----------
Responses of Amb. E. Michael Southwick and John G. Malcolm to
Additional Questions for the Record Submitted by Senator Jesse Helms
Question 1. The Child Trafficking Protocol, if brought into force
for the United States, would affect areas which are traditionally the
province of state and local governments. Is it your judgment that state
and local statutes and practices, coupled with recent federal
legislation on trafficking, is not already more than adequate to
achieve the goals set out in the Protocol? If not, why not?
On the other hand, if you conclude that our domestic legal
infrastructure is adequate, what possible concrete benefit to victims
will flow from subjecting state and local law enforcement and victim
assistance providers to scrutiny and criticism from an international
body of dubious credibility and no intelligent understanding of the
challenges they face?
Please coordinate your response with the U.S. Department of
Justice.
Answer. With the adoption of the conditions to ratification that
have been proposed, existing U.S. law, at the state, local and federal
level, would enable the United States to comply with the obligations
that the United States would assume as a Party to the Protocol.
Ratification of this Protocol could provide U.S. victims of the
offenses concerned concrete benefits. Most importantly, the Protocol,
by requiring that the offenses covered be included as extraditable
offenses in all bilateral extradition treaties, would help ensure the
prosecution of offenders who commit crimes in the United States and
flee to other countries. The Protocol also requires States parties to
offer the greatest measure of assistance in obtaining evidence for
investigation and prosecution of these crimes, which could facilitate
U.S. prosecution of those who victimize children in the United States.
In addition, to the extent that the crimes covered by the Protocol
may be perpetrated against U.S. citizens overseas, the Protocol
provides an enhanced legal framework for other States Parties to take
action against such offenses and to provide protection to victims.
The Administration is not concerned about explaining our state,
local and federal laws and practices in this area to the UN Committee
on the Rights of the Child. To the contrary, the Administrations
welcomes the opportunity to present the extensive law enforcement
measures and assistance practices that are present in the United
States.
Ratification of this Protocol will also give us standing to
address--and if necessary, to challenge--opinions of the Committee on
the Rights of the Child that interpret the Protocol in manners with
which we disagree. We would lack such standing if we were not a State
Party.
Question 2. Your response to Question #1 (which I submitted
previously) on the Child Soldier Protocol did not address the first
part of the question. How will United States participation in this
agreement halt the conscription of ``child soldiers'' in those areas of
Asia and Africa where this practice still exists?
Answer. Ratification of the Protocol on Children in Armed Conflict
will empower us to speak--and be heard--as a full participant in a
regime to end the scourge of the use and abuse of underage combatants.
This will have a positive effect.
As a witness before the Committee stated:
(1) The protocol has already made a difference. . . . Even
before the protocol was finalized, some countries began to
change their practices. In Colombia, thousands of children were
demobilized from the Colombian armed forces. In June of 2000,
President Kabila of the Democratic Republic of Congo issued a
decree calling for the demobilization of child soldiers from
the Congolese
army, and is cooperating with UNICEF to put rehabilitation
programs into place. . . .
(2) The protocol can influence non-governmental forces. . . .
Last February, over 2500 children between the ages of 13 and 18
were demobilized from the Sudan People's Liberation Army. From
May to November over 1500 children were demobolized from the
Revolutionary United Front in Sierra Leone. In these and other
cases, non-state forces can be persuaded to comply with
international standards to enhance their own credibility.
As our prior response to this question noted, several countries in
Africa and Asia, namely Bangladesh, the Democratic Republic of Congo,
Kenya, Sri Lanka and Vietnam, have already ratified this Protocol. If
the United States ratifies this Protocol it will encourage those States
to give effect to the commitments they have undertaken and encourage
other States to do the same.
Question 3. Your response to Question #3 (which I submitted
previously) on the Child Soldier Protocol states that the Protocol does
not ``authorize the trial of any person before an international
criminal tribunal for a violation of the protocol.'' Is it the position
of the administration that a violation of any provision of the Protocol
would not form a basis for prosecution before an international criminal
tribunal?
Your response also included a quote from the ICRC delegation to the
Working Group that appeared to define the term ``indirect
participation'' in the context of Article 20 of the Protocol. Does the
administration accept this definition of ``indirect participation'' and
is the definition complete without reference to forward deployments?
Answer. An alleged violation of a provision of the Protocol cannot
form a basis for prosecution before an international criminal tribunal.
Historically, international criminal tribunals, e.g., the Nuremberg
Tribunal, the International Criminal Tribunal for Yugoslavia, the
International Criminal Tribunal for Rwanda and the International
Criminal Court, provide for the prosecution of offenses specified in
the respective statutes establishing those tribunals. None of these
tribunals provides for the prosecution of any alleged violation of this
protocol.
The ICRC statement cited in our response by its own terms is not
exhaustive in describing the forms of ``indirect participation.'' The
ICRC said ``. . . it can reasonably be inferred from the present
Article 20 of the Draft Convention that indirect participation, for
example gathering and transmitting military information, transporting
weapons, munitions and other supplies is not affected by the
provision.'' (emphasis supplied) We believe that the Protocol permits
forward deployment of military personnel under 18 years of age so long
as all feasible measures are taken to ensure that they do not take a
direct part in hostilities.
Ambassador Southwick, Mr. Billingslea and Mr. Malcolm concur in
this response.
Question 4. Is your response to Question #3 (which was submitted
previously) by Senator Biden on the Child Trafficking Protocol affected
by the recent Supreme Court decision in Ashcroft v. Free Speech
Coalition, No. 00-795, 535 U.S. (2002), decided April 16, 2002?
Answer. No, the answer remains the same. Free Speech explicitly
recognizes the authority of the Justice Department to prosecute child
pornography cases in which actual children are depicted, and that is
the only type of child pornography that must be criminalized under the
Protocol.
Question 5. Do the Departments of Justice and State concur with the
responses of Mr. Billingslea to Questions #1 through 8 by Senator Helms
(which I submitted previously) and to Questions #1 and 2 of Senator
Boxer (also submitted previously) on the Child Soldier Protocol?
Answer. Yes.
__________
Responses of Amb. E. Michael Southwick and John G. Malcolm to Additional
Questions for the Record Submitted by Senator Joseph R. Biden, Jr.
Question 1. Biden question #2 (which I submitted previously) on the
Child Soldiers Protocol is unresponsive. The question posed was:
What preparations have been made for the implementation of Article
1 of the Protocol by the Office of the Secretary of Defense and the
military services? Can you outline how you anticipate that it will be
implemented?
Supplemental Answer. The Department of Defense is currently
reviewing how it would implement the Child Soldiers Protocol in the
event that the Senate elects to provide its advice and consent to
ratification of the treaty. Once the Department finalizes its review,
we would be pleased to brief the Committees on Foreign Relations and
Armed Services of the Senate.
Question 2. Biden question #4 (which I submitted previously) on the
Child Soldiers Protocol asked about DOD regulation and directives
related to Section 505(a) of Title 10 of the U.S. Code. The question
also asked for copies of these regulations, etc. Those copies were not
provided. The question as retyped by you folks omits that part of the
Biden question.
Answer. In addition to Section 505(a) of the U.S. Code establishing
the minimum and maximum age for voluntary enlistment, there also is a
DOD Directive, a Military Entrance Processing Command directive, a
Joint regulation, and Service Directives that set forth the age
requirements (minimum and maximum) for enlistment.
Supplemental response:
Copies of the following documents are attached [These documents are
in the Committee's files]:
1. Department of Defense Directive 1304.26 dated December 21,
1993, entitled ``Qualification Standards for Enlistment,
Appointment and Induction''
2. United States Military Entrance Processing Command
Regulation No. 601-23 dated May 13, 1997, entitled ``Personnel
Procurement, Enlistment Processing''
3. Army Regulation 601-270, Air Force Regulation 33-7, Marine
Corps Order P1100.75A dated November 20, 1999, entitled
``Military Entrance Processing Station (MEPS)''
4. Army Regulation 601-210 dated February 28, 1995, entitled
``Regular Army and Army Reserve Enlistment Program''
5. Commander, Navy Recruiting Command Instruction 1130.8F
dated February 28, 2000, entitled ``Navy Recruiting Manual-
Enlisted'' (Title page and Chapter 2)
6. Air Force Instruction 36-2002 dated April 7, 1999,
entitled ``Regular Air Force and Special Category Accessions''
7. Marine Corps Order P1100.72B dated December 10, 1997,
entitled ``Military Personnel Procurement Manual, Volume 2,
Enlisted Procurement'' (Short Title: MPPM ENLPROC)