Child in a rebel camp in the Central African Republic. Photo courtesy of Pierre Holtz / UNICEF CAR.

For the past year, American tax dollars funded military assistance to four governments who use children to fight in their armed forces. On October 25, 2010, President Obama issued a waiver of penalties under section 404(a) of the Child Soldier Prevention and Accountability Act (CSPAA) of 2008 for Chad, the Democratic Republic of the Congo (“DRC”), Yemen, and the Sudan. The waiver means that these countries will continue to receive military aid from the United States despite their widespread use of child soldiers. President Obama determined that these countries are of particular importance for national security and that it was in the United States’ national interest to waive sanctions. These countries currently receive military aid from the U.S. to aid in special operations and counterterrorism missions, fund humanitarian efforts in Chad for Darfuri refugees, and assist Yemen in rebuilding its military capacity. Many human rights activists, however, argue that the waiver sends a message that counter-terrorism work takes precedence over human rights concerns.

In 2008, the United States passed the CSPAA, in order to encourage compliance with the Optional Protocol to the UN Convention on Rights of the Child on the Involvement of Children in Armed Conflict (Optional Protocol). The CSPAA is part of the larger human trafficking bill, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA). The act prohibits funding for countries known to recruit or use child soldiers; however, it permits a national interest waiver of the ban. Under the CSPAA, governments identified by the Department of State’s annual country reports on human rights as having military forces that recruit or use children in violation of existing international standards will be given two years to release the children within their ranks. During this period, the U.S. will only provide military aid that will specifically support that process. If child soldiers are still being used or recruited after the two year period ends, all forms of U.S. military assistance will be suspended.

The recruitment of child soldiers is a routine practice in Chad, the DRC, Yemen and the Sudan. In 2009, the government of Chad conscripted refugee children to use as combatants and guards in its clashes with rebel forces. Children were forced to carry heavy ammunition and supplies through difficult terrain in the DRC and hundreds of boys and girls were forced into the southern Sudanese army, despite a commitment by the Sudan People’s Liberation Army to release them. In Yemen, children are thought to comprise half the ranks of both the government forces and the opposing rebels.

State Department officials say that these countries are working to eliminate the use of child soldiers, but have had difficulty implementing policies that would end the practice. The Obama administration claims that engaging these militaries is the most effective way to encourage the reforms that would put an end to the use of child soldiers.The State Department further argues that ending military aid could negatively impact valuable military force modernization and human rights training.

Human rights groups are skeptical of the administration’s approach. Jo Becker, advocacy director for the children’s rights division at Human Rights Watch noted that by providing a blanket waiver of penalties, the U.S. is really giving up all of its leverage to force these countries to stop using child soldiers. This is especially significant given that the WWTVPRA already contains exemptions that allow continued U.S. funding for programs that directly target the problem of child soldiers or aid in the professionalization of armies. Therefore, the Obama administration did not need to waive the penalties under the CSPAA to continue to work toward force modernization and human rights reforms in these countries.

Critics of the waiver argue that the United States should use its influence to persuade countries to end their use of child soldiers through cooperation with international organizations and international legal agreements. All four of the countries in question have ratified the UN Convention on Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. In addition, Chad has ratified the African Charter on the Rights and Welfare of the Child (African Charter), and both Chad and the DRC have ratified the Rome Statute, which establishes the International Criminal Court and renders the use of child soldiers a prosecutable war crime. Both collectively and separately, these international agreements bar the recruitment and use of children as soldiers in armed conflict. Thus, Chad, Yemen, Sudan, and the DRC are non-compliant with their international obligations.

The UN Convention on the Rights of the Child and the African Charter create committees to monitor their implementation, but the functions of the committees are limited to collecting and reporting information on compliance. Nevertheless, the International Criminal Court has been prosecuting individuals, such as Thomas Lubanga Dyilo, former rebel leader of the DRC, on charges of recruitment and use of child soldiers. Since 2005, the International Criminal Court has investigated possible war crimes involving the use of child soldiers by the Sudan and the DRC. Additional charges and convictions stemming from the use of child soldiers have been pursued with the 2002 implementation of the Optional Protocol.

By waiving the penalties associated with using child soldiers, the U.S. is failing to meet its own obligations and failing to encourage other States to comply with the international laws protecting children. Instead the U.S. is focusing on maintaining strategic alliances. This posture undermines efforts to end the conscription of children into military forces around the world.