from comps:

The Innocent Enemy: Children at War and the Boundaries of Combatancy

Betsy Perabo

If the United States enters a war against Iraq, and if a ground war ensues, American soldiers are likely to face children who have been trained to fight as part of the Iraqi military. Although many members of the international community have sought to eliminate the presence of children on the battlefield, the effort has not been entirely successful. With military capabilities that are far outstripped by those of the U.S., and with a declining pool of adult males from which to recruit soldiers, countries whose leaders are desperate to fortify their armies may increasingly resort to drafting children. This essay will address this grim possibility and consider what American policy should be regarding encounters with child soldiers in wartime. Should such soldiers be treated as all adult soldiers are treated? Are they appropriate targets for American soldiers? How are such decisions to be justified?

In this paper, I will look at these questions in the context of the principle of discrimination, one of the two components of the jus in bello, the rules governing the conduct of war. After a brief overview the principle as it appears in U.S. policy, I will consider the writings of one Christian ethicist, Paul Ramsey, who examines the principle in detail. I will then turn to the issue of child soldiers, looking at the scope of the problem, suggesting reasons ethicists and others should be concerned about the issue, and discussing several understandings of childhood. Finally, I will return to a more general discussion of the principle of discrimination, with an emphasis on the way it operates within conflicts that are militarily imbalanced, or “asymmetrical.”

Once a nation has engaged in the difficult task of justifying the resort to war, one of its central tasks is the identification of targets. Nations that adhere to the principle of discrimination seek to distinguish between types of individuals who may be subject to such targeting. Typically, citizens of an enemy nation are seen as falling into one of two categories: combatant or noncombatant. According to the rules of war, those who do not participate actively in the war effort, the noncombatants, are to be protected from direct intentional attack on their persons or property.

The basic outlines of the principle are relatively simple. Yet even the identification of combatants and noncombatants as the two types of individuals one should discriminate between is worthy of debate. While one may readily support this sort of discrimination for those soldiers who are enthusiastic proponents of the war they fight, we may ask whether it is fair to create a class of individuals who are subject to direct attack simply because they have been forced into enlisting in the armed services. Should any attention be given to the voluntariness of the combatant’s assumption of his role? Or, more broadly, should the intention and moral capacity of the combatant be taken into consideration in the context of the principle of discrimination?

Historically, by and large, the answer to these questions has been negative. Most analysts agree that it is the role filled by the soldier, as well as what he actually does, that makes him an appropriate target of publicly-sanctioned violence. However, I believe that a discussion of a case at the boundary of the combatant/noncombatant distinction – the case of the child soldier – may force a reevaluation of this answer. I will argue that there are good reasons to treat child soldiers differently than adult soldiers: their moral immaturity leads to a lack of genuine decision-making capacity; battle is likely to harm them more than their adult counterparts; and children should generally be protected from harm more vigorously than adults. We should also consider how we – both soldiers and those who sanction their actions – would be affected by a treatment that does not discriminate between children and adults. The principle of discrimination, then, may not reduce so readily to the combatant/noncombatant distinction: we may find it appropriate to discriminate in some way between types of combatants as well as between combatants and noncombatants.

I. U.S. Policy on Discrimination

The history of the principle of discrimination in the U.S. is an interesting one, and the principle as it now exists is complex and nuanced.[1] However, for the purposes of this paper, I will simply note the basic understanding of the principle as it is found in U.S. military policy. This understanding is reflected in both the U.S. Army Field Manual FM27-10, the Law of Land Warfare, which was first approved in 1955, and AFP110-31, International Law – The Conduct of Armed Conflict and Air Operations. I will briefly examine the understanding of discrimination in these two documents, and then look more specifically at FM27-10’s treatment of children within my discussion of child soldiers.

FM27-10 states that the law of land warfare is “inspired by the desire to diminish the evils of war by a. Protecting both combatants and noncombatants from unnecessary suffering; b. Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy...and c. Facilitating the restoration of peace” (I.I.2). With respect to discrimination, FM27-10 says that although all nationals of a state that is at war are to be considered the enemy, “civilians must not be made the object of attack directed exclusively against them” (I.I.25). Civilians also receive extensive protection and aid in the case of an occupation.

AFP110-31’s position on the principle of discrimination is that “the civilian population as such, as well as individual civilians, shall not be made the object of attack. Acts or threats of violence which have the primary object of spreading terror among the civilian population are prohibited.”[2] The criteria of proportionality and discrimination are linked in the document, with a notation that civilian immunity from direct attack does not “preclude unavoidable incidental civilian casualties which may occur during the course of attacks against military objectives, and which are not excessive in relation to the concrete and direct military advantage anticipated” (1-6). Cook, however, notes that from the beginning, air power has led to the erosion of the distinction between combatants and noncombatants, in part by affecting how one determines whether a territory is “defended.”[3] However, the authors of AFP110-31 suggest that the limitations of previous wars can be overcome, so that discrimination can be viable during aerial bombardment. O’Brien states that this will occur because of improvements in bombing accuracy –something under the control of the U.S. – but also because “belligerents are on notice to separate their military from their civilian targets or take upon themselves responsibility for civilian losses in military attacks.”[4] This latter point is clearly more problematic.

Current U.S. policy, then, points to several issues that will be relevant in considering the position of child soldiers. First, the U.S. clearly supports the principle of discrimination as manifested in the distinction between combatants and noncombatants, but, at the same time, it recognizes that noncombatants can never be entirely protected from the effects of battle. Second, according to the terms of FM27-10, both noncombatants and combatants are to be protected from unnecessary suffering. Neither of these, of course, are novel ideas. Finally, AFP110-31 indicates that discrimination is only viable if there is a mutual understanding between the warring parties with respect to the protection of noncombatants. It assumes that the enemy state will either protect its noncombatants or “take responsibility” for harm that comes to them. Again, this idea is not novel, but I will suggest below that the asymmetric context of modern war makes this third issue more problematic.

II. Paul Ramsey and the Principle of Discrimination

One of the strongest expositors and defenders of the principle of discrimination in the late twentieth century was the Christian ethicist Paul Ramsey. Ramsey comes out clearly in favor of the just war generally based on the principle of Christian charity; he writes, “it is the work of love and mercy to deliver as many of God’s children from tyranny, and to protect from oppression, if one can, as many of those for whom Christ died as it may be possible to save.”[5] Although his writings, which look at discrimination in the context of the Cold War and the Vietnam War, are somewhat dated, Ramsey’s detailed analysis of noncombatant immunity is nuanced by his clear understanding of the theory and practice of war in general, and is thus very helpful in examining contemporary applications of the principle. I will look at two issues relevant to the child soldiers case here: the issue of innocence or guilt in relation to combatants and noncombatants; and the immorality of insurgency warfare.

Ramsey argues that abstract notions of innocence or guilt are unrelated to the status of combatancy or noncombatancy. The critical distinction should be between “’close’ and ‘remote’ cooperation in the force that should be repelled”; one’s innocence or guilt is “reducible to degrees of actual participation in hostile force.”[6] For this reason, he criticizes a church commission report that notes that “men who are drafted into uniform may be among the least guilty.”[7] Ramsey states, “Who ever declared combatants (or the ‘guilty’) to be legitimate objects of direct attack or counter-attack simply because, unlike mercenaries in the past or men drafted today into ‘democratic’ armies, they are more personally guilty than the rest of their countrymen?”[8] What a soldier possesses is “objective or functional guilt because of status in the forces that should be repelled”; we are permitted to kill a soldier “because of the place where the bearer of the hostile force [stands] in relation to God’s other children.”[9] The innocence of noncombatants lies in their “remoteness” to the pursuit of the war.

Ramsey also discusses “insurgency warfare,” which he defines as a situation in which forces within a country typically attempt to “strike selectively the civil populations in order to subvert the country and to gain control of what’s left of the government.”[10] Insofar as this is what these groups are attempting to do, insurgency warfare is “an inherently immoral plan of war” regardless of the justice of the cause. Insurgency forces strive to “subvert a whole country’s traditions and institutions” through attacks on the civilian population. The insurgents themselves enlarge the target; counterinsurgent efforts are not to blame for attacking that target, although efforts at discrimination should still be made. This sort of assessment is found in current discussions of U.S. military policy, and has led analyst Davida Kellogg to argue that guerrilla warfare should be a prohibited means of fighting because it leads to war crimes.[11]

Ramsey, then, raises two critical points. First, he argues that our perception that a soldier is “innocent” (in the ordinary sense of the term) should not affect our response to him during the course of war. Second, like the authors of AFP110-31, he states that those who “enlarge the target” to include those who would ordinarily fall into the category of noncombatants bear sole responsibility for any harm that comes to this group of “innocents.”

III. Children and War

The principle of discrimination clearly reflects a desire to protect the innocent from harm. However, as Ramsey notes, separating the innocent from the guilty is not an easy task, and in any case, we may choose not to base discrimination on questions of innocence and guilt: it may be more appropriate to look at the role an individual plays in the context of a war and treat him accordingly. Nowhere is this problem more starkly set forth than in the matter of child soldiers.

In the recent past, the American public and the American media have displayed concern for individuals in enemy countries who can be clearly classified as civilians or noncombatants, and in some cases, Americans may also see enemy combatants as victims in a conflict. This is most likely to occur when the U.S. engages non-democratic countries with forced recruitment, where soldiers have no choice but to fight on behalf of governments they have not elected, in military engagements they have no way of controlling or ending.[12] The concern is likely to be intensified when the soldiers who participate are younger than those who serve in the U.S. military.[13] These so-called “child soldiers,” participants in combat who are under the age of 18, must be classified as enemies – they bear weapons, often wear uniforms, and are committed to fighting – but their young age inclines many to view them as, in some respect, innocent.[14]

A number of countries have sought to prevent children from participating in combat at all; the Convention on the Rights of the Child prohibits countries from using those under 15, and an optional protocol proposes raising the age to 18. It is clear, however, that these efforts have not been successful. Approximately 300,000 children are now engaged in conflicts around the world. More critically for the U.S., both sides in Afghanistan have used child soldiers, and Iraq does as well. The U.S., then, is deeply involved in this problem, and needs to assess its policies toward children engaged in combat.

It might be suggested that a soldier is a soldier, and no such reassessment is necessary. But if the U.S. military takes this position, it must be able to clearly and convincingly articulate its reasons for doing so. To civilians already inclined to oppose a war with Iraq, it will seem bizarre to discuss the moral appropriateness of killing child soldiers. It will be seen as cruelly ironic that an 11- or 12-year-old Iraqi who has escaped the fate of hundreds of thousands of children born in the 1990s, a premature death linked to the exercise of U.S.-supported economic sanctions, may now be recruited as a soldier and killed by U.S. forces while serving in that capacity.[15] Such construals must be anticipated and confronted directly.

In this section, I will try to determine how we might think about this issue. First, I will give a brief overview of the current situation, in order to provide a sense of the scope of the problem. Second, I will identify several reasons why we may object to a child’s participation in combat. Finally, I will examine a few discussions of the nature of childhood. There are, of course, many accounts of child and adolescent development that might be taken from psychology, sociology, religion, and law. I will limit my discussion to the latter two areas. Within religion I will discuss the views of Augustine and Aquinas. Within law, I will look at contemporary legal age requirements for a variety of activities, in particular, the rules that have been made with respect to voting, drinking, and criminal prosecution, and then will discuss the treatment of children in the Law on Land Warfare and the Convention on the Rights of the Child and its Optional Protocol.

Following this general discussion of children, I will describe Pauline Kaurin’s proposed revision of the combatant-noncombatant distinction and discuss how it might be applied to the situation of child soldiers. In the end I will conclude that the problem of child soldiers, along with other cases of “ethical asymmetry,” may require carefully-considered sacrifices on the part of U.S. soldiers in order to protect American values.

A. The Scope of the Problem

Approximately 300,000 children under 18 are participating in armed conflicts in 41 countries throughout the world, and 200,000 more have been recruited. A total of 87 countries have recruited child soldiers. Most are between 15 and 18, but some are as young as seven.[16] Many wars involving child soldiers are civil or regional conflicts, and they are most likely to occur in the poorest countries, particularly in Africa.[17] However, the issue has begun to affect the United States more directly.[18] It has been widely reported that the first U.S. serviceman to die in combat in Afghanistan was killed by a 14-year-old boy.[19] In an impoverished country where children are not protected – 50 percent of Afghanistan’s children are malnourished, and in Kabul, for example, there are as many as 50,000 child laborers – it is not viewed as unusual for children to be drawn into a conflict. A report by the American Friends Service Committee states, “Children have been used as soldiers by all warring factions during the last several decades.”[20] The Taliban may even value child soldiers more highly than adults; one Pakistani fighter said, “Children are innocent, so they are the best tools against dark forces.”[21] The Northern Alliance apparently agrees. Officially, the Alliance claims that it does not induct soldiers under 18, but Western reports have identified children as young as 12 who have fought on the U.S. side of the war against terrorism. Some justify the practice by citing the worthiness of the cause: Musadiqallah, a Northern Alliance Foreign Ministry official, states, “Our cause is so great that even our children want to join us in fighting the enemy.”[22]

Encounters with child soldiers would also be likely should the U.S. attack Iraq. Iraq has organized summer military “camps” for thousands of boys, some as young as 10, who receive training in small arms. There are several units of child soldiers, including the Ashbal Saddam (Saddam’s Lion Cubs), which include approximately 8,000 children in Baghdad alone.[23] Those in these units are said to be between 10 and 15, but may be as young as 5-7 years old; they have also been trained in small arms and infantry tactics.[24] While it is not expected that the use of child soldiers would be of strategic significance, Peter Singer suggests that it would be demoralizing for the U.S. soldiers facing them – as occurred when troops fought the Hitler Youth in 1945 – and would add “to the overall confusion of battle.”[25]

The British have already begun to deal with the issue of children in combat. In British operations in Sierra Leone in late 2000, for example, one squad engaged with, and refused to fire on, "children armed with AK-47s," and another attacked and killed a group of enemy forces (part of a rogue militia) that included children, according to Maj. Jim Gray of the British Royal Marines. As a consequence of these situations, military planners have become concerned with how to prepare soldiers for engagements with children. Gray said, "The impact of being fired on by a child is an initial shock, but the soldiers will do their job. But if you don't care for them when they come home, it might destroy them."[26]

B. Why is Child Soldiering an Issue?

Reports such as these may evoke a visceral response that it is imperative to keep children from participating in combat. It is important, however, to identify the reasons behind this response. These may be divided into reasons that are based on protective impulses toward the child as a vulnerable individual; those that are based on the views of a child’s capacity for moral judgment; and those that are principally self-interested. These sets of reasons overlap, and, to further complicate analysis, some may pertain principally to keeping children off the battlefield while others relate to responding to their presence once on it. Still, a delineation of these reasons will be helpful for addressing the questions I have raised.

First, we may believe that children should be protected from harm generally. More specifically, we may acknowledge that the psychological effect of battle is magnified for children, who may be more likely to suffer post-traumatic stress and/or be unable to reintegrate themselves into society.[27] They may become a menace to society as well as to themselves. Just as we have begun to bomb enemy cities with an eye toward their later rebuilding, avoiding damage to infrastructure critical for civilian life, we may need to consider how best to preserve the “human infrastructure” of the societies we fight.

Second, we may base our objection to child soldiers on their capacity for moral judgment. According to this sort of argument, children are not old enough to make decisions regarding the morality of killing. Many societies permit adults to choose conscientious objector status (or simply not to volunteer for the armed services); if a child has not reached the age where he is capable of making such a choice, we should keep him out of the fighting. In addition, we may state that children are not old enough to choose to risk death. This is similar to but distinct from the previous example; one may be willing to die without being willing to kill and vice versa.[28] As was noted above, we may have similar concerns about adults’ involuntary participation in warfare, but these are likely to be magnified in the case of children.

Finally, we may believe that the presence of child soldiers presents a risk to our own soldiers. Some have argued that children are not responsible enough to handle themselves in battle; they may be more reckless or more likely to commit atrocities, for example. In addition, there are concerns regarding psychological effect of fighting children on the adults engaged in battle with them, as Gray suggests. The increased guilt soldiers feel may translate into serious psychological problems over and above those usually suffered by veterans. Soldiers may also develop a callousness toward children that will lead to increased post-war child abuse or other mistreatment of children.

How we evaluate the child soldiers issue will relate to one or more of these reasons. Before considering which of these reasons are most important or relevant, it may be useful to look at our general understanding of childhood, and how these reasons have related to it.

C. What is a Child?

1. Religious Views: Augustine and Aquinas

In considering whether children should be treated differently with respect to their participation in armed conflict, it may be helpful to look at general ideas about the nature of childhood and the progression of stages within it. I will first consider the views of two influential religious thinkers, Augustine and Aquinas, and then move to a discussion of contemporary views.

Definitions of childhood have shifted throughout history, but the features described by early thinkers have persisted in modern analyses. Categorizations of the features and capacities of human beings in particular age groups arose for various reasons – some to determine the age of moral culpability, others to identify the appropriate age for full participation in a religious community. The most common division, which eventually made its way into the English common law on which American law was based, involves three stages: infancy, childhood, and adolescence.[29] At the end of these stages one is considered (more or less) fully mature; however, most significant changes have occurred by the end of the second stage. Frequently each stage is seen as lasting seven years, but this may vary.

For Augustine, the first stage, from birth to the acquisition of language, is infancy. An infant is “non-innocent,” tainted by original sin but not yet capable of sinning. Once a child can understand speech well enough to comprehend a rebuke, he has entered childhood. This capacity for obedience and disobedience leads to increased accountability.[30] However, although a child may do many reprehensible things, he should not be punished as severely as an adult because he does not have true and full knowledge of good and evil. The third stage, marked by the onset of puberty, is adolescence. It is at this phase that one is capable of deliberate malice; Augustine in his Confessions describes the theft of pears which is not a capricious flouting of arbitrary moral rules set by an adult (as it might have been during childhood) but a deliberate disobedience of a real internal moral code. Augustine writes, “I had no wish to enjoy the things I coveted by stealing, but only to enjoy the theft itself and the sin,” (II.4). Martha Ellen Stortz states that Augustine and his friends “disobeyed not a rule arbitrarily set by an adult but a certain bedrock equity in the world of human society.”[31]

The Augustinian position is reflected in writings by Martin Luther and John Calvin, who argued that the onset of a sex drive at the age of 14 prompted aggression, defiance of authority, pride and rebelliousness. Throughout this period, children begin to have increasingly greater accountability for wrongdoing.[32] Although the authors do not explicitly state this, it appears that the 14-21 stage is marked by attempts to adjust to one’s newfound capacity to truly disobey the moral law (God’s law, as it is knowable by human beings). Getting oneself under control during this phase is seen as difficult but required. Augustine, then, might be most concerned with a reason for opposing child soldiers mentioned in the previous section: children may not be responsible enough to handle themselves in battle.

Aquinas divided the three stages based on somewhat different criteria; he is more interested in an individual’s ability to understand situations and make rational choices. Infancy, through age 7, was “when a person neither understands by himself nor is able to learn from another”; childhood, through age 14, when “when a man can learn from another but is incapable by himself of consideration and understanding”; and adolescence, the third seven years, “when a man is both able to learn from another and to consider by himself.”[33] During childhood the “dawning of rational thought” occurs; a child can ask for baptism, and make simple vows. In adolescence, children are treated like adults in ecclesiastical and moral matters.[34] Aquinas, however, gives two reasons why a vow made by a child might not be efficacious: first, if a child has not “reached the required use of reason, so as to be capable of guile, which use boys attain, as a rule, at about the age of fourteen and girls at the age of twelve, this being what is called the age of puberty”; and second, if the child, who is under the authority of his or her father, does not receive approval from him to take the vow.[35] Aquinas’ focus, then, is on one’s rational capacity to make important decisions – with respect to soldiering, the choice to kill or to risk death.

Effects of this line of thought persisted in Catholic ecclesiastical law into the twentieth century. According to one Catholic scholar, although children as young as seven were accountable for their acts, “the 1918 Code of Canon Law made a distinction between minors (under 21) and adults and excused anyone who had not attained the age of puberty from any penal laws” due to their lack of mature judgment. One canon lawyer said that those under 14 "ought to be punished with medicinal-educational penalties rather than with censures or other vindictive penalties.”[36] Here we see the recognition of the need for rehabilitation of children who engage in destructive actions; this hints at the potential long-term psychological effects for such children.

For classical and medieval religious thinkers, then, there is a definite change of state around the age of 14 or 15, but since adolescence continues until the age of at least 21, it is clear that a person is not considered fully mature in every sense until that age. Although these thinkers generally do not discuss (as far as I have found) the relation of these changes of state to the capacity for engaging in battle, several of the characteristics of these early stages pertain to this capacity: the fact that adolescents can really do wrong, and know they are doing wrong, but that they have not yet learned to control themselves; the increased aggressiveness and rebelliousness brought on by the start of a sex drive, which is not yet controlled; and the lack of full use of one’s rational capacity. Both the reason and the will are affected: it is difficult to make rational choices because one’s reason is not fully developed, but there is also a sort of moral turbulence, a vertigo that accompanies the new capacity for genuine wrongdoing. Identifying the status of individuals in this stage, then – whether they are more like children, or more like adults – has always been difficult.[37]

2. Legal Age Requirements in Contemporary Society

In the United States today, maturity, assessed on the basis of chronological age, is considered as a factor in determining a wide variety of rights, privileges, and responsibilities. Children as young as 12 may be tried as adults, and the majority of states permit such trials for children 14 and older; in Florida in 2001, a 12-year-old was sentenced to life imprisonment without parole.[38] In a few states, children as young as 12 may be married with parental consent, although 16 is a more typical limit; 18-year-olds may be married without parental consent, except in Puerto Rico, where the required age without parental consent is 21. Membership in religious communities (as marked, for example, by one’s bar or bat mitzvah) typically begins in the early teens. The minimum age for capital punishment is 14 in North Carolina and Arkansas, with 14 other states setting the minimum age at less than 18 years.[39] At 16, one is allowed to drive a car. While 16 is considered the “age of majority” according to some state laws, most set this age at 18, and Pennsylvania, for one, sets it at 21. (This typically relates to property ownership, contracts, trusts and other financial dealings, and may relate to other rights as well.) At 17, one may enlist in the armed forces with parental consent; 18-year-olds must register for the draft and may enlist without parental consent. The voting age is18, down from 21 just 30 years ago. Those under 21 cannot drink legally, as a result of a vast amount of data that indicates they are more likely to drive when drunk and injure themselves and others.[40] Insurers recognize that young drivers are more likely to cause accidents, and accordingly those under 25 (especially unmarried men) may be charged higher insurance premiums or be denied the right to rent a car. Only those 25 and older may serve in Congress; only those 35 and older may be president.

It is clear that there is no consensus with respect to the age at which individuals reach maturity. Of course, it might be argued that different qualities are necessary for engaging in these different activities. For example, in 1954, one Congressional opponent of lowering the voting age to 18 said, “The thing called for in a soldier is uncritical obedience, and that is not what you want in a voter.... Eighteen to twenty-one are mainly formative years where the youth is racing forward to maturity....These are the years of the greatest uncertainties, a fertile ground for the demagogues.”[41] But more often, the reasoning behind the establishment of a particular age is unarticulated. We seem more inclined to give children responsibilities than rights; a child of 14 is assessed as responsible enough for his actions to be sentenced to death, but not responsible enough to be given a driver’s license or vote; and the discrepancy between the drinking age and various other rights and responsibilities has been noted repeatedly.

When evaluating these age limits, it is important to note that children in the nebulous pre-adolescent and adolescent period are not necessarily incapable of entering into serious commitments and adhering to them. Some certainly are; others, it seems, might have this capacity “under fire,” if circumstances required it. Young men and women who have an unplanned child may quickly “grow up,” take responsibility for it, and become fine, committed parents; soldiers on the battlefield may learn to make and keep commitments to their comrades. Certainly this is the assumption of most military planners; training can make a boy into a man. So, the military assumes, it is not that an 18-year-old will arrive at basic training with the maturity required to be a soldier; rather, the service can make a soldier out of any (or almost any) 18-year-old. And this may be the assumption of other militaries that have found this to be true of 12- or 15-year-olds. Obviously, however, there is another element to the maturity required of those in the service. Soldiers must not merely be responsible in a general sense to those in their unit or squad; they must specifically be willing to kill and die for them, or on behalf of their country. So soldiers must be in a position to evaluate the morality of direct killing. They must have determined that it is appropriate for a state to make war under certain circumstances; they must trust the process their own state uses to make such a decision; and they must decide that they would be willing to kill in the course of such a war. Clearly, many U.S. soldiers have gone through this process at the age of 18, so one may ask how early this process might occur.

3. Children in the Law of Land Warfare

At this point, there appears to be no specific U.S. policy relating to the engagement of child soldiers in combat. However, American views on childhood have made their way into the Law of Land Warfare in a limited but significant way.

The Law of Land Warfare appears to accept the “no combatants under 15,” doctrine, although this is not made explicit. In FM27-10, it appears that children under fifteen are assumed to be civilians or noncombatants. In Chapter 5, Treatment of Civilian Persons, provision is made for establishing “hospital and safety zones...to protect from the effects of war, wounded, sick and aged persons, children under fifteen, expectant-mothers and mothers of children under seven” (section II, 253). Special protection for children under 15 is mentioned again in paragraphs 263, 277 and 296. The grouping of children under fifteen, expectant mothers, and mothers of children under 7 is also found in Chapter 2, which acknowledges that “civilians must not be made the object of attack directed exclusively against them” (II.I.25). In conjunction with this, warnings before bombardments should be given when possible “so that the noncombatants, especially the women and children, may be removed before the bombardment commences” (43.c.). (No age is specified for the children in this section, however.)

In FM27-10, no special treatment is recommended for children between the ages of 15 and 18, so it may be assumed that these individuals are treated in the same way as older adults with respect to an evaluation of their combatant or noncombatant status. In this way – although of course this is not explicit – the U.S. tacitly recognizes the potential that its enemies will use soldiers who are 15, 16, or 17. But again, tacitly, the U.S. indicates that children under 15 should not be viewed as combatants. There is no rationale specified; the document simply assumes the need to protect children in a general sense.

4. The Convention on the Rights of the Child and the Optional Protocol

In the international community, concerns about child soldiers have led to efforts to keep children out of the military before any conflict starts. The 1989 International Convention of the Rights of the Child (CRC) establishes 15 as the age at which children may be permitted to serve in a country’s armed forces, either as a result of conscription, or as volunteers. Ratified by all U.N. member states except the United States and Somalia, the CRC, which entered into force in 1990, states in Article 38, “States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities,” and “shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.”[42]

However, in keeping with the general standards of the treaty, which defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier,” (I.1) the CRC attempts to treat 15-17-year olds as a distinct class within the context of military service and recruitment. With respect to persons between the ages of 15 and 18, states are also instructed to give priority to the oldest in their recruitment process.

In addition, the CRC states that the parties “shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.” Finally, it notes, in Article 39, that states “shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of [among other things]...armed conflict.”[43]

The Optional Protocol to the CRC, which entered into force in February 2002, raises the age for compulsory recruitment to 18, and says that parties “shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities” (Art. 1). They are also to raise the minimum age for volunteers. Those states that do permit those under 18 to volunteer for service agree to maintain safeguards to ensure that recruitment is voluntary, that parental consent has been obtained, that adequate information about the nature of service is provided, and that proof of age is given (3.3). Armed groups “distinct from the armed forces of the state” are also instructed not to “recruit or use in hostilities persons under the age of 18 years” (4.1). Once again, states agree that those children who are recruited or used in hostilities shall be accorded “all appropriate assistance for their physical and psychological recovery, and their social reintegration” (6.3).

The CRC and the Optional Protocol are clearly well-intentioned efforts to keep children under 15, or possibly under 18, out of wars, focusing in particular on the need to protect children from harm generally and the desire to prevent long-term psychological effects. They do not, however, suggest what to do when convention has been ignored, when one confronts child soldiers on the battlefield. In order to address this question, it will be necessary to look at a contemporary discussion of the nature of noncombatancy.

IV. The Combatant/Noncombatant Distinction

A. The Future of the Principle of Discrimination

In “Innocence Lost: The Future of the Combatant/Non-combatant Distinction,” Pauline Kaurin writes that there are conflicts within international law and military practice regarding the identification and treatment of noncombatants due to the occasionally “combatant-like” behaviors of these individuals.[44] As conflicts with non-traditional forces become the norm, it is increasingly important to determine who on the new battlefield will be treated as a combatant and who will be afforded some measure of protection. Kaurin notes that despite the difficulty of assigning “innocence” and “guilt” to individuals, especially in the heat of combat, we are inclined to support the idea of doing this at least to some extent, in order to protect those who are not responsible for the conflict. After an evaluation of the evolution of the combatant/non-combatant distinction throughout Christian and philosophical history, she suggests that while previously the distinction was based on an understanding of the party’s innocence or guilt, we should now base it on “the relative power of the parties to inflict harm, and therefore, the extent to which they might be considered a threat.”[45]

Kaurin proposes a “sliding scale of power and threat” which “will allow us to maintain the spirit of the combatant/non-combatant distinction, but also acknowledge the challenges and realities of contemporary warfare.” The highest level of power and threat is that of uniformed combat personnel; the second level is an armed individual who is not in a standard uniform; the third is a “hostile” who is not in uniform and is not openly carrying a weapon (although they may or may not have one). The fourth category is “neutral,” and applies to those who have not announced “friendly intentions” but otherwise seem to present no threat. The fifth level is the vulnerable individual, which Kaurin takes to include “most children, women, the old, prisoners, and the infirm or injured.”

Kaurin’s argument raises many critical questions for the future of the principle of discrimination, and deserves to be pursued much further than I will be able to do in this essay. So my remarks here are only a starting point.

I believe that Kaurin has correctly identified one of the aspects of noncombatancy that must be examined when formulating military policy. However, I believe that it is wrong to completely eliminate the innocence/guilt criterion for noncombatancy, even on the battlefield, where it is most difficult to assess. (Similarly, I would reject Ramsey’s argument against the innocence/guilt distinction.) Those who Americans would clearly identify as “the innocent” – especially children – do participate in conflicts, and I will argue that not only the level of threat they display but also their status as children should affect how they are treated. As is clear from the above arguments, we are not simply concerned with the need to protect children in a general sense; we are also concerned with their precarious intellectual and emotional state, and of the effect on us if we treat them as adults. There is no doubt that an injunction to treat child soldiers differently will make the task of American soldiers more difficult. It will probably endanger their lives. Nevertheless, a sliding scale approach like Kaurin’s should, I believe, be applied to children on the battlefield.

I believe that it is appropriate from a moral and psychological point of view to consider some parties on the battlefield as innocent, no matter how dangerous or harmful their actions may be to U.S. personnel or those they protect. As the other age restrictions demonstrate, we do not have a consistent view of the nature of childhood. We recognize the need or right of children to be protected from harm, both imminent physical harm and long-term psychological damage. We also recognize their limitations – the difficulty they have in making moral decisions, and in controlling their impulses – and we acknowledge that such limitations make it wrong to involve them in combat. But we also press to punish children in our courts, to treat them as adults when we are afraid of them; and when dangerous children appear on the battlefield, we have a similar response. It is tremendously difficult to make decisions as to whether to protect a violent youth or protect the society he or she is attacking. But when the society stands for the protection of all children, as ours does, we must incorporate this principle into our legal and military decisionmaking process.

B. Discrimination and Ethical Asymmetry

The child soldiering problem is part of a larger problem faced by American and other forces engaged in so-called “asymmetrical” conflicts.[46] Here I am concerned with what I will term “ethical asymmetry,” the problem faced by American forces who attempt to hold themselves to what they see as a higher standard.[47] This is a growing issue for the U.S., one that involves both ethics and strategy. The overarching question is: What should the U.S. do when confronted with an enemy that appears to be unconcerned about protecting its own people?

In this case, I believe that what is needed is an approach that combines the humanitarian concerns of the CRC with the military concerns of those who have been or are likely to become engaged in combat with young soldiers. This is not a straightforward ethical problem (e.g., “No one under 18 should be harmed regardless of their actions or the circumstances”), nor is it a straightforward military problem (e.g., “Anyone who presents himself, or appears to present himself, as a soldier should be treated as such.”) The approach must deal with the contradictions and ambiguities of construing an innocent as an enemy, or an enemy as an innocent. It must also anticipate that such a policy could backfire in a terrible way; countries such as Iraq may revise their military policies in response to U.S. policy on child soldiers, thus increasing the likelihood that they will recruit and train children for engagements with the U.S.

Some may say that the only thing to do is to defeat the enemy and make changes afterward. But this requires confidence in a relatively quick defeat – something that enemies of the U.S. know is already a high priority for Americans. A willingness to drag on a war for months and years despite enormous harm to civilians (and soldiers) is already a part of the asymmetrical approach enemies of the U.S. take. So we must be careful in moving too quickly to a total war doctrine, the blanket assumption that war is hell and no restrictions can be placed on its implementation.

I anticipate that it will be extraordinarily difficult to develop an appropriate policy on child soldiers. Peter Singer has suggested a number of tactical solutions, such as firing for shock, targeting adults leaders of child soldier units, using psychological operations to encourage desertions, and employing non-lethal weapons.[48] I do not have the knowledge needed to evaluate the viability of these tactics. What I do want to insist is that such solutions must be pursued aggressively, not simply because they are effective military strategies, but also because they are needed to protect children who should not have been made soldiers. Soldiers such as those in the British squad who held their fire when faced with armed children should not be encouraged to rethink their instincts. The protection of American values in bello is just as important as the incorporation of American values in ad bellum deliberations. We will be facing issues of ethical asymmetry for years to come, and we must carefully consider how to meet this challenge in this and other cases.

NOTES

[1] See, e.g., Reginald C. Stuart, War and American Thought (Kent, OH: Kent State University Press, 1982), and James Childress, “Francis Lieber’s Interpretation of the Laws of War,” Moral Responsibility in Conflicts (Baton Rouge and London: Louisiana State University Press, 1982), 95-164.

[2] Martin Cook, “Applied Just War Theory: Moral Implications of New Weapons for Air War.” Annual of the Society of Christian Ethics (1998): 206; from AFP110-31, 5-3.

[3] Cook, 199.

[4] O’Brien, 53.

[5] Paul Ramsey, The Just War: Force and Political Responsibility (Lanham, CO: Rowman & Littlefield Publishers, Inc., 1983/2002), 143.

[6] Ramsey, 153.

[7] “The Christian Conscience and Weapons of Mass Destruction,” The Dun Report of a Special Commission appointed by the Federal Council of the Churches of Christ in America, 1950, 10-11; cited in Ramsey, 159.

[8] Ramsey, 159.

[9] Ramsey, 159.

[10] Ramsey, 433.

[11] Davida Kellogg, "Guerilla Warfare: When Taking Care of Your Own Troops Leads to War Crimes." Joint Services Conference on Professional Ethics (XIX), 30-31 January 1997.

[12] See, e.g., Stacy R. Obenhaus, “The Highway to Basra and the Ethics of Pursuit.” Military Review (March/April 2000). The emphasis during the Gulf War on successful U.S. attacks on “elite Republic Guard units,” as opposed to units composed of ordinary Iraqi soldiers, also reflects this concern.

[13] The minimum recruitment age is 17, assuming parental consent is given. This has given rise to criticism of the U.S. by some in the international community who believe that no one under the age of 18 should be allowed to serve, regardless of whether recruitment is forced or voluntary. This will be discussed below. I believe that there may be some resistance in the U.S. to discussing the problem of “child soldiers” because the term has lately come to refer to all “under-18s.”

A terminological issue might be raised in connection with this view: should the term “child soldier” refer to all soldiers under 18? While it clearly applies to an 11-year-old, a boy of 17 might be more appropriately termed an “adolescent soldier,” for example. Whether or not it is appropriate to refer to all individuals under the age of 18 as “children” is a debatable point, and the terminology is clearly freighted. However, I will follow standard terminology and refer to soldiers in that age range as “child soldiers.”

[14] As was established in the Lieber Code, all citizens of an enemy of the United States are considered enemies (U.S. Law of Land Warfare, FM2710, II.I.5). But even in the more general, lay sense of the term ‘enemy,’ child soldiers would appear to fit this description.

[15] Joy Gordon, “Economic Sanctions, Just War Doctrine, and the "Fearful Spectacle of the Civilian Dead.” Cross Currents 49:3 (Fall/Winter 1999).

[16] Shannon McManimon and Rachel Stohl, “Use of Children as Soldiers,” Foreign Policy in Focus 6:36 (October 2001). For additional information on the issue, see: Center for Emerging Threats and Opportunities, “Child Soldiers – Implications for U.S. Forces Seminar Report,” September 23, 2002, www.ceto.quantico.usmc.mil/childsoldier/ FINAL%20Report%20Complete.pdf, Retrieved January 19, 2003; and Ilene Cohn and Guy S. Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflicts (Oxford: Clarendon Press, 1997).

[17] Neil G. Boothby and Christine M. Knudsen, “Children of the Gun.” Scientific American 282:6 (June 2000): 60-66.

[18] Both Brig. Gen. William Catto, who commands the Marine Corps Warfighting Laboratory at Quantico, Va., and retired Marine Col. Randy Gangle, who directs the Center for Emerging Threats and Opportunities (CETO), have stated that the military must address the issue of child soldiers. Catto noted that the age of professional armies is ending, and that U.S. forces more and more frequently will be dealing with “nontraditional combatants,” including those who are very young. See Ann Scott Tyson, “Tough Calls in Child-Soldier Encounters.” Christian Science Monitor, June 27, 2002.

[19] See, e.g., Tyson.

[20] Shannon McManimon, “Child Soldiers in Afghanistan.” American Friends Service Committee, www.afsc.org. Retrieved August 10, 2002.

[21] Hannah Beech Farkhar, “The Child Soldiers.” Time Magazine, July 13, 2002.

[22] Farkhar.

[23] Peter Singer, “Facing Saddam’s Child Soldiers.” Iraq Memo #8, January 14, 2003. Brookings Institution, www.brookings.org. Retrieved January 17, 2003.

[24] Tyson; Human Rights Alliance France and International Federation for Human Rights “Iraq: An Intolerable, Forgotten, and Unpunished Repression.” February 6, 2002 (English version). http://www.fidh.org/communiq/2002/iq2202a.htm. Retrieved January 19, 2003

[25] Singer.

[26] Tyson. See also Grey’s presentation in Center for Emerging Threats and Opportunities, “Child Soldiers – Implications for U.S. Forces Seminar Report,” September 23, 2002.

[27] See, e.g., Neil G. Boothby and Christine M. Knudsen, “Children of the Gun,” Scientific American 282:6 (June 2000): 60-66; and Mike Wessels, “Child Soldiers,” Bulletin of the Atomic Scientists 53:6 (Nov/Dec 1997): 32-40.

[28] See, e.g., Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Boston, MA: Little, Brown, and Company, 1996).

[29] Wendell W. Cultice, Youth’s Battle for the Ballot: A History of Voting Age in America (Greenwood Press: New York, 1992), 2.

[30] Martha Ellen Stortz, “’Where or When Was Your Servant Innocent?’: Augustine on Childhood,” In Marcia Bunge, ed. The Child in Christian Thought. (Grand Rapids, MI/Cambridge, UK: William B. Eerdmans Publishing Company, 2001), 84.

[31] Stortz, 85.

[32] Jane E. Strohl, “The Child in Luther’s Theology: ‘For what purpose Do We Older Folks Exist, Other Than to Care for ...the Young?’”; Barbara Pitkin, “’The Heritage of the Lord’: Children in the Theology of John Calvin.” Both in Marcia Bunge, ed. The Child in Christian Thought. (Grand Rapids, MI/Cambridge, UK: William B. Eerdmans Publishing Company, 2001).

[33] Cristina Traina, “A Person in the Making: Thomas Aquinas on Children and Childhood.” In Marcia Bunge, ed. The Child in Christian Thought. (Grand Rapids, MI/Cambridge, UK: William B. Eerdmans Publishing Company, 2001), 112-113.

[34] Traina, p. 119.

[35] Thomas Aquinas, Summa Theologica, Trans. Fathers of the English Dominican Province (Allen, TX: Christian Classics, 1981) II-I.189.5.

[36] Patrick T. McCormick, “Fit to be Tried?” America 186:4 (February 11, 2002): 15.

[37] Psychologists such as Lawrence Kohlberg have sought to evaluate the validity of moral stages for young adults in a variety of cultures. While it would be fruitful to examine this large body of literature in making a determination about the nature of morality in childhood, this is beyond the scope of this paper. For two contemporary treatments of these issues, see Nancy Eisenberg and Paul H. Mussen, The Roots of Prosocial Behavior in Children (Cambridge: Cambridge University Press, 1989); and Martin Hoffman, Empathy and Moral Development: Implications for Caring and Justice (Cambridge: Cambridge University Press, 2000).

[38] McCormick, “Fit to be Tried?”; Amanda Ripley and David S. Jackson, “Throwing the Book at Kids,” Time 157:11 (March 19, 2001): 34. Forty states now allow children under 18 to be tried in adult courts (“Kids and the Courts,” Christian Science Monitor (November 10, 1999):10). One Texas representative has proposed permitting the trial of 11-year-olds as adults in certain cases.

[39] Suzanne D. Strater, “The juvenile death penalty: In the best interests of the child?” Human Rights: Journal of the Section of Individual Rights & Responsibilities 22:2 (Spring 1995): 10ff. Strater mentions an Amnesty International statement that "the USA is one of only seven countries worldwide to have executed people in the last five years for crimes committed while they were still minors under 18--the others are Iran, Iraq, Nigeria, Pakistan, Saudi Arabia and Yemen."

[40] The National Minimum Drinking Age Law was enacted in 1984, after a series of attempts to raise the drinking age in a number of states. The National Commission Against Drunk Driving estimates that minimum drinking age laws have saved more than 18,000 lives between 1975 and 1998, and notes that while non-alcohol-related traffic fatalities increased for both youth (age not specified) and adults between 1982 and 1998, alcohol-related traffic fatalities decreased by 59% for youth (age not specified) and 30% for adults. (National Commission Against Drunk Driving web site, http://www.ncadd.com/charts/., retrieved August 10, 2002.)

[41] Youth’s Battle for the Ballot, p. 46.

[42] Boothby and Knudsen note, “The Clinton administration signed it in 1995, but conservative senators have held up ratification for reasons unrelated to child soldiers.” The Optional Protocol notes that the Statute of the International Criminal Court, identifies “conscripting or enlisting children under the age of fifteen years or using them to participate actively in hostilities as a war crime in both international and non-international armed conflicts” as a war crime (Introduction).

[43] The punishment of child perpetrators of crimes is also addressed by the protocol, which states that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age” (37(a)). This is consistent with the position that no one under the age of 18 should have to face death as a soldier, perhaps – although the CRC does not say this – even if he is a willing participant in the conflict.

[44] Pauline Kaurin, “Innocence Lost: The Future of the Combatant/Noncombatant Distinction,” Joint Services Conference on Professional Ethics, JSCOPE 2002, http://www.usafa.edu/isme/JSCOPE02/jscope02.html, retrieved August 10, 2002.

[45] As discussed above, Ramsey would not agree with Kaurin’s assessment of the historical treatment of the distinction.

[46] For discussions of asymmetry, see Timothy L. Thomas, “Deciphering Asymmetry’s Word Game, Military Review (July-August 2001); Steven Metz and Douglas V. Johnson II, Asymmetry and US Military Strategy: Definition, Background, and Strategic Concepts, (Carlisle PA: US Army Strategic Studies Institute, January 2001).

[47] Of course, the enemy may not view the American standard as a higher one. First and foremost, it may take ad bellum considerations as paramount, believing that any act is justified if it leads to victory; it may also believe, for example, that it is appropriate for children to participate in combat. While I do not condone adherence to such alternative standards – the argument I make assumes the capacity to make some universal moral judgments – it is important to recognize that these standards do exist.

[48] Singer, “Fighting Saddam’s Child Soldiers.” See also Singer’s “Caution: Children at War,” Parameters (Winter 2001-2002), which appears in the Center for Emerging Threats and Opportunities’ “Child Soldiers – Implications for U.S. Forces Seminar Report,” September 23, 2002.