Impunity Watch: Special Features

The Scourge of Child Soldiers: Lost Generations of Children Around the World are Victims of Warlords and Tyrants

By: David M. Crane
Professor at Syracuse University College of Law and Former Founding Chief Prosecutor for the UN Court for Sierra Leone (2002-2005)

They stood in the warm sun of the dry season. Seasoned combat veterans of years of conflict, their eyes darted nervously back and forth, glancing at me from time to time, not sure what to make of the situation they found themselves in. The breeze stirred the lush green trees of the bush upcountry in Sierra Leone, near Kabalah. United Nations peacekeepers fanned out around the perimeter nervously holding their weapons at high port.

The Chief Prosecutor of the Special Court for Sierra Leone was about to hold a town hall meeting with several hundred child soldiers who were now back in school trying to make some sense of their ruined lives. Standing before the prosecutor were murderers, rapists, mutilators and pillagers of all kinds, their average age around 15.

I took the bullhorn from one of the peacekeepers and asked them in Krio how they were all doing. They all mumbled "body fine." I stepped among them and for almost two hours talked to them and listened to them, developing a sense of what it must be like to be a member of what I call the lost generation of children in West Africa; children forced to kill their parents and then rip their way across the countryside in a whirlwind of terror the likes of which civilization rarely has seen, if at all.

They were afraid of me, and frankly I of them. These young men were clearly concerned that I was going to have them all arrested for war crimes and crimes against humanity. They knew what they had done and they also knew that I was well aware of the pain they had caused.

On that November day in 2002, I stood before them and told them I would not prosecute any child for what they may have done in the horror story that was Sierra Leone over those many years. I called them victims not criminals. Many wept, others stood open-mouthed, disbelieving what they were hearing. To many this was the only positive development in their lives. They were being given a chance to live, to make something better for themselves.

Though mandated within the tribunal's statute to prosecute a child who committed a war crime between 15 and 18 years of age, I chose not to as I felt that no child had the mental capacity to commit mankind's most serious crimes. These truly were victims of cynical warlords, tyrants and thugs exploiting their childhood for their own personal criminal gain.

I felt that international law was clearly on my side. Children found in these internal conflicts are as much the victims as the victims they abused. What needed to be done was to hold accountable the leadership that created the policy to recruit and enlist children as young as 6 years old into the various militia groups that fought in West Africa. This we did and for the first time in history, African warlords were tried and convicted of creating a lost generation of children, the child soldiers of West Africa.

The scourge of child soldiers is not a new phenomenon, however; in the past 20 years millions have been recruited and millions have been casualties of war. The United Nations has recognized this and has begun to take corrective action. The International Criminal Court has followed our example and is actively investigating and charging individuals for what they are doing to children in times of armed conflict. The trend is generally positive, yet there are wrinkles.

It is important to understand that child soldiers are found around the globe, not just in Africa. Children are recruited and brainwashed into fighting where instinctively they recoil. This is taking place in Iraq and in Afghanistan.

The "global war on terror," as the United States characterizes its fight against various jihadist factions, has netted children found in combat. Like their cousins in West Africa, they were enlisted or recruited under duress and forced to fight or be killed themselves. The net has them detained far from home in an infamous place called Guantanamo.

This year we will see the trial of the first child ever to be prosecuted as a war criminal by the United States in Guantanamo. The child, now a young man, was 15 at the time of the alleged crime he is charged with committing, yet the facts show that he had no choice after being taken by his family from Canada to Afghanistan several years ago. The child was very young and he had little option but to go with members of his family.

That child was Omar Khadr, a Canadian citizen. At 15 he was no more legally responsible for any crimes committed in combat than the children of Sierra Leone, which I chose not to prosecute. Omar Khadr is a victim of war.

The charges against him should be dropped and he should be sent home where he can be rehabilitated, not punished. Defence counsel alleges he is mentally years behind his now 20 years of age, as he has been incarcerated in a detention camp since 2002. One asks where is the outrage in all of this by right-thinking people? France has called for Khadr's release. Where is Canada?

On Feb. 12, the United Nations Security Council held an open debate on what type of harsher measures need to be used to discourage the use of children as soldiers, like Omar Khadr. This is an important discussion to be sure. The United Nations has reported that 58 parties to armed conflict in 13 countries are in violation of international standards that prohibit the use of children in combat. These countries can be found in several continents.

Just think of the suffering of children whose lives have forever been changed, even ruined. These lost generations of children will come back to haunt us all as they grow into dangerous adults, unable to read, write, having no sense of right or wrong, and in many instances don't even know who they really are or where they came from.

Have you ever looked into the eyes of a child who has no hope? I have and it will stay with me the rest of my life. I'll bet if I looked into the eyes of a young Canadian named Omar Khadr, I'd see the same sad look of a child who has no hope.

This article was originally published in The Star and republished here with the permission of the author.

Unforgivable Behavior, Inadmissible Evidence

By:  Morris Davis
New York Times Op-Ed Contributor

This article was originally published by the New York Times and was republished here with the permission of its author.

WASHINGTON, D.C., United States - Twenty-seven years ago, in the final days of the Iran hostage crisis, the C.I.A.'s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, "We  don't do stuff like that."

Today, Tom Ahern might have to say: "We don't do stuff like that very often."  Or, "We generally don't do stuff like that."  That is a shame. Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is "generally" honest or honest "quite often" means he lies. The mistreatment of detainees, like honesty, is all or nothing: We either do stuff like that or we do not. It is in our national interest to restore our reputation for the latter. (All opinions here are my own, and do not necessarily reflect those of the Air Force or Defense Department.)

Some accounts of detainee abuse in the war on terrorism are overblown, but others are not. After humiliating prisoners at Abu Ghraib by forcing them to strip naked and lie in a pile like a stack of firewood or simulating the drowning of detainees to persuade them to talk, we can no longer say we don't do stuff like that and we do not have to look far to see the damage. The disclosure last month of a manual for Canadian diplomats listing the United States as a country where prisoners might face torture, referring specifically to Guantánamo Bay, Cuba, was an embarrassment on both sides of the border.

During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders.

Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation.

We can start by renouncing cruel, inhuman and degrading treatment of detainees and unreservedly committing to uphold the Detainee Treatment Act, which passed Congress in 2005 but was diluted by a presidential signing statement. We must also reaffirm our adherence to the United Nations Convention Against Torture, which the Senate ratified in 1990.

Just as important, we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. There was some progress in recent weeks: the C.I.A.'s director, Gen. Michael Hayden, told Congress that the practice may be illegal under current law; the director of national intelligence, Michael McConnell, told a reporter, "Whether it's torture by anybody else's definition, for me it would be torture"; Attorney General Michael Mukasey, after being asked if waterboarding would be torture if done to him, said that "I would feel that it was"; and on Wednesday, Congress passed a law forbidding the C.I.A. to use waterboarding and other harsh techniques.

Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us.

Once we condemn and stop all waterboarding, what do we do in cases where it was conducted?  An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his "confession" as evidence in a death-penalty trial.

My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue - efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.

Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments.

That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced "confession," then whether a defendant endured waterboarding is immaterial in determining guilt or innocence.

There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, "We don't do stuff like that."

Morris Davis, an Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007.