By David M. Crane
Friday, November 9, 2007
International Herald Tribune
SYRACUSE, New York:
It was a clear hot day. The meeting hall in the school for the
deaf located up-country near Makeni rippled with the heat of
over 500 persons. The meeting was one of many I conducted
throughout Sierra Leone to provide a vehicle for people to talk
about the war, the crimes, their pain and other issues related to our work. As I finished answering one question, a small arm
was raised in the middle of the hall. I walked back to the
student. He meekly stood up, head bowed, and mumbled loud
enough for those around him to hear, "I killed people, I am
sorry, I did not mean it." I went over to him, tears in my eyes,
hugged him and said, "Of course you didn't mean it. I forgive
you."
This exchange took place while I was in Sierra Leone as chief prosecutor of the international war crimes tribunal in West
Africa, the Special Court for Sierra Leone.
The young man was one of tens of thousands of children who
had been forced into combat against their will. I chose not to
prosecute any of them for the crimes they committed. It would
have been legally and morally wrong to do so.
Only in the past 10 years has the international community begun to grapple with this scourge. A report to the United Nations
secretary general in 1996 laid out a comprehensive program to
protect children during times of armed conflict. The introduction declared:
"More and more of the world is being sucked into a desolate
moral vacuum. This is a space devoid of the most basic human values; a space in which children are slaughtered, raped and maimed; a space in which children are exploited as soldiers;
a space in which children are starved and exposed to extreme brutality. . . There are few further depths to which humanity can sink."
A child soldier named Omar Khadr, a Canadian citizen, is about to be tried before the ad hoc military commission in
Guant?amo. He is charged with the killing of an American
soldier during a firefight in which Khadr himself was seriously
wounded. He was 15 at the time. Now, at the age of 20, after
years in detention as an "unlawful enemy combatant," Khadr is being tried for what he did as a child.
The use of children in warfare is not a new phenomenon.
Children have followed armies for centuries as support
personnel - pages, water carriers, drummers. In European
navies, boys were assigned to warships by noble parents to
embark on careers as officers; others were pressed into duty
as sailors.
With the advent of the various Hague rules governing weapons
in war in the late 19th and early 20th centuries, the rules of
warfare began to take on a universal status. With the two World Wars, attention shifted from weapons to the status of
non-combatants.
The founding of the United Nations in 1945 established a voice
for civilians in time of warfare, particularly for children. The
Geneva Conventions of 1949 were devoted to persons who are "out of the combat" - prisoners of war, the shipwrecked,
civilians. Children finally gained special protected under
international law.
However, the Cold War also saw the rise of Third-World
conflict, in which children were once again the victims. In the
1970s, the Geneva Conventions were revised to reflect the
realities of modern armed conflict. Once again the bar was
raised, and most states agreed to the new standards.
The protocols of 1977 specifically prohibited the use of children in armed conflict. Using children in conflict was not specifically defined as a crime, but the implication was this was a grave
breach of the Geneva Conventions.
The subsequent Convention on the Rights of the Child (CRC) of 1990 was more specific about the use of children in armed
conflict. By this time, the act of child recruitment as a crime had crystallized into international law.
The convention defines children as those below the age of 18, and among other things, it requires states to establish a
minimum age at which criminal responsibility may be assigned. An optional protocol admonishes armed groups - as distinct
from armed forces of the state - not to recruit or use children
under any circumstances.
The detention of juveniles is also covered by international
agreements. Juvenile offenders, like adult offenders, are to be
awarded prompt due process. A child has the right to timely
access to legal counsel, and the right to timely review of their
detention. Detention should only be used as a last resort, in
exceptional circumstances and for the shortest possible
duration. In detention, juveniles must be separated from adults.
Despite the political and legal recognition that child recruitment
is a universal crime, child recruitment has continued unabated. In 1996, the Marcel Report stunned the United Nations,
highlighting the full extent of the problem. Millions of children
died in the 1980s and 1990s. There were calls for action and a
plan began to evolve to monitor the recruitment of child soldiers.
In the late 1990s the world once again sat down and began to
develop a mechanism to prosecute war crimes and crimes
against humanity. The Rome Statute, which created the
International Criminal Court, specifically stated that the
recruitment of children under the age of 15 is a "serious
violation of international humanitarian law."
Yet the tragedy continues worldwide, particularly in Africa.
Forty-two armed groups in 11 countries were specifically
singled out in a UN report issued in February 2005. It called for monitoring and reporting of children in armed conflict to ensure
that the law is complied with worldwide.
Introducing a witness before the international tribunal in West
Africa, I described another tragedy in Sierra Leone's 10-year
tale of horror, this one from the Kono district:
"The rebels took his younger brother and himself to Kaiama
along with 13 other boys. The rebels lined the 15 children up
and offered them a choice: Join one line if they wanted to be a
rebel, another line if they wanted to be freed and allowed to go home. All 15 of these boys, and they were just boys, joined the line for freedom.
"It was the wrong choice. They were accused of sabotage to
the revolution. To keep them from escaping, each was held
down, screaming, and one by one had AFRC and/or RUF
carved into their chests with the blade of a sword. The witness was now just marked property and treated as such. He will be
in this very chamber to tell his horror story and show you his
scarred chest that to this very day bears the letters:
A-F-R-C R-U-F."
Omar Khadr, a 15-year-old Canadian, could have been that
child in Sierra Leone, but he was in Afghanistan, in similar
circumstances, not of his making, not under his control, in an
environment from which as a child there was no escape.
Legally, morally and politically the international community -
including the United States - has separated children from the
horrors of combat, to protect and nurture, to rehabilitate and
support; not to punish.
No child found in combat should be held liable for his or her
acts. That is the legal standard of the world community and of
this country. What will take place in Guant?amo in the coming weeks is wrong.
David M. Crane, professor of practice at the Syracuse University College of Law, was the prosecutor at the Special Court for Sierra Leone from 2002 to 2005.
Friday, November 9, 2007
International Herald Tribune
SYRACUSE, New York:
It was a clear hot day. The meeting hall in the school for the
deaf located up-country near Makeni rippled with the heat of
over 500 persons. The meeting was one of many I conducted
throughout Sierra Leone to provide a vehicle for people to talk
about the war, the crimes, their pain and other issues related to our work. As I finished answering one question, a small arm
was raised in the middle of the hall. I walked back to the
student. He meekly stood up, head bowed, and mumbled loud
enough for those around him to hear, "I killed people, I am
sorry, I did not mean it." I went over to him, tears in my eyes,
hugged him and said, "Of course you didn't mean it. I forgive
you."
This exchange took place while I was in Sierra Leone as chief prosecutor of the international war crimes tribunal in West
Africa, the Special Court for Sierra Leone.
The young man was one of tens of thousands of children who
had been forced into combat against their will. I chose not to
prosecute any of them for the crimes they committed. It would
have been legally and morally wrong to do so.
Only in the past 10 years has the international community begun to grapple with this scourge. A report to the United Nations
secretary general in 1996 laid out a comprehensive program to
protect children during times of armed conflict. The introduction declared:
"More and more of the world is being sucked into a desolate
moral vacuum. This is a space devoid of the most basic human values; a space in which children are slaughtered, raped and maimed; a space in which children are exploited as soldiers;
a space in which children are starved and exposed to extreme brutality. . . There are few further depths to which humanity can sink."
A child soldier named Omar Khadr, a Canadian citizen, is about to be tried before the ad hoc military commission in
Guant?amo. He is charged with the killing of an American
soldier during a firefight in which Khadr himself was seriously
wounded. He was 15 at the time. Now, at the age of 20, after
years in detention as an "unlawful enemy combatant," Khadr is being tried for what he did as a child.
The use of children in warfare is not a new phenomenon.
Children have followed armies for centuries as support
personnel - pages, water carriers, drummers. In European
navies, boys were assigned to warships by noble parents to
embark on careers as officers; others were pressed into duty
as sailors.
With the advent of the various Hague rules governing weapons
in war in the late 19th and early 20th centuries, the rules of
warfare began to take on a universal status. With the two World Wars, attention shifted from weapons to the status of
non-combatants.
The founding of the United Nations in 1945 established a voice
for civilians in time of warfare, particularly for children. The
Geneva Conventions of 1949 were devoted to persons who are "out of the combat" - prisoners of war, the shipwrecked,
civilians. Children finally gained special protected under
international law.
However, the Cold War also saw the rise of Third-World
conflict, in which children were once again the victims. In the
1970s, the Geneva Conventions were revised to reflect the
realities of modern armed conflict. Once again the bar was
raised, and most states agreed to the new standards.
The protocols of 1977 specifically prohibited the use of children in armed conflict. Using children in conflict was not specifically defined as a crime, but the implication was this was a grave
breach of the Geneva Conventions.
The subsequent Convention on the Rights of the Child (CRC) of 1990 was more specific about the use of children in armed
conflict. By this time, the act of child recruitment as a crime had crystallized into international law.
The convention defines children as those below the age of 18, and among other things, it requires states to establish a
minimum age at which criminal responsibility may be assigned. An optional protocol admonishes armed groups - as distinct
from armed forces of the state - not to recruit or use children
under any circumstances.
The detention of juveniles is also covered by international
agreements. Juvenile offenders, like adult offenders, are to be
awarded prompt due process. A child has the right to timely
access to legal counsel, and the right to timely review of their
detention. Detention should only be used as a last resort, in
exceptional circumstances and for the shortest possible
duration. In detention, juveniles must be separated from adults.
Despite the political and legal recognition that child recruitment
is a universal crime, child recruitment has continued unabated. In 1996, the Marcel Report stunned the United Nations,
highlighting the full extent of the problem. Millions of children
died in the 1980s and 1990s. There were calls for action and a
plan began to evolve to monitor the recruitment of child soldiers.
In the late 1990s the world once again sat down and began to
develop a mechanism to prosecute war crimes and crimes
against humanity. The Rome Statute, which created the
International Criminal Court, specifically stated that the
recruitment of children under the age of 15 is a "serious
violation of international humanitarian law."
Yet the tragedy continues worldwide, particularly in Africa.
Forty-two armed groups in 11 countries were specifically
singled out in a UN report issued in February 2005. It called for monitoring and reporting of children in armed conflict to ensure
that the law is complied with worldwide.
Introducing a witness before the international tribunal in West
Africa, I described another tragedy in Sierra Leone's 10-year
tale of horror, this one from the Kono district:
"The rebels took his younger brother and himself to Kaiama
along with 13 other boys. The rebels lined the 15 children up
and offered them a choice: Join one line if they wanted to be a
rebel, another line if they wanted to be freed and allowed to go home. All 15 of these boys, and they were just boys, joined the line for freedom.
"It was the wrong choice. They were accused of sabotage to
the revolution. To keep them from escaping, each was held
down, screaming, and one by one had AFRC and/or RUF
carved into their chests with the blade of a sword. The witness was now just marked property and treated as such. He will be
in this very chamber to tell his horror story and show you his
scarred chest that to this very day bears the letters:
A-F-R-C R-U-F."
Omar Khadr, a 15-year-old Canadian, could have been that
child in Sierra Leone, but he was in Afghanistan, in similar
circumstances, not of his making, not under his control, in an
environment from which as a child there was no escape.
Legally, morally and politically the international community -
including the United States - has separated children from the
horrors of combat, to protect and nurture, to rehabilitate and
support; not to punish.
No child found in combat should be held liable for his or her
acts. That is the legal standard of the world community and of
this country. What will take place in Guant?amo in the coming weeks is wrong.
David M. Crane, professor of practice at the Syracuse University College of Law, was the prosecutor at the Special Court for Sierra Leone from 2002 to 2005.
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