A right to bear arms?

It’s a shame—it’s more than a shame—but if I were a seventeen-year old youth today in parts of Southern Sudan, say, or Somalia, I would get myself a gun as soon as I could. I’d join a guerrilla force or a militia—whatever it took. And if I were the responsible adult in my family I would consider it not just my right, but my obligation to acquire such means to defend myself, my weaker relatives, our livestock and grain stores. If a foreigner (or anyone else) told me that I was a child, and therefore had to be protected from military service, I’d laugh at them, as someone who clearly understood nothing about the conditions of life in my country.

The proposed extension of the UN Convention risks jeopardizing, in the name of children’s rights, this right to self-defence, a right which may include bearing arms. Western countries with representative governments have, in many cases, quite properly legislated this right away; but the situation is different where there is no effective state, where there is no other source of security. Such a situation is, of course, not a good thing. And those who fantasize about bringing about a similar antinomian state of affairs in countries where the rule of law currently prevails (as militiamen and survivalists in the United States appear to do) are terrifying in their irresponsibility. But we have to recognise that this is what has come to pass in many of the countries in the disaster zone, in Africa and elsewhere. In such places martial skills may be necessary for survival.

War spoils people. And youths with guns may become monsters; they may well terrorize, rather than defend, local people. It would be a far better thing if they could learn the arts of peace. Yet none of this is an argument for forcing seventeen year olds into the Procrustean bed of the Child Rights Convention. Human rights campaigners need more realistic and culturally convergent ways of tackling the problem. Transparency in the international arms trade is the first desideratum. Far stricter controls on the spread of arms the second. And with respect to rights, the key issue when considering the involvement in military activity of sixteen year olds and over should not be their age; it should be whether they are volunteers or not. Many child soldiers are forcibly recruited and this, of course, is a manifest abuse. But it is the fact of conscription that is the key issue, not chronological age. Whether the victims are sixteen or eighteen—or twenty-one—is of lesser importance.

Most armies in the world, not just in Africa, would be in breach of the new age limit on recruitment that is proposed in the additional protocol to the Convention on the Rights of the Child. Although there is certainly a case for establishing principles of good practice in military recruitment, principles that well-ordered countries can aspire to, the danger of enacting them into international law, a body of law that is already more honoured in the breach than the observance, is that they will distract from the more fundamental and unambiguous issue of forced recruitment. Forced recruitment is an issue that everyone— combatant, critic and human rights worker—should be able to agree on. The right that needs to be asserted is the right not to be forced to fight. To do this is enough of a struggle in itself.

Letters

Letter from Martin Macpherson of Amnesty International, New York Review of Books XXXX, 2000

John Ryle is mistaken when he says Amnesty International is seeking to expand the definition of childhood in its campaign on children in armed conflict [NYR, March 4, 1999]. The United Nations Convention on the Rights of the Child, an international human rights treaty ratified by 191 countries (only the US and the collapsed state of Somalia have not ratified), defines childhood in Article 1 as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier” and increasingly international law uses the benchmark of eighteen years as the age below which special protection should be afforded.

The Convention on the Rights of the Child in Article 19 enshrines the right of those under eighteen to protection “from all forms of physical or mental violence, injury or abuse…” although Article 38, which deals specifically with children in situations of armed conflict, establishes fifteen, not eighteen, years as the minimum age for recruitment into armed forces of states or parties and participation in hostilities. Many governments, UN agencies, the Red Cross and Red Crescent Movement, and non-governmental organizations, such as those supporting the Coalition to Stop the Use of Child Soldiers, which are seeking to raise the age of recruitment into armed forces and participation in hostilities, are simply trying to correct an anomaly in the convention and not redefine childhood.

John Ryle’s review also attempts to justify recruitment of children into armed forces providing recruitment is voluntary. Such a position is simplistic as the distinction between forced and voluntary recruitment is often imprecise and ambiguous. Children may join armed forces for a range of reasons, including family connections, lack of alternative employment opportunities, a parental belief that the child will benefit from a period of military discipline, peer pressure, adventure, a desire for revenge, or ideological beliefs. But regardless of how children are recruited, the treatment of child soldiers is often abusive, and mentally and physically hazardous in itself. Even with regular government armed forces children are often subject to “toughening-up regimes” which may be detrimental to their mental and physical well-being, as well as to punishments which can lead to death or permanent physical or mental injuries.

Raising the minimum age for recruitment and participation to eighteen will also help to implement existing standards. In some countries birth registration is not universal and raising the age from fifteen to eighteen will make it much more difficult for children under fifteen to pass as eighteen-year-olds, whether deliberately or accidentally.

Ryle’s argument that any attempt to protect children’s rights is to force them into “the Procrustean bed of the child rights convention” is disturbing. Human rights standards—whether for adults, children, women, refugees, or any other group—are based on the concepts of universality and nondiscrimination. To argue against this demonstrates a fundamental lack of understanding of the role of all human rights standards which seek to provide equal protection for all.

In his review John Ryle gives examples of child soldiers on the continent of Africa to support his argument that the definition of childhood is not universally accepted and argues for more realistic and culturally convergent ways of resolving the child soldier problem. And yet, it was the Organization of African Unity (OAU) in 1990 which adopted the African Charter on the Rights and Welfare of the Child, which defines a child as “every human being below the age of 18 years” and prohibits the recruitment of children. This was reinforced in 1997 when the Labour and Social Affairs Commission of the OAU adopted the Arusha Recommendations which, inter alia, “condemn recruitment and conscription of children under the age of 18 years in the armed forces or armed groups.” Furthermore, in July 1996 the First Mini-Summit of African Children stated in its report:  “Despite some hesitations, the minimum age for joining the army has to be put at 21 years. This act should be voluntary.”

The involvement of children in armed forces is not inevitable. There is no excuse or acceptable argument for abusing and exploiting children as combatants. The recruitment and participation of children in armed conflicts is a decision made by governments or by leaders of armed opposition groups. It is unforgivable that children and young persons are encouraged to commit barbaric acts as well as being the victims of grave human rights abuses. It is time to exclude children from participating in war, and the optional protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict which raises to eighteen years the minimum age for participation in hostilities into armed forces is a significant contribution to this.

Reply by John Ryle to letter from Amnesty International  (New York Review of Books XXXX, 2000):

Few readers, I think, would interpret my review as Martin Macpherson does, as an “attempt to justify the recruitment of children”. What I argued was that in some places, in some circumstances, sixteen and seventeen year olds might have good reason to take up arms. And I suggested that, while this is clearly not a desirable state of affairs, it is neither practicable nor morally justifiable to deny them the right to do so. I said that in seeking to limit the involvement of young people in war the key issue is not chronological age but whether they are volunteers or not. As combatants such young people are, of course, subject to—and protected by—the existing laws of war. These already prohibit the “barbaric acts” that Mr Macpherson refers to. The challenge to campaigners is not to assert new paper rights but to find ways to enforce those that already exist.

I argued, further, that the blanket use of the word “child” and “children” by campaigners to designate any person under eighteen took insufficient account of cross-cultural variation in notions of childhood and adulthood. Mr Macpherson’s constant, unqualified reiteration of these emotionally-charged, yet culturally variable terms illustrates my point all too well, as does his invocation of UN resolutions without reference to any real-world situations. It is characteristic of a campaign that seeks a simple aspirational solution to a complex and variegated real-world problem. It remains the case that an eleven year old and a seventeen year old do not constitute a single moral category. One is unambiguously and universally recognized as a child; the other is not. This is true both of Western societies and those outside the West.

Since the publication of my review, a new optional protocol to the Child Rights convention was agreed in Geneva (in January 2000). Among other measures it sets eighteen as the lower age limit for compulsory recruitment into armed forces. This ban on forced recruitment is desirable, but the new protocol is flawed; and it has introduced further sources of confusion. States party to it will be barred, not from recruiting sixteen and seventeen year olds, but only from deploying them in combat. Non-state actors, on the other hand (who can sign neither the Convention nor the protocol, but are still bound under international law) are barred both from recruitment and from deployment. This discriminatory position hardly seems likely to encourage respect for the Convention on the part of non-state actors, who are generally the parties responsible for the worst abuses of children in war. It should be noted, also, that when governments of poor countries agree to sign international agreements it may reflect their desire to maintain aid flows from donor countries rather than any realistic commitment to enforcement.

Mr Macpherson describes my distinction between voluntary and forced recruitment of soldiers as “simplistic”. Yet such a distinction, as noted above, is enshrined in the protocol that he is defending. And in a rights-based discourse it is crucial. Indeed, it is fundamental to most moral and legal systems. The existence of a continuum between forced recruitment and voluntary participation does not mean we should abandon the attempt to distinguish between them. What is simplistic is not this, it is the idea that expanding the definition of childhood is the way to minimize the horrors of war.

Finally, I did not say that “any attempt to protect children’s rights is to force them into ‘the Procrustean bed of the child rights convention’.”  I used the term “Procrustean” very specifically to characterize the incorporation of soldiers over sixteen into the provisions of the Convention. This is not an argument against children’s rights; nor is it an argument against universality. On the contrary, it is an argument that seeks to safeguard the Convention, an already overstretched piece of legislation, by drawing attention to the extent to which the new protocol threatens to bring it into conflict with other, equally important rights and to distance it from existing universal norms—not the norms of diplomats in Geneva, but those of the diverse peoples in the countries worst affected by war.

My argument was against mission creep, internal contradiction and ethnocentricity in the position of some (though not all) of those who subscribe to the honorable cause of protecting children. I am loath to accuse Mr Macpherson, as he does me, of a lack of understanding of the issue, but he could definitely benefit from more careful reading.

Afterword

The Optional Protocol to the Child Rights Convention came into force in February 2002. The following report was published by IRIN, the Integrated Regional Information Network of OCHA, the UN Office for the Coordination of Humanitarian Affairs:

NAIROBI, 13 February (IRIN) – A treaty to ban the use of children as soldiers came into force on Tuesday, following 10 years of international efforts to fight one of the major causes of human rights violations in the world, the office of the UN High Commissioner for Human Rights announced.

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict establishes that no person under the age of 18 shall be subject to conscription into regular armed forces, and imposes an obligation on states to raise the minimum age for voluntary recruitment to at least 16 years.

States which are parties to the protocol are obliged to ensure that members of their armed forces under 18 years of age do not take direct part in hostilities. In addition, armed groups distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under 18.

According to the United Nations Children’s Fund (UNICEF), children serve in armed conflict as fighters, spies, servants, messengers and sex slaves. “They are increasingly being targeted for recruitment, because they are easily manipulated and coerced into violence,” a statement from UNICEF said on Tuesday.

“Many are recruited by force or simply abducted. Others are driven to join armed forces and groups by poverty, or do so for food or perceived security. Girls as well as boys are used as soldiers in many parts of the world, and are frequently sexually abused. Many child soldiers are killed or maimed.”

Marking the coming into force of the Optional Protocol, UN High Commissioner for Human Rights Mary Robinson called on states not only to ratify the treaty, but to make binding declarations ending all forms of military recruitment and participation of children under 18 years of age. “We are urging all governments and armed groups to end the military recruitment of children under 18, and to release and rehabilitate those children already in service,” she said. “There can no longer be any excuses for using children for war.”

The Special Representative of the Secretary-General for Children and Armed Conflict Olara Otunnu and UNICEF Executive Director Carol Bellamy also hailed the historic event.

“Children have no place in war and deserve the highest level of international protection to keep them from being used as child soldiers,” said Otunnu. “This new treaty is a victory for children who have been neglected, abused and sexually exploited by warring factions for decades.”

“Too often, children are forced into combat. They are terrorised in their homes and schools, and subjected to abductions, ill-treatment and sexual exploitation,” Bellamy said. “The entry into force of the Optional Protocol is vital to the protection of children in today’s conflicts.”

The Coalition to Stop the Use of Child Soldiers has played an important role in advocating for the adoption of the Optional Protocol. It estimates that half a million children are currently serving in government armed forces, paramilitaries and armed groups in 85 countries worldwide; more than 300,000 of these in more than 35 countries are actively participating in fighting.

The Committee on the Rights of the Child, which 10 years ago initiated work leading to the adoption of the Optional Protocol, will be in charge of monitoring progress achieved by states  in implementing it. Within two years of ratifying or acceding to the protocol, states must submit a report to the Committee, providing comprehensive information on the measures they have applied to implement it.”

IRIN reported that fourteen countries had ratified the Optional Protocol: Andorra, Bangladesh, Canada, the Czech Republic, the Democratic Republic of the Congo, the Holy See, Iceland, Kenya, Monaco, New Zealand, Panama, Romania, Sri Lanka and Vietnam. Eighty-two countries, it was reported, have signed without yet proceeding to ratification.

The United States, which allows voluntary enlistment at the age of 17, one of the countries that opposed a higher limit for volunteers. The United Kingdom, which allows enlistment at 16, was another. But both signed the accord, and both say they will ratify it. ★