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By Susan C. Mapp

On December 23, 2002, the United States ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This document defines a “child soldier” as a person under the age of 18 involved in hostilities. This raises the minimum age from the age of 15 set in the Convention on the Rights of the Child. Neuroscience is now providing us with the tools to see what many have long suspected: the adolescent brain has not yet fully developed. In particular, the prefrontal cortex, which regulates complicated decision-making and calculation of risks and rewards is not yet fully developed. The American Bar Association used this knowledge in its support of the ban on the death penalty for minors.

Article 7 of this document states that nations who are parties to it will cooperate in the, “rehabilitation and social reintegration of persons who are victims.” The Declarations and Reservations made by US related primarily its recruitment of 17-year-olds and noting that the ratification did not mean any acceptance of the Convention on the Rights of the Child itself, nor the International Criminal Court, thus indicating its acceptance of Article 7.

However, the United States frequently detains and incarcerates child soldiers. The United Nations has noted the “presence of considerable numbers of children in United States-administered detention facilities in Iraq and Afghanistan” (p.6). The New York Times states the U.S. report to the UN regarding its compliance with the Optional Protocol states that it has held thousands of children in Iraq and Afghanistan since 2002. The same report also states that a total of eight children have been held at Guantanamo Bay.

The United States is currently in the process of trying a child soldier who has been held at Guantanamo Bay for the past 8 years. Omar Khadr, a Canadian citizen, is accused of throwing a grenade that killed an American soldier, Sgt. Christopher Speer. Omar was 15 years old at the time, well below the minimum age for child soldiers. The head of UNICEF, a former U.S. national security advisor, has stated his opposition to the trial:

The recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted.  The children involved are victims, acting under coercion. As UNICEF has stated in previous statements on this issue, former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.

The Paris Principles, principles and guidelines on children associated with armed groups, was developed in 2007 to provide guidance on these issues. Developed by the United Nations, it has been endorsed by 84 nations as of 2009, not including the United States. It states that “Children … accused

Karen Greenberg is the Executive Director of the Center on Law and Security at New York University School of Law.  Her newest book, The Least Worst Place: Guantanamo’s First 100 Days, is a gripping narrative account of the first 100 days at Guantanamo and an analysis of how this time set up patterns of power that would come to dominate the Bush administration’s overall strategy in the “War on Terror.”  Below is an excerpt from the very beginning of the book.  Be sure to watch tonight when Greenberg appears on The Daily Show.

Two days after Christmas, the decision was announced to the public.  Donald Rumsfeld made it official.  The new detention operation would be set up at Guantanamo Bay.  SOUTHCOM would supervise the activities on the base.  The 2nd Force Service Support Group, normally based at Marine Corps Base Camp Lejeune in Jacksonville, North Carolina, would run the effort.  It would be a joint command, combining the efforts of the various branches of the U.S. military.  The name of the joint task force would be JTF 160-the very same label that had been used for the task force during the migrant crisis.

Relying on the patriotism of the forces on the ground and their obedience to the chain of command, Secretary Rumsfeld anointed Guantanamo in defiance not just of warnings from the past, but of military professionalism.

True, the military men and women on the ground, their superiors at SOUTHCOM, the interagency group in Washington, and the Pentagon all seemed to agree with one another.  In the shadow of 9/11, they all wanted to do the patriotic thing-which in this case was to help General Franks get rid of the prisoners under his command.  But the ready assent was the beginning of a long, slow slide into an untenable and, as it would turn out, extralegal situation that would be more and more difficult to end with each phase of its existence.

But underneath the narrative of agreement lay missteps and warning signs that would come to plague Guantanamo going forward and that were apparent even before the operation was up and running.  Chief among these exceptions to the norm had been the subversion of process that had been illustrated in the exclusionary and secretive way in which the Military Order of November 13 had been drafted and turned into policy, a habit that would come to define the Bush administration through its eight years.

This bureaucratic exclusivity would grow in its destructive impact as Guantanamo came into being, but for the moment, there was a more pressing danger, one that lay outside of the usurpation of powers in Washington or the extralegal premises of Guantanamo, and one that was overlooked by those making policy in D.C.  This was the danger posed by the fact that the United States military was not quite equipped to handle the mission that was about to be handed them-that of detaining prisoners of war.  It wasn’t just that the naval base itself was being asked to perform well above its capacity in terms of resources.  It was also a matter of professional expertise.  The nation’s military did not have the requisite expertise in prisoner of war detention, as the United States had not had to deal with prisoners of war on its own since World War II.

Nor was it helpful that the military was to conduct the operation on the blueprint of migrant detention operations.  The task at hand and the professional skills readily available to the Pentagon did not match up.  The plan for the detention effort that JTF 160 was given stood on the books as a migrant crisis operation, a template that ironically had itself struggled with definitional terms when it forbade the use of the term “refugee” for the camp’s residents. Now, in the year 2001, the definition of terms was intentionally obfuscated once again.  No matter what words were used, prisoner incarceration was not equivalent to migrant detention.  Captives were neither refugees nor migrants; they demanded a whole other kind of treatment and a separate set of policies.  This lack of expertise was further hindered by the fact that the job of SOUTHCOM was to deal with the countries and of the Caribbean and Latin America and issues germane to that geographical part of the globe.  Thus, its knowledge base was largely irrelevant when it came to Middle Eastern and South Asian culture.

Though Guantanamo may have provided a legal godsend and a logistically manageable environment, deeper realities suggested that trouble lay ahead for the detention facility.  It stood not just on historical precedent and legal opportunism but on the unstable ground of secrecy, disregard for professionalism and expertise, and a legal flexibility.  The deployed of JTF 160 to Guantanamo was an emergency act, done in lieu of a better option-the least worse choice for the least worst place.

No one understood better the treacherous pragmatic-and moral-implications of sidesteppping established law and policy than the man chosen to command the detention operation there.