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Do As We Legislate, Not as We Do

Jamil Dakwar,
Director, ACLU Human Rights Program
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October 6, 2008

Last Friday, President Bush signed the Child Soldiers Accountability Act into law. The act criminalizes the recruitment and use of child soldiers, and gives the government the authority to deport or deny entry into the United States individuals who engage in such activities. This law would bring the United States into greater compliance with its treaty obligations,especially those under the Optional Protocol on the Involvement of Children in Armed Conflict, ratified by the U.S. in 2002.

While both the President and Congress deserve much credit for passing this historic and long-overdue bill, equal attention must be paid now to the U.S. government’s failure to protect the youth who have already been forced into armed conflict. The U.S. shamefully continues to detain alleged former child soldiers at Guantánamo and U.S.-run facilities in Iraq and Afghanistan without recognizing their juvenile status or observing relevant international juvenile justice standards.

In its own report, issued last May to the U.N. Committee on the Rights of the Child, the U.S. government revealed that approximately 2,500 youths under the age of 18 have been held in Guantánamo Bay and U.S.-run facilities overseas, in some cases for months and years without ever being charged with a crime. As of April 2008, there were approximately 500 youths being held in U.S.-run detention facilities in Iraq alone. The government report claims that it is holding Iraqi children in prison in order to educate them to “contribute positively to the future of Iraq.”

On November 8, the eyes of the world will be focused on Guantánamo for the start of one of two first-ever trials accusing former child soldiers with war crimes. Omar Khadr, a Canadian citizen held in Department of Defense custody since the age of 15, has been detained at Guantánamo on charges that include crimes he allegedly committed at the age of 10. The second trial, to be held next January, will be that of Mohammed Jawad, an Afghan national captured at the age of 16, a young man whose case has been marred by ethical and legal problems, problems that have even led the government’s prosecutor to resign in protest last month.

Both Khadr and Jawad have claimed that they were subjected to torture and abuse in U.S. custody. Last week, in the first decision of its kind, a military judge found that subjecting Mohammad Jawad to systematic sleep deprivation under Guantánamo’s infamous “frequent flyer” program “constitutes abusive conduct and cruel and inhuman treatment.” (PDF). The judge came close to determining that Jawad was subjected to torture but denied him the remedy of dismissing the charges, though he acknowledged that “other remedies are available to adequately address the wrong inflicted upon the accused, including, but not limited to, sentence credit towards any approved period of confinement, excluding statements and any evidence derived from the abusive treatment, and prohibiting persons who may have been involved in any improper actions against the Accused from testifying at trial.”

So far, Guantánamo military commissions have only produced one full trial. But for all we know, the prospective trials, held within a tainted system that lacks independence and allows for the admission of evidence obtained through torture, will only magnify the mockery that has been made of American values of justice, especially the long-held cornerstone of the right to a fair trial.

In order for the U.S. to claim the moral high ground on combating the phenomena of recruiting and using child soldiers abroad, it has to show moral leadership and commitment by dismantling its military commissions and providing justice and a humane solution to Khadr and Jawad, a solution that would include measures for rehabilitation and reintegration to society.