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COMMITTEE ON RIGHTS OF CHILD CONSIDERS REPORT OF UNITED STATES UNDER OPTIONAL PROTOCOLS ON SALE OF CHILDREN AND CHILDREN IN ARMED CONFLICT
22 May 2008
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Committee on the Rights
of the Child
22 May 2008
The Committee on the Rights of the Child today considered the reports of the United States under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol on children in armed conflict.
Warren Tichenor, Permanent Representative of the United States to the United Nations Office at Geneva and the Head of the Delegation, in opening remarks, said that there was a common desire to protect children from abuse. The United States was honoured to join the Committee’s efforts to protect children from exploitation at the hands of those who victimized society’s most vulnerable.
Mark P. Lagon, the Director of the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, said the United States had made important strides in combating human trafficking, including all forms of commercial sexual exploitation of children. The relevant laws had been strengthened, starting with the Trafficking Victims Protection Act in 2000. The Government had also developed multiple resource materials and expanded training at the federal, state and local level to ensure that law enforcement was aware of the tools at their disposal and understood the meaning and importance of the victim-centered approach.
Turning to children in armed conflict, Mr. Lagon stated that the United States had been an active participant in the negotiation of the Optional Protocol on children in armed conflict and had offered a draft text before the last session of its negotiation, aspects of which were incorporated into the final text. The United States was deeply concerned by the coercive use of children in armed conflict. Around the world, the United States sought to prevent and undo the harms resulting from the involvement of children in armed conflict, such as in the Democratic Republic of Congo. The coercive use of children in armed conflict was not permitted in the United States or in the United States Armed Forces and substantive measures had been taken to rehabilitate victims of this practice abroad.
In her preliminary concluding remarks on the report under the Optional Protocol on the sale of children, child prostitution and child pornography, Yanghee Lee, the Chairperson of the Committee who served as the Rapporteur for the report, said that the dialogue had been very good and helped the understanding of the Committee. She reiterated that the victim centered approach was the most important approach, and that more data concerning the offences outlined in the Protocol was needed. She urged the United States to strengthen its activities domestically, so that children were also treated as victims and not as offenders.
Kamel Filali, the Committee Expert acting as Rapporteur for the report under the Optional Protocol on children in armed conflict, thanked the delegation for an open and constructive dialogue. The concluding recommendations would reflect the satisfaction of the Committee with the progress that had been made, and reflect some preoccupations concerning the implementation measures.
Luigi Citarella, the Committee Expert acting as Co-Rapporteur for the report under the Optional protocol on children in armed conflict, also thanked the delegation for the good dialogue and said that specific recommendations would be made at the end of the session.
On the Optional Protocol on the sale of children, child prostitution and child pornography, main concerns of Experts centred on, among other things, the non-self-executing nature of the Optional Protocol; the domestic view of children as offenders not as victims of child prostitution; harmonization between federal and state laws; assistance for child victims for rehabilitation and recovery; measures concerning child victims facing their perpetrators at court; and the definition of trafficking.
Concerning the Optional Protocol on children in armed conflict, Experts asked question related to the recruitment process; the diffusion and distribution of the Optional Protocol; conditions and requirements of detention; private organization contractors; detainees in Iraq and Guantanamo and court trials against juveniles; and universal jurisdiction.
The Committee will release its formal, written concluding observations and recommendations on the reports of the United States towards the end of its three-week session, which will conclude on Friday, 6 June.
The delegation of the United States also included other representatives from the Department of State, the Department of Defense, the Department of Justice of the Undersecretary for Personnel, the Department of Health and Human Services, the Department of Homeland Security, and the Department of Justice.
When the Committee next reconvenes in public, at 10 a.m. on Friday, 23 May, it will take up the initial reports of the Republic of Korea on the Optional Protocols on the Convention on the Rights of the Children on the sale of children, child prostitution and child pornography and children in armed conflict (CRC/C/OPSC/KOR/1; CRC/C/OPAC/KOR/1).
Report of the United States on the Protocol on the Sale of Children, Child Prostitution and Child Pornography
In its introduction, the initial report of the United States states that it is especially important for the United States that the Optional Protocol contains effective and practical strategies to prosecute and penalize those who commit crimes involving child prostitution, child pornography and trafficking in children. The United States was able to become a party to the Protocol because it had signed the Convention on the Rights of the Child, although the United States assumed no obligations under the Convention by becoming a party to the Protocol. Prior to United States ratification of the Protocol, it was ensured that United States federal and state laws satisfied the substantive requirements of the Protocol. Accordingly, no new, implementing legislation was required to bring the United States in compliance with the substantive obligations that it assumed under the protocol, although a technical legal lacuna caused the United States to enter a reservation with respect to offences committed on board of ships or aircrafts registered in the United States. The provisions of the Protocol were not self-executing under United States domestic law with one exception of Article 5. The report sets out in detail legal measures and definitions applied by the State party regarding criminalization, jurisdiction, extradition, mutual legal assistance, seizure and confiscation, protection of child victims, prevention and international cooperation and assistance.
Report of the United States on the Protocol on Children in Armed Conflict
In its introduction, the initial report of the United States states that no implementing legislation is required with respect to the United States ratification of the Protocol since current United States law met the standards in the Protocol. The Protocol was subject to ratification or open for accession by any State, i.e., it was not limited to States parties to the Convention on the Rights of the Child. By ratifying the Protocol, the United States did not become a party to the Convention on the Rights of the Child, or assumed any rights or obligations under that Convention. The report gives detailed information on measures and developments relating the implementation of the Protocol, starting with its understanding of the terms of ‘feasible measures’ and direct part in hostilities’ in article 1 of the Protocol. The report sets out that prior to the United States’ ratification of the Protocol, the United States generally supported an age 17 standard for participation in hostilities. However, the Department of Defense had reviewed its practice and decided that it could support adoption of a rule that would require that the United States took ‘all feasible measures’ to ensure that persons under the age of 18 would not take a ‘direct part in hostilities’. The United States had contributed substantial resources to international programmes aimed at preventing the recruitment of children and reintegrating child ex-combatants into society and was committed to continue to develop rehabilitation approaches that were effective in addressing this serious and difficult problem.
Presentation of the Reports
WARREN TICHENOR, Permanent Representative of the United States to the United Nations Office at Geneva and the Head of the Delegation, in opening remarks, said that there was a common desire to protect children from abuse. The United States was honored to join the Committee’s efforts to protect children from exploitation at the hands of those who victimized society’s most vulnerable.
MARK P. LAGON, Director of the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, and Chair of the Senior Policy Operating Group on Trafficking in Persons, highlighted overall efforts by the United States to address the sale of children, child prostitution and child pornography as well as the path forward for further enhancing the efforts of the country.
The United States had made important strides in combating human trafficking, including all forms of commercial sexual exploitation of children. The relevant laws had been strengthened, starting with the Trafficking Victims Protection Act in 2000. The Government had also developed multiple resource materials and expanded training at the federal, state and local level to ensure that law enforcement was aware of the tools at their disposal and understood the meaning and importance of the victim-centered approach. The Government of the United States continued to expand its assistance to foreign victims of trafficking by authorizing access to social services and through the provisions of grants to civil society organizations. It had also worked to protect children from sexual exploitation and pornography through major public awareness and educational efforts. They had worked to promote interagency coordination through multiple task forces. Internationally, the United States had spent over $ 528 million for international anti-trafficking programmes since 2001 in approximately 120 countries.
The United States recognized that they had areas for improvement. This year’s “Assessment of Government Efforts to Combat Trafficking in Persons” had identified specific needs for improvement, including the same identification, protection and assessment of all United States citizen victims and foreign national victims, expeditious efforts to identify victims, provide care and secure immigration relief, access to services and benefits for all child victims of human trafficking regardless of their ability and willingness to assist law enforcement and expanded development of educational materials.
Turning to children in armed conflict, Mr. Lagon stated that the United States had been an active participant in the negotiation of the Optional Protocol on children in armed conflict and had offered a draft text before the last session of its negotiation, aspects of which were incorporated into the final text. The United States was deeply concerned by the coercive use of children in armed conflict. Around the world, the United States sought to prevent and undo the harms resulting from the involvement of children in armed conflict, such as in the Democratic Republic of Congo. The coercive use of children in armed conflict was not permitted in the United States or in the United States Armed Forces and substantive measures had been taken to rehabilitate victims of this practice abroad.
SIGAL P. MANDELKER, Deputy Assistant Attorney General, in her opening remarks, said that the Department of Justice dedicated itself to enforcing the expansive United States laws related to the sale of children, child prostitution and child pornography with a victim-centered approach and the knowledge and sense of obligation to do everything possible to bring perpetrators to justice and stop them from abusing other children in the future. With this primary goal in mind, the Department had strategically focused and increased its efforts to combat child exploitation. She then drew the attention of the Committee to several initiatives and projects recently launched by the Department, including the Project Safe Childhood, designed to protect children from online exploitation and abuse which was built upon the Internet Crimes against Children Task Forces programme, designed to help state and local law enforcement agencies to acquire knowledge, equipment and personnel resources; the Innocence Lost Initiative, combating domestic prostitution of children; and various regional anti-trafficking task forces and public awareness campaigns.
Gary K. KING, New Mexico Attorney General, in his opening remarks, said that an Agreement of Understanding that his office and the office of the Attorney General for the Mexican State of Chihuahua had concluded to combat human trafficking on both sides of the shared international border addressed the problem of what amounted to human slavery of citizens from both countries. The fight to protect children in New Mexico had also been aided by the recent adoption of a law that defined the practice of human trafficking as a felony crime. The biggest challenge was to convince legislators and the public in general that human trafficking was not the same as the smuggling of contraband, for which many laws already applied. The next challenge was to seek out and prosecute anyone who would sell a child into slavery, sex abuse, prostitution or pornography. The goal was to make it so difficult and costly for the perpetrator that human trafficking would be a crime that ended in our lifetime. He concluded by stating that the forging of this historic local agreement with international ramifications between the United States and Mexico by two state government officials was a testimony to the cooperation between the individual staff members combined with the support of the respective federal governments.
SANDRA L. HODGKINSON Deputy Assistant Secretary of Defense, in her opening remarks concerning the Optional Protocol to the Convention on children in armed conflict, said that since 1973 the United States Military had been an all-volunteer force, with the overwhelming majority of new recruits being over 18 years of age, and more than 90 per cent having at least a high school diploma. Those who were 17 year old could enlist with written permission from their parents or legal guardians. Each military service had policies in place to ensure all feasible measures were taken that no one under the age of 18 engaged directly in hostilities, and the military departments had checks in their personnel systems to ensure adherence to the provisions of the service policies. The United States did detain juveniles who had engaged its forces on the battlefield to remove them from the dangerous effect of combat and to protect its forces and innocent civilians. The United States went to great lengths to attend to the special needs of juveniles while they were in detention, such as in Iraq and Afghanistan. She drew attention to the fact that no more than 8 juveniles were detained at Guantanamo Bay, with two individuals who were juveniles at the time of their detention currently facing criminal charges under the Military Commissions Act of 2006. She stressed that the Optional Protocol on children in armed conflict did not prohibit criminal prosecution of those under the age of 18, nor did it prohibit the detention of juveniles. It was not unprecedented for juveniles to face the possibilities of a war crimes trial. In this regards, she drew the attention of the Committee to provisions of the Geneva Conventions and its protocols and the practice of United Nations international tribunals. She concluded by stating that the United States had contributed substantial resources to international programmes aimed at preventing the recruitment of children and reintegrating former child soldiers into society.
Questions by the Experts on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
YANGHEE LEE, Chairperson of the Committee serving as Rapporteur on the Report of the United States, welcomed the ratification of the Optional Protocol to the Convention on the Right of the Child on the sale of children, child prostitution and child pornography as well as the ratification of a number of other international conventions and the passing of several pieces of legislation that clearly showed the commitment to fight commercial sexual exploitation of children.
She stated that the State party report was a very legalistic report, which did not follow the revised reporting guidelines. The Committee adopted reporting guidelines, expecting that they would be adhered to. The Committee would have benefited more if there had been some critical self analysis, including factors and difficulties affecting the degree of fulfillment of the obligations under the Protocol. She asked if the report also covered all areas over which the United States continued to exercise sovereignty; could the delegation clarify its statement that the provisions of the Protocol were not self-executing under United States domestic laws and how laws in the United States could be consistent with the requirements of article 3(2) of the Protocol; could the State party request extradition of the author of one of the offences covered by the Protocol if the author or the victim was or was not a United States national, the offence was not criminalized in the requested country, and there was no extradition treaty with the requested country; the fact that children were viewed as offenders not as victims of child prostitution; harmonization between federal and state laws; and assistance for child victims for rehabilitation and recovery. She also asked the delegation for the provision of more research and data, information on issues of adoption in light of the Hague Convention and if there were plans to withdraw the reservation made upon the ratification of the Protocol.
In further questions, one Expert said that in the United States, children had to appear before court in cases of abuse. Laws in the United States allowed other measures to be adopted if a child was not able to face the perpetrator. However, the Committee faced the problem that each state in the United States had different procedures. He asked how the Committee could be sure that each state respected the specific status of a child as a victim in procedures, and was this status in accordance with Article 8 of the Protocol. How did the federal government ensure that all states followed the rules of procedure? Another Expert asked how spending power and interstate trade issues were working in relation to the New Mexico agreement? How were the states involved in the ratification of the Optional Protocol? Were visual images in cartoons or cartoon like images captured by the United States definition of child pornography? With regard to the reunification of trafficking victims with their families in their countries of origin, did the United States ensure that the country of origin was a safe place for the child and that the family was a safe place for the child to be?
Several Experts stressed that it was very important for the United States to ratify the Convention. Concerning the fact that the United States had assumed no obligations concerning the Convention because of the ratification of the protocol, what weight was the United States thus giving to its signature? Referring to the broad definition of trafficking in the Report on Trafficking, which lead to problems due to the inclusion of early marriage and child labour as trafficking, how did the United States define “trafficking”? Other questions related to the issue of direct applicability of the Protocol and effects on the rights of the child to be heard before an American court; the lack of new laws to ensure compliance with the provisions of the Protocol; were there measures planned to ensure that the national laws covered crimes committed outside of the United States; were crimes recognized in cases where no extradition was possible; difficulties related to inter-agency coordination and the suggestion to develop a national plan of action; policies and measures, results and challenges regarding prevention in the field of sexual exploitation; research of the root causes of child abuse in the context of prevention; alignment of accreditation issues for organizations in adoption procedures to the Hague Convention and the Protocol; the relationship between the federal government and the states in the protection of children and the exercising of jurisdiction; decriminalization of prostitution for the victims in the states; information on civil remedies; was the crime of sale criminalized in the national legislation?; preventive education for American sex tourists; opportunities for further implementation of the Protocol; consequences for tentative offenders; and different treatment of offences on and outside of American soil.
Answers by the Delegation
In response to the questions of the Committee, the delegation said that with regard to the issue of federalism, it was difficult for the federal Government to exercise any amount of control over the states, especially with regard to criminal laws. There were federal laws overarching everything, for example human trafficking, and the states complied with them. Another way of impact was through federal funding with prohibitions applied to it. However, for example the state of Mexico thought its programme was better than the deferral, so it did not take the federal funding. Regarding the Law of Confrontation of the Accuser, specifically in Mexico, the law did not require someone under 16 to face their perpetrator, yet, exceptions were made also for children over 16 to protect the victim. However the federal constitution guaranteed the perpetrator to see their accuser, which created a problem. The cooperation of Mexico with the federal Government had been very beneficial for children, especially through federal Government money. Addressing the needs of victims, Mexico had a task force including non-governmental organizations and state agencies, and that coordination helped the state to deal with the needs of victims and provide services. Training of law enforcement officers was provided, and a meeting was put together with counterparts from Chihuahua regarding the implementation of the Memorandum of Understanding. The delegation stressed that it was the individual people such as specific staff members in New Mexico and the Mexican state of Chihuahua who brought things forward.
The delegation apologized for the legalistic nature of its report, but stressed that the discussion in this area by nature had to be legalistic, as it involved questions of international and national laws. The delegation stressed that the United States was not closing a door to better implementation of the Protocol. The United States became a party to a treaty after it was ensured that all obligations could be complied with. If the initial assessment after the treaty was adopted showed that not all necessary national laws were in place, the Government would make sure these laws would be enacted. With regard to the obligations of Protocol, and in particular article 8, in consistency with human right treaties, the general term “appropriate measures” was frequently applied. The broad definition was meant to ensure freedom of space for States parties to implement this article. When the Government looked at article 8 before ratification of the Protocol, it decided that the states were doing a good job in implementing the obligations.
Treaties were sent to the Senate for evaluation. The Senate was made up of all 50 states, so that inclusion of states was ensured in the process. In regard to self-execution of treaties, this was only a term to describe if the treaty had direct effect in the country, not an excuse to get out of obligations. The effect of signature of the Convention of the Right of the Child and the statement of no obligations being taken over only meant that the United States would not take up new obligations. On the reservations and understandings of the United States, the delegation pointed out that there was a technical gap identified in the run up to the ratification related to offences on board of ships or aircrafts, and it was considered wise to set that up in a reservation. However, there was no information that the reservation had any serious effects or caused problems. Regarding understandings on the Hague Convention, this was simply saying that the United States was not a party to the Convention, but expected to become a party, and that until they had no obligations under the Convention. As the United States had ratified the Convention, the understanding had no further current effect.
Regarding the question of extradition, when there was no extradition treaty, the delegation noted that article 5(5) applied to a situation where many countries in the world did not extradite their nationals. However, the descending country could not get out of its obligation, and the United States did extradite its nationals. There was no obligation under article 5(5) to establish jurisdiction if it was not covered under Article 4. If a non-United States national committed a crime in another country, he/she could in some cases be brought to trial in the United States when he/she was in the country, they could be removed under the immigration laws.
On the definition of trafficking under the United States trafficking law, the movement across a border was included in the definition but it was in fact the control or gross exploitation which was the main aspect of the crime. Concerning the sale of children, the delegation understood the specific interest of the Committee and was happy to give further information. Generally speaking, when the United States raised concerns with other countries, the terms should be the same. Concerning the sale of organs, the United States had the position that a child may be able to donate an organ if sufficient legal provisions existed.
Regarding the Hague Convention and adoption issues, the delegation said that it had not expected this to be included in the discussion and therefore had not prepared answers on this topic.
The delegation said that the United States did criminalize and prosecute the sale of children independently from trafficking. Many statutes included the attempt of a crime and the same penalties were applied. The federal approach to the question of victims of child prosecution was that these children needed to be treated as victims. The targets were the individuals who enticed these children and abused them. Also, as a general matter, juveniles were not prosecuted and there would never be prosecution of a child. The Innocent Lost Initiative, a partnership of several relevant institutions and departments, tried to export this approach, trying to rescue children and prosecute the people who enticed them. Also, a number of training courses were held across the country. It was hoped that States looked at the federal approach, even though there may be cases in the states where the officers may not know the age of the child, or an arrest was the only way to protect a child from imminent dangers. However, this was the great exception and not the rule.
Regarding the question of coordination, the delegation said that this was the key to child protection, and that the United States was cooperating in all its child exploitation efforts with different actors in different federal districts of the country. Integrated partnership was a pillar of programmes and federal and state law enforcement addressed the problems in a coordinated approach.
Profits from criminal activities were forfeited and laws existed regarding restitution, such as the obtainment of trust funds from perpetrators. Laws for civil remedies were available, as well as criminal remedies. The United States shared the concern about animation in child pornography. Child pornography was growing and by its very nature provided a threat to children everywhere. It was particularly dangerous that animation was becoming so prolific as a sexualization and enticement of children. As such, the United States courts were prosecuting every aspects of child pornography, including animation. With respect to the prevention of sex tourism, the attempted crime approach was used with regards to individuals who would seek to go on a tour and who would seek to obtain a child. Regarding a universal jurisdiction for sex tourism committed outside the United States, the Protect Act of 2003 was trying to hold adults using children outside the country responsible within the United States. There had been 65 convictions since the enactment of that law. As this kind of prosecutions was very expensive and time consuming, the United States tried to increase the prosecution of the attempt of such crimes. The obligations of the Protocol extended through all the territories of the United States.
The T-visa was born out of the victim centered spirit and it was available to petitioners who proved they were victims of trafficking. The petitioner had to be in the United States to apply for it and it was valid for four years. Once the visa was awarded the victim received the same services and support as refugees. There was also a U-visa, which applied to victims of several crimes not just trafficking, and which was available also to victims who were outside the United States.
With regard to demand, the United States Government had tried to address the demand to abuse children sexually. One of the measures was a new model programme which educated customers of commercial sex. The model was replicated in other countries, including “South Korea”. Promotion campaigns aimed at different stakeholders and building cooperation. Discussions with case managers were held on a variety of topics through a variety of activities. Civil society was engaged by an award, the money of which had to be used for grass-root entities. Programming innovative new ways for demand reduction were also identified. The Family and Youth Services Bureau was a partner of the government for a street outreach programme targeting run away, homeless and throw away youth, at risk for sexual exploitation, prostitution and trafficking. Two years ago, an in-reach campaign had been launched without any funding, which led to partnering between different departments and services within the Government. One of the projects out of this campaign was a project on the collection of data on the types of exploitation that homeless youth faced. The United States considered the responsibility to raise awareness of the public regarding the Protocol as very important and appreciated suggestions and support in this.
In the interest of brevity, the delegation referred the Committee to the report which set out the studies done by the Government. Another study had produced papers on the examination of shelters and trauma-informed care.
Preliminary Concluding Remarks on Report under Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
YANGHEE LEE, the Rapporteur for the Report of the United States of the Sale of Children, Child Prostitution and Child Pornography, in preliminary concluding observations, said the dialogue had been very good and helped the understanding of the Committee. She reiterated that the victim centered approach was the most important approach, and that more data concerning the offences outlined in the Protocol was needed. She urged the United States to strengthen its activities, so that children domestically were also treated as victims and not as offenders.
Questions by the Experts on the Optional Protocol on Children in Armed Conflict
KAMEL FILALI, the Committee Expert serving as Rapporteur for the Report of the United States, pointed out that the United States was known for its engagement in human rights. The ratification of the two Protocols and the ILO Convention were good steps for the implementation of the rights of the child. He asked a question regarding the terms used in the report, mainly in paragraphs 7, 8 and 9. Was the notion of participation, which was seen as weakening the protection of the child, still intangible or were improvements possible? Were there any court procedures for children under 18 and were the cases reported and which follow up was given to these cases. He also asked for clarification regarding concerns towards children from ethnic minorities, as well as how the No-Child-Left-Behind Act did take into account the consent of the children and parents. He raised concerns about conduct of recruiters, in particular the handbook given to recruiters and what limits were set for the recruitment process?
Were children fully informed about the duties of entry in military service? Was it possible for a recruited soldier to withdraw from military service, and what were consequences of disobedience?
LUIGI CITARELLA, the Committee Expert Acting as Co-Rapporteur for the Report of the United States, raised a question concerning the diffusion and distribution of the Optional Protocol and the knowledge of people working in the field. Was there a special attention given to the Protocol in military schools and in armed offices of the Department of Defense? Were there practical or manual instructions given to commanders working all over the world? What happened when child soldiers were captured, were there differences of imprisonment or detention in comparison to adults? How long were children kept in detention in cases of armed conflicts which did not qualify as “war”? Referring to conditions of combating groups that were not pertained to a particular country, he asked what precautions were applied to prevent children being enrolled in private organizations acting within an armed conflict in a country?
Other questions raised by Experts related to the provision of education, health and judicial services to child soldiers detained in Iraq; whether the Government of the United States was happy about the legal but sometimes very aggressive recruiting done by the recruiters, also targeting very young children; was it made clear to children that they were not forced to enlist, in particular with regards to late entry registration for 17 year olds; was there a need to maintain all the understandings made by the United States; what training was provided to officials on human rights and rights of the child; how were safe passages and safe schools ensured for non-combatant children in areas of conflict; could the delegation explain the number of 2,400 children which were detained in Iraq, and the high detention rate of 100 new children a month, as well as the lack of representatives, charges and trials for these children and the length of detention, often without trial for over a year; referring to the detention of children in Guantanamo, could the delegation give more information about the third detainee in Guantanamo, a 21 year old boy who was said to be held in the cell for 22 hours a day and had tried to commit suicide three times already; concerning the other two child detainees held in Gunatanamo, who committed acts when they were under 18, for which they were charged under the Military Commissions Act, were all rights recorded to these juveniles, such as the special provisions of the Act concerning juveniles; what process was applied to assess the needs of the individual child when arriving in detention centers; what was the legislation regarding the private sale of arms by manufacturing countries to countries which used child soldiers; and did the delegation see the junior officer reserve training programmes in which high school students from age 11 were enrolled as a use of school education to promote military services?
What stage were the draft child soldiers prevention act and draft child soldiers accountability act of 2007 at? Did the legal system allow for universal jurisdiction and did the United States encourage draft laws for universal jurisdiction? Were the concepts of peace, human rights and children’s rights included in the curriculum of schools, in particular military schools? Why were parents only involved at the very end of the recruitment process? Were activities by military corps at schools conducted within school hours, maybe even school lessons, and were they under the supervision of school heads? Other questions related to clear complaint mechanisms against recruiters; mechanisms to ascertain the age of a child; visits of family and international aid organizations to detained children; military sanctions specifically for children; capital punishment as disciplinary sanctions to a child below 18; plans of the United States to sign the Ottawa Convention; accessibility of judicial services for detainees; financial incentives from the governments to schools to support military recruitment; and the overrepresentation of the most vulnerable population in the military, in particular under female soldiers.
Answers by the Delegation
The delegation said that the meaning of article 1 was that feasible measures and direct part in hostilities were the words of the article, carefully chosen by the negotiators. The terms had clear meanings in international law, such as the Geneva Conventions, and as such well understood. They were disputed in the negotiations, so that the current terms were decided upon by the negotiators, not by the United States. Thus, the United States was simply using these agreed terms. Forward deployment was not part of the understanding of the United States of the meaning, and had been addressed by national laws. “Recruitment” included two different kinds of recruitment, voluntary and compulsory, and it meant the time of entry into the armed forces, not the further meaning of encouraging people to enter. At the time of entry, strict procedures ensured specific requirements to be in place and executed.
Article 6(3) had been used to obstruct the long standing rule in international law that combatants under the age of 18 could be detained and prosecuted for war crimes. Any penalty except for the death penalty was permitted. It was important to note that this Protocol did not disturb the long standing rules of international humanitarian law, including the Geneva Conventions. There were no current plans to ratify either the Rome Statute or the Ottawa Convention. The United States was a signatory to the Additional Protocol to the Geneva Convention, and had no intention to ratify it in the near future.
A special act on arms sales was in place including human rights considerations. Countries of concern were considered, one of the concerns being the use of child soldiers. The sale of arms was not approved in cases of severe human rights violations. The delegation mentioned Sri Lanka as an example of specific human right assessment.
Legislation concerning people committing war crimes which fell under the jurisdiction of the United States was in place guaranteeing that those cases were dealt with in American courts.
The two draft conventions on child soldier prevention and accountability were not yet approved. Concerning contractors to service contracts in an active area of conflict, there were strict rules and regulations for the recruitment, including age limitations to 21. Any war crimes committed by American citizens could be prosecuted under the War Crimes Act. Non-American citizens committing war crimes abroad against non-American victims were not covered by the act. However, there were strict immigration laws in place that ensured that these individuals could not enter or remain in the United States.
When an individual appeared in a detention center and asked for asylum as a former child soldier, he/she was interviewed by an asylum officer, taking into consideration the child’s age. Any harm the child may have encountered was also observed. After the personal interview, the entirety of the case was considered in order to determine if the child should be allowed asylum. If the child had voluntarily engaged in violent actions, the case may be rejected. Cases could then be forwarded to an immigration judge, the decision of which could be appealed by the child soldier. If the application was rejected by all institutions, the child could still ask for protection under the Convention against Torture application. The delegation pointed out that only in one case was a child resent to his country.
Concerning the recruitment service, the number of veterans had declined constantly, which led to an urgent need for recruiters; there were checks and balances in place to keep the recruitment force within its boundaries; recruitment was making sure that the population was aware of and noticed the importance of the military services; advertising campaigns were in place, with the primary market being the youth population between 18 and 24. However, the graduate system meant that people graduated from 17 onwards, which was the time when you made career decisions. As such, the Government allowed recruitment already from this age on, and the age limit was secured by the requirement of the presentation of two official identification documents at the time of recruitment. The recruitment process was not a trivial process, and required the mandatory agreement and signature by the parents. No-Child-Left-Behind Act and Hutchinson policies required detailed identification, as well as provided notification of the opt-out-option to parents. Aggressive recruiting information given to the Committee might not have been fully in line with the actual recruitment practice. The completion of high school was a main priority of the Government. The curriculum of the military high school programme was implemented into school curricula, ensuring students to succeed at school and in life in general. It was a voluntary programme, in which 3,300 schools were already involved in it with 1,700 schools waiting to be included in the programme. The incentive was that the school had to pay for half the programme, and the military paid for the other half, and the school principle had supervision on the execution of the programme. Every child who applied for recruitment was handed over a card setting out his rights in the process. The recruitment process was covered by military justice law, not civil law. The contract had an opt-out-clause that could be exercised before being shipped for training and opportunities for appeals were in place. The recruitment process was not a quick process, but most applicants did at least two visits at the recruitment office to get all the information on a career in the military. The information for parents was given in the relevant immigration language. As Spanish was the second language in the United States, there were Spanish websites setting out all the necessary details of the recruitment process. Monetary incentives were paid at the end of the introductory programme, which minimized the amount of money to be repaid. Education incentives were also given, for which no payback rule existed. Only citizens of the United States or permanent legal aliens who had gone through a fairly extensive immigration process could enter the military services. There was a maze of laws concerning illegal child recruitment, however, no specific law on child recruitment existed.
Concerning the situation of detainees, the delegation pointed out that the difficult determination of the juvenile was done by a serious of screening procedures in all areas of the detention, including interviews and several review boards. The vast majority of detainees were released after the first level screening if the individual was a specific threat to security. Once moved into the juvenile facilities, the juvenile was treated differently from adults according to relevant laws and programmes in place. In Iraq, no juvenile was detained for more than 365 days, with a 6 months review being executed. Parents were involved in the education provided to the juveniles and the programme was proved very successful. The number of 2,400 juveniles was correct. The United States was not denying that it did detain juveniles, however, best efforts were being made to address the needs of these juveniles in detention. The goal was to give them a better education while in detention, and to rehabilitate them as active members back into society. Counseling and mental health assistance, civic education, more family visits, a safe environment separate from the adult area, sports facilities and access by the International Committee of the Red Cross were available for detained juveniles in Iraq. In Afghanistan, there was not such a robust system as in Iraq, but efforts were made to implement the best practice from Iraq, and to keep juveniles in close contact with their families. The recidivism rate of released juveniles had dropped significantly, and the rehabilitation of juveniles was closely monitored. Juveniles were held in detainment centers not necessarily because they had committed a war crime, but because they had been involved in armed combat. In Iraq, Iraq tribunals were looking at the facts from the time of capture in cases of juveniles charged with crimes. For those detained for involvement in armed combat, the goal was to keep those juveniles out of active combat and ensure rehabilitation. The goal was to release them as soon as rehabilitation and the safety of the forces were guaranteed.
Concerning the Military Commissions Act, it was correct that two detainees in Guantanamo were facing trials. Concerning the Understandings, these were only explanations of how the country understood its understanding of specific provisions. So there was no need to revise those.
Preliminary Concluding Remarks
KAMEL FILALI, the Committee Expert serving as Rapporteur for the Report, in preliminary concluding remarks, thanked the delegation for an open and constructive dialogue. The concluding recommendations would reflect the satisfaction of the Committee with the progress that had been made, and give some preoccupations concerning the implementation measures.
LUIGI CITARELLA, the Committee Expert acting as Co-Rapporteur for the Report, also thanked the delegation for the good dialogue and said that specific recommendations would be made at the end of the session.
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For use of the information media; not an official record
of the Child
22 May 2008
The Committee on the Rights of the Child today considered the reports of the United States under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol on children in armed conflict.
Warren Tichenor, Permanent Representative of the United States to the United Nations Office at Geneva and the Head of the Delegation, in opening remarks, said that there was a common desire to protect children from abuse. The United States was honoured to join the Committee’s efforts to protect children from exploitation at the hands of those who victimized society’s most vulnerable.
Mark P. Lagon, the Director of the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, said the United States had made important strides in combating human trafficking, including all forms of commercial sexual exploitation of children. The relevant laws had been strengthened, starting with the Trafficking Victims Protection Act in 2000. The Government had also developed multiple resource materials and expanded training at the federal, state and local level to ensure that law enforcement was aware of the tools at their disposal and understood the meaning and importance of the victim-centered approach.
Turning to children in armed conflict, Mr. Lagon stated that the United States had been an active participant in the negotiation of the Optional Protocol on children in armed conflict and had offered a draft text before the last session of its negotiation, aspects of which were incorporated into the final text. The United States was deeply concerned by the coercive use of children in armed conflict. Around the world, the United States sought to prevent and undo the harms resulting from the involvement of children in armed conflict, such as in the Democratic Republic of Congo. The coercive use of children in armed conflict was not permitted in the United States or in the United States Armed Forces and substantive measures had been taken to rehabilitate victims of this practice abroad.
In her preliminary concluding remarks on the report under the Optional Protocol on the sale of children, child prostitution and child pornography, Yanghee Lee, the Chairperson of the Committee who served as the Rapporteur for the report, said that the dialogue had been very good and helped the understanding of the Committee. She reiterated that the victim centered approach was the most important approach, and that more data concerning the offences outlined in the Protocol was needed. She urged the United States to strengthen its activities domestically, so that children were also treated as victims and not as offenders.
Kamel Filali, the Committee Expert acting as Rapporteur for the report under the Optional Protocol on children in armed conflict, thanked the delegation for an open and constructive dialogue. The concluding recommendations would reflect the satisfaction of the Committee with the progress that had been made, and reflect some preoccupations concerning the implementation measures.
Luigi Citarella, the Committee Expert acting as Co-Rapporteur for the report under the Optional protocol on children in armed conflict, also thanked the delegation for the good dialogue and said that specific recommendations would be made at the end of the session.
On the Optional Protocol on the sale of children, child prostitution and child pornography, main concerns of Experts centred on, among other things, the non-self-executing nature of the Optional Protocol; the domestic view of children as offenders not as victims of child prostitution; harmonization between federal and state laws; assistance for child victims for rehabilitation and recovery; measures concerning child victims facing their perpetrators at court; and the definition of trafficking.
Concerning the Optional Protocol on children in armed conflict, Experts asked question related to the recruitment process; the diffusion and distribution of the Optional Protocol; conditions and requirements of detention; private organization contractors; detainees in Iraq and Guantanamo and court trials against juveniles; and universal jurisdiction.
The Committee will release its formal, written concluding observations and recommendations on the reports of the United States towards the end of its three-week session, which will conclude on Friday, 6 June.
The delegation of the United States also included other representatives from the Department of State, the Department of Defense, the Department of Justice of the Undersecretary for Personnel, the Department of Health and Human Services, the Department of Homeland Security, and the Department of Justice.
When the Committee next reconvenes in public, at 10 a.m. on Friday, 23 May, it will take up the initial reports of the Republic of Korea on the Optional Protocols on the Convention on the Rights of the Children on the sale of children, child prostitution and child pornography and children in armed conflict (CRC/C/OPSC/KOR/1; CRC/C/OPAC/KOR/1).
Report of the United States on the Protocol on the Sale of Children, Child Prostitution and Child Pornography
In its introduction, the initial report of the United States states that it is especially important for the United States that the Optional Protocol contains effective and practical strategies to prosecute and penalize those who commit crimes involving child prostitution, child pornography and trafficking in children. The United States was able to become a party to the Protocol because it had signed the Convention on the Rights of the Child, although the United States assumed no obligations under the Convention by becoming a party to the Protocol. Prior to United States ratification of the Protocol, it was ensured that United States federal and state laws satisfied the substantive requirements of the Protocol. Accordingly, no new, implementing legislation was required to bring the United States in compliance with the substantive obligations that it assumed under the protocol, although a technical legal lacuna caused the United States to enter a reservation with respect to offences committed on board of ships or aircrafts registered in the United States. The provisions of the Protocol were not self-executing under United States domestic law with one exception of Article 5. The report sets out in detail legal measures and definitions applied by the State party regarding criminalization, jurisdiction, extradition, mutual legal assistance, seizure and confiscation, protection of child victims, prevention and international cooperation and assistance.
Report of the United States on the Protocol on Children in Armed Conflict
In its introduction, the initial report of the United States states that no implementing legislation is required with respect to the United States ratification of the Protocol since current United States law met the standards in the Protocol. The Protocol was subject to ratification or open for accession by any State, i.e., it was not limited to States parties to the Convention on the Rights of the Child. By ratifying the Protocol, the United States did not become a party to the Convention on the Rights of the Child, or assumed any rights or obligations under that Convention. The report gives detailed information on measures and developments relating the implementation of the Protocol, starting with its understanding of the terms of ‘feasible measures’ and direct part in hostilities’ in article 1 of the Protocol. The report sets out that prior to the United States’ ratification of the Protocol, the United States generally supported an age 17 standard for participation in hostilities. However, the Department of Defense had reviewed its practice and decided that it could support adoption of a rule that would require that the United States took ‘all feasible measures’ to ensure that persons under the age of 18 would not take a ‘direct part in hostilities’. The United States had contributed substantial resources to international programmes aimed at preventing the recruitment of children and reintegrating child ex-combatants into society and was committed to continue to develop rehabilitation approaches that were effective in addressing this serious and difficult problem.
Presentation of the Reports
WARREN TICHENOR, Permanent Representative of the United States to the United Nations Office at Geneva and the Head of the Delegation, in opening remarks, said that there was a common desire to protect children from abuse. The United States was honored to join the Committee’s efforts to protect children from exploitation at the hands of those who victimized society’s most vulnerable.
MARK P. LAGON, Director of the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, and Chair of the Senior Policy Operating Group on Trafficking in Persons, highlighted overall efforts by the United States to address the sale of children, child prostitution and child pornography as well as the path forward for further enhancing the efforts of the country.
The United States had made important strides in combating human trafficking, including all forms of commercial sexual exploitation of children. The relevant laws had been strengthened, starting with the Trafficking Victims Protection Act in 2000. The Government had also developed multiple resource materials and expanded training at the federal, state and local level to ensure that law enforcement was aware of the tools at their disposal and understood the meaning and importance of the victim-centered approach. The Government of the United States continued to expand its assistance to foreign victims of trafficking by authorizing access to social services and through the provisions of grants to civil society organizations. It had also worked to protect children from sexual exploitation and pornography through major public awareness and educational efforts. They had worked to promote interagency coordination through multiple task forces. Internationally, the United States had spent over $ 528 million for international anti-trafficking programmes since 2001 in approximately 120 countries.
The United States recognized that they had areas for improvement. This year’s “Assessment of Government Efforts to Combat Trafficking in Persons” had identified specific needs for improvement, including the same identification, protection and assessment of all United States citizen victims and foreign national victims, expeditious efforts to identify victims, provide care and secure immigration relief, access to services and benefits for all child victims of human trafficking regardless of their ability and willingness to assist law enforcement and expanded development of educational materials.
Turning to children in armed conflict, Mr. Lagon stated that the United States had been an active participant in the negotiation of the Optional Protocol on children in armed conflict and had offered a draft text before the last session of its negotiation, aspects of which were incorporated into the final text. The United States was deeply concerned by the coercive use of children in armed conflict. Around the world, the United States sought to prevent and undo the harms resulting from the involvement of children in armed conflict, such as in the Democratic Republic of Congo. The coercive use of children in armed conflict was not permitted in the United States or in the United States Armed Forces and substantive measures had been taken to rehabilitate victims of this practice abroad.
SIGAL P. MANDELKER, Deputy Assistant Attorney General, in her opening remarks, said that the Department of Justice dedicated itself to enforcing the expansive United States laws related to the sale of children, child prostitution and child pornography with a victim-centered approach and the knowledge and sense of obligation to do everything possible to bring perpetrators to justice and stop them from abusing other children in the future. With this primary goal in mind, the Department had strategically focused and increased its efforts to combat child exploitation. She then drew the attention of the Committee to several initiatives and projects recently launched by the Department, including the Project Safe Childhood, designed to protect children from online exploitation and abuse which was built upon the Internet Crimes against Children Task Forces programme, designed to help state and local law enforcement agencies to acquire knowledge, equipment and personnel resources; the Innocence Lost Initiative, combating domestic prostitution of children; and various regional anti-trafficking task forces and public awareness campaigns.
Gary K. KING, New Mexico Attorney General, in his opening remarks, said that an Agreement of Understanding that his office and the office of the Attorney General for the Mexican State of Chihuahua had concluded to combat human trafficking on both sides of the shared international border addressed the problem of what amounted to human slavery of citizens from both countries. The fight to protect children in New Mexico had also been aided by the recent adoption of a law that defined the practice of human trafficking as a felony crime. The biggest challenge was to convince legislators and the public in general that human trafficking was not the same as the smuggling of contraband, for which many laws already applied. The next challenge was to seek out and prosecute anyone who would sell a child into slavery, sex abuse, prostitution or pornography. The goal was to make it so difficult and costly for the perpetrator that human trafficking would be a crime that ended in our lifetime. He concluded by stating that the forging of this historic local agreement with international ramifications between the United States and Mexico by two state government officials was a testimony to the cooperation between the individual staff members combined with the support of the respective federal governments.
SANDRA L. HODGKINSON Deputy Assistant Secretary of Defense, in her opening remarks concerning the Optional Protocol to the Convention on children in armed conflict, said that since 1973 the United States Military had been an all-volunteer force, with the overwhelming majority of new recruits being over 18 years of age, and more than 90 per cent having at least a high school diploma. Those who were 17 year old could enlist with written permission from their parents or legal guardians. Each military service had policies in place to ensure all feasible measures were taken that no one under the age of 18 engaged directly in hostilities, and the military departments had checks in their personnel systems to ensure adherence to the provisions of the service policies. The United States did detain juveniles who had engaged its forces on the battlefield to remove them from the dangerous effect of combat and to protect its forces and innocent civilians. The United States went to great lengths to attend to the special needs of juveniles while they were in detention, such as in Iraq and Afghanistan. She drew attention to the fact that no more than 8 juveniles were detained at Guantanamo Bay, with two individuals who were juveniles at the time of their detention currently facing criminal charges under the Military Commissions Act of 2006. She stressed that the Optional Protocol on children in armed conflict did not prohibit criminal prosecution of those under the age of 18, nor did it prohibit the detention of juveniles. It was not unprecedented for juveniles to face the possibilities of a war crimes trial. In this regards, she drew the attention of the Committee to provisions of the Geneva Conventions and its protocols and the practice of United Nations international tribunals. She concluded by stating that the United States had contributed substantial resources to international programmes aimed at preventing the recruitment of children and reintegrating former child soldiers into society.
Questions by the Experts on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
YANGHEE LEE, Chairperson of the Committee serving as Rapporteur on the Report of the United States, welcomed the ratification of the Optional Protocol to the Convention on the Right of the Child on the sale of children, child prostitution and child pornography as well as the ratification of a number of other international conventions and the passing of several pieces of legislation that clearly showed the commitment to fight commercial sexual exploitation of children.
She stated that the State party report was a very legalistic report, which did not follow the revised reporting guidelines. The Committee adopted reporting guidelines, expecting that they would be adhered to. The Committee would have benefited more if there had been some critical self analysis, including factors and difficulties affecting the degree of fulfillment of the obligations under the Protocol. She asked if the report also covered all areas over which the United States continued to exercise sovereignty; could the delegation clarify its statement that the provisions of the Protocol were not self-executing under United States domestic laws and how laws in the United States could be consistent with the requirements of article 3(2) of the Protocol; could the State party request extradition of the author of one of the offences covered by the Protocol if the author or the victim was or was not a United States national, the offence was not criminalized in the requested country, and there was no extradition treaty with the requested country; the fact that children were viewed as offenders not as victims of child prostitution; harmonization between federal and state laws; and assistance for child victims for rehabilitation and recovery. She also asked the delegation for the provision of more research and data, information on issues of adoption in light of the Hague Convention and if there were plans to withdraw the reservation made upon the ratification of the Protocol.
In further questions, one Expert said that in the United States, children had to appear before court in cases of abuse. Laws in the United States allowed other measures to be adopted if a child was not able to face the perpetrator. However, the Committee faced the problem that each state in the United States had different procedures. He asked how the Committee could be sure that each state respected the specific status of a child as a victim in procedures, and was this status in accordance with Article 8 of the Protocol. How did the federal government ensure that all states followed the rules of procedure? Another Expert asked how spending power and interstate trade issues were working in relation to the New Mexico agreement? How were the states involved in the ratification of the Optional Protocol? Were visual images in cartoons or cartoon like images captured by the United States definition of child pornography? With regard to the reunification of trafficking victims with their families in their countries of origin, did the United States ensure that the country of origin was a safe place for the child and that the family was a safe place for the child to be?
Several Experts stressed that it was very important for the United States to ratify the Convention. Concerning the fact that the United States had assumed no obligations concerning the Convention because of the ratification of the protocol, what weight was the United States thus giving to its signature? Referring to the broad definition of trafficking in the Report on Trafficking, which lead to problems due to the inclusion of early marriage and child labour as trafficking, how did the United States define “trafficking”? Other questions related to the issue of direct applicability of the Protocol and effects on the rights of the child to be heard before an American court; the lack of new laws to ensure compliance with the provisions of the Protocol; were there measures planned to ensure that the national laws covered crimes committed outside of the United States; were crimes recognized in cases where no extradition was possible; difficulties related to inter-agency coordination and the suggestion to develop a national plan of action; policies and measures, results and challenges regarding prevention in the field of sexual exploitation; research of the root causes of child abuse in the context of prevention; alignment of accreditation issues for organizations in adoption procedures to the Hague Convention and the Protocol; the relationship between the federal government and the states in the protection of children and the exercising of jurisdiction; decriminalization of prostitution for the victims in the states; information on civil remedies; was the crime of sale criminalized in the national legislation?; preventive education for American sex tourists; opportunities for further implementation of the Protocol; consequences for tentative offenders; and different treatment of offences on and outside of American soil.
Answers by the Delegation
In response to the questions of the Committee, the delegation said that with regard to the issue of federalism, it was difficult for the federal Government to exercise any amount of control over the states, especially with regard to criminal laws. There were federal laws overarching everything, for example human trafficking, and the states complied with them. Another way of impact was through federal funding with prohibitions applied to it. However, for example the state of Mexico thought its programme was better than the deferral, so it did not take the federal funding. Regarding the Law of Confrontation of the Accuser, specifically in Mexico, the law did not require someone under 16 to face their perpetrator, yet, exceptions were made also for children over 16 to protect the victim. However the federal constitution guaranteed the perpetrator to see their accuser, which created a problem. The cooperation of Mexico with the federal Government had been very beneficial for children, especially through federal Government money. Addressing the needs of victims, Mexico had a task force including non-governmental organizations and state agencies, and that coordination helped the state to deal with the needs of victims and provide services. Training of law enforcement officers was provided, and a meeting was put together with counterparts from Chihuahua regarding the implementation of the Memorandum of Understanding. The delegation stressed that it was the individual people such as specific staff members in New Mexico and the Mexican state of Chihuahua who brought things forward.
The delegation apologized for the legalistic nature of its report, but stressed that the discussion in this area by nature had to be legalistic, as it involved questions of international and national laws. The delegation stressed that the United States was not closing a door to better implementation of the Protocol. The United States became a party to a treaty after it was ensured that all obligations could be complied with. If the initial assessment after the treaty was adopted showed that not all necessary national laws were in place, the Government would make sure these laws would be enacted. With regard to the obligations of Protocol, and in particular article 8, in consistency with human right treaties, the general term “appropriate measures” was frequently applied. The broad definition was meant to ensure freedom of space for States parties to implement this article. When the Government looked at article 8 before ratification of the Protocol, it decided that the states were doing a good job in implementing the obligations.
Treaties were sent to the Senate for evaluation. The Senate was made up of all 50 states, so that inclusion of states was ensured in the process. In regard to self-execution of treaties, this was only a term to describe if the treaty had direct effect in the country, not an excuse to get out of obligations. The effect of signature of the Convention of the Right of the Child and the statement of no obligations being taken over only meant that the United States would not take up new obligations. On the reservations and understandings of the United States, the delegation pointed out that there was a technical gap identified in the run up to the ratification related to offences on board of ships or aircrafts, and it was considered wise to set that up in a reservation. However, there was no information that the reservation had any serious effects or caused problems. Regarding understandings on the Hague Convention, this was simply saying that the United States was not a party to the Convention, but expected to become a party, and that until they had no obligations under the Convention. As the United States had ratified the Convention, the understanding had no further current effect.
Regarding the question of extradition, when there was no extradition treaty, the delegation noted that article 5(5) applied to a situation where many countries in the world did not extradite their nationals. However, the descending country could not get out of its obligation, and the United States did extradite its nationals. There was no obligation under article 5(5) to establish jurisdiction if it was not covered under Article 4. If a non-United States national committed a crime in another country, he/she could in some cases be brought to trial in the United States when he/she was in the country, they could be removed under the immigration laws.
On the definition of trafficking under the United States trafficking law, the movement across a border was included in the definition but it was in fact the control or gross exploitation which was the main aspect of the crime. Concerning the sale of children, the delegation understood the specific interest of the Committee and was happy to give further information. Generally speaking, when the United States raised concerns with other countries, the terms should be the same. Concerning the sale of organs, the United States had the position that a child may be able to donate an organ if sufficient legal provisions existed.
Regarding the Hague Convention and adoption issues, the delegation said that it had not expected this to be included in the discussion and therefore had not prepared answers on this topic.
The delegation said that the United States did criminalize and prosecute the sale of children independently from trafficking. Many statutes included the attempt of a crime and the same penalties were applied. The federal approach to the question of victims of child prosecution was that these children needed to be treated as victims. The targets were the individuals who enticed these children and abused them. Also, as a general matter, juveniles were not prosecuted and there would never be prosecution of a child. The Innocent Lost Initiative, a partnership of several relevant institutions and departments, tried to export this approach, trying to rescue children and prosecute the people who enticed them. Also, a number of training courses were held across the country. It was hoped that States looked at the federal approach, even though there may be cases in the states where the officers may not know the age of the child, or an arrest was the only way to protect a child from imminent dangers. However, this was the great exception and not the rule.
Regarding the question of coordination, the delegation said that this was the key to child protection, and that the United States was cooperating in all its child exploitation efforts with different actors in different federal districts of the country. Integrated partnership was a pillar of programmes and federal and state law enforcement addressed the problems in a coordinated approach.
Profits from criminal activities were forfeited and laws existed regarding restitution, such as the obtainment of trust funds from perpetrators. Laws for civil remedies were available, as well as criminal remedies. The United States shared the concern about animation in child pornography. Child pornography was growing and by its very nature provided a threat to children everywhere. It was particularly dangerous that animation was becoming so prolific as a sexualization and enticement of children. As such, the United States courts were prosecuting every aspects of child pornography, including animation. With respect to the prevention of sex tourism, the attempted crime approach was used with regards to individuals who would seek to go on a tour and who would seek to obtain a child. Regarding a universal jurisdiction for sex tourism committed outside the United States, the Protect Act of 2003 was trying to hold adults using children outside the country responsible within the United States. There had been 65 convictions since the enactment of that law. As this kind of prosecutions was very expensive and time consuming, the United States tried to increase the prosecution of the attempt of such crimes. The obligations of the Protocol extended through all the territories of the United States.
The T-visa was born out of the victim centered spirit and it was available to petitioners who proved they were victims of trafficking. The petitioner had to be in the United States to apply for it and it was valid for four years. Once the visa was awarded the victim received the same services and support as refugees. There was also a U-visa, which applied to victims of several crimes not just trafficking, and which was available also to victims who were outside the United States.
With regard to demand, the United States Government had tried to address the demand to abuse children sexually. One of the measures was a new model programme which educated customers of commercial sex. The model was replicated in other countries, including “South Korea”. Promotion campaigns aimed at different stakeholders and building cooperation. Discussions with case managers were held on a variety of topics through a variety of activities. Civil society was engaged by an award, the money of which had to be used for grass-root entities. Programming innovative new ways for demand reduction were also identified. The Family and Youth Services Bureau was a partner of the government for a street outreach programme targeting run away, homeless and throw away youth, at risk for sexual exploitation, prostitution and trafficking. Two years ago, an in-reach campaign had been launched without any funding, which led to partnering between different departments and services within the Government. One of the projects out of this campaign was a project on the collection of data on the types of exploitation that homeless youth faced. The United States considered the responsibility to raise awareness of the public regarding the Protocol as very important and appreciated suggestions and support in this.
In the interest of brevity, the delegation referred the Committee to the report which set out the studies done by the Government. Another study had produced papers on the examination of shelters and trauma-informed care.
Preliminary Concluding Remarks on Report under Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
YANGHEE LEE, the Rapporteur for the Report of the United States of the Sale of Children, Child Prostitution and Child Pornography, in preliminary concluding observations, said the dialogue had been very good and helped the understanding of the Committee. She reiterated that the victim centered approach was the most important approach, and that more data concerning the offences outlined in the Protocol was needed. She urged the United States to strengthen its activities, so that children domestically were also treated as victims and not as offenders.
Questions by the Experts on the Optional Protocol on Children in Armed Conflict
KAMEL FILALI, the Committee Expert serving as Rapporteur for the Report of the United States, pointed out that the United States was known for its engagement in human rights. The ratification of the two Protocols and the ILO Convention were good steps for the implementation of the rights of the child. He asked a question regarding the terms used in the report, mainly in paragraphs 7, 8 and 9. Was the notion of participation, which was seen as weakening the protection of the child, still intangible or were improvements possible? Were there any court procedures for children under 18 and were the cases reported and which follow up was given to these cases. He also asked for clarification regarding concerns towards children from ethnic minorities, as well as how the No-Child-Left-Behind Act did take into account the consent of the children and parents. He raised concerns about conduct of recruiters, in particular the handbook given to recruiters and what limits were set for the recruitment process?
Were children fully informed about the duties of entry in military service? Was it possible for a recruited soldier to withdraw from military service, and what were consequences of disobedience?
LUIGI CITARELLA, the Committee Expert Acting as Co-Rapporteur for the Report of the United States, raised a question concerning the diffusion and distribution of the Optional Protocol and the knowledge of people working in the field. Was there a special attention given to the Protocol in military schools and in armed offices of the Department of Defense? Were there practical or manual instructions given to commanders working all over the world? What happened when child soldiers were captured, were there differences of imprisonment or detention in comparison to adults? How long were children kept in detention in cases of armed conflicts which did not qualify as “war”? Referring to conditions of combating groups that were not pertained to a particular country, he asked what precautions were applied to prevent children being enrolled in private organizations acting within an armed conflict in a country?
Other questions raised by Experts related to the provision of education, health and judicial services to child soldiers detained in Iraq; whether the Government of the United States was happy about the legal but sometimes very aggressive recruiting done by the recruiters, also targeting very young children; was it made clear to children that they were not forced to enlist, in particular with regards to late entry registration for 17 year olds; was there a need to maintain all the understandings made by the United States; what training was provided to officials on human rights and rights of the child; how were safe passages and safe schools ensured for non-combatant children in areas of conflict; could the delegation explain the number of 2,400 children which were detained in Iraq, and the high detention rate of 100 new children a month, as well as the lack of representatives, charges and trials for these children and the length of detention, often without trial for over a year; referring to the detention of children in Guantanamo, could the delegation give more information about the third detainee in Guantanamo, a 21 year old boy who was said to be held in the cell for 22 hours a day and had tried to commit suicide three times already; concerning the other two child detainees held in Gunatanamo, who committed acts when they were under 18, for which they were charged under the Military Commissions Act, were all rights recorded to these juveniles, such as the special provisions of the Act concerning juveniles; what process was applied to assess the needs of the individual child when arriving in detention centers; what was the legislation regarding the private sale of arms by manufacturing countries to countries which used child soldiers; and did the delegation see the junior officer reserve training programmes in which high school students from age 11 were enrolled as a use of school education to promote military services?
What stage were the draft child soldiers prevention act and draft child soldiers accountability act of 2007 at? Did the legal system allow for universal jurisdiction and did the United States encourage draft laws for universal jurisdiction? Were the concepts of peace, human rights and children’s rights included in the curriculum of schools, in particular military schools? Why were parents only involved at the very end of the recruitment process? Were activities by military corps at schools conducted within school hours, maybe even school lessons, and were they under the supervision of school heads? Other questions related to clear complaint mechanisms against recruiters; mechanisms to ascertain the age of a child; visits of family and international aid organizations to detained children; military sanctions specifically for children; capital punishment as disciplinary sanctions to a child below 18; plans of the United States to sign the Ottawa Convention; accessibility of judicial services for detainees; financial incentives from the governments to schools to support military recruitment; and the overrepresentation of the most vulnerable population in the military, in particular under female soldiers.
Answers by the Delegation
The delegation said that the meaning of article 1 was that feasible measures and direct part in hostilities were the words of the article, carefully chosen by the negotiators. The terms had clear meanings in international law, such as the Geneva Conventions, and as such well understood. They were disputed in the negotiations, so that the current terms were decided upon by the negotiators, not by the United States. Thus, the United States was simply using these agreed terms. Forward deployment was not part of the understanding of the United States of the meaning, and had been addressed by national laws. “Recruitment” included two different kinds of recruitment, voluntary and compulsory, and it meant the time of entry into the armed forces, not the further meaning of encouraging people to enter. At the time of entry, strict procedures ensured specific requirements to be in place and executed.
Article 6(3) had been used to obstruct the long standing rule in international law that combatants under the age of 18 could be detained and prosecuted for war crimes. Any penalty except for the death penalty was permitted. It was important to note that this Protocol did not disturb the long standing rules of international humanitarian law, including the Geneva Conventions. There were no current plans to ratify either the Rome Statute or the Ottawa Convention. The United States was a signatory to the Additional Protocol to the Geneva Convention, and had no intention to ratify it in the near future.
A special act on arms sales was in place including human rights considerations. Countries of concern were considered, one of the concerns being the use of child soldiers. The sale of arms was not approved in cases of severe human rights violations. The delegation mentioned Sri Lanka as an example of specific human right assessment.
Legislation concerning people committing war crimes which fell under the jurisdiction of the United States was in place guaranteeing that those cases were dealt with in American courts.
The two draft conventions on child soldier prevention and accountability were not yet approved. Concerning contractors to service contracts in an active area of conflict, there were strict rules and regulations for the recruitment, including age limitations to 21. Any war crimes committed by American citizens could be prosecuted under the War Crimes Act. Non-American citizens committing war crimes abroad against non-American victims were not covered by the act. However, there were strict immigration laws in place that ensured that these individuals could not enter or remain in the United States.
When an individual appeared in a detention center and asked for asylum as a former child soldier, he/she was interviewed by an asylum officer, taking into consideration the child’s age. Any harm the child may have encountered was also observed. After the personal interview, the entirety of the case was considered in order to determine if the child should be allowed asylum. If the child had voluntarily engaged in violent actions, the case may be rejected. Cases could then be forwarded to an immigration judge, the decision of which could be appealed by the child soldier. If the application was rejected by all institutions, the child could still ask for protection under the Convention against Torture application. The delegation pointed out that only in one case was a child resent to his country.
Concerning the recruitment service, the number of veterans had declined constantly, which led to an urgent need for recruiters; there were checks and balances in place to keep the recruitment force within its boundaries; recruitment was making sure that the population was aware of and noticed the importance of the military services; advertising campaigns were in place, with the primary market being the youth population between 18 and 24. However, the graduate system meant that people graduated from 17 onwards, which was the time when you made career decisions. As such, the Government allowed recruitment already from this age on, and the age limit was secured by the requirement of the presentation of two official identification documents at the time of recruitment. The recruitment process was not a trivial process, and required the mandatory agreement and signature by the parents. No-Child-Left-Behind Act and Hutchinson policies required detailed identification, as well as provided notification of the opt-out-option to parents. Aggressive recruiting information given to the Committee might not have been fully in line with the actual recruitment practice. The completion of high school was a main priority of the Government. The curriculum of the military high school programme was implemented into school curricula, ensuring students to succeed at school and in life in general. It was a voluntary programme, in which 3,300 schools were already involved in it with 1,700 schools waiting to be included in the programme. The incentive was that the school had to pay for half the programme, and the military paid for the other half, and the school principle had supervision on the execution of the programme. Every child who applied for recruitment was handed over a card setting out his rights in the process. The recruitment process was covered by military justice law, not civil law. The contract had an opt-out-clause that could be exercised before being shipped for training and opportunities for appeals were in place. The recruitment process was not a quick process, but most applicants did at least two visits at the recruitment office to get all the information on a career in the military. The information for parents was given in the relevant immigration language. As Spanish was the second language in the United States, there were Spanish websites setting out all the necessary details of the recruitment process. Monetary incentives were paid at the end of the introductory programme, which minimized the amount of money to be repaid. Education incentives were also given, for which no payback rule existed. Only citizens of the United States or permanent legal aliens who had gone through a fairly extensive immigration process could enter the military services. There was a maze of laws concerning illegal child recruitment, however, no specific law on child recruitment existed.
Concerning the situation of detainees, the delegation pointed out that the difficult determination of the juvenile was done by a serious of screening procedures in all areas of the detention, including interviews and several review boards. The vast majority of detainees were released after the first level screening if the individual was a specific threat to security. Once moved into the juvenile facilities, the juvenile was treated differently from adults according to relevant laws and programmes in place. In Iraq, no juvenile was detained for more than 365 days, with a 6 months review being executed. Parents were involved in the education provided to the juveniles and the programme was proved very successful. The number of 2,400 juveniles was correct. The United States was not denying that it did detain juveniles, however, best efforts were being made to address the needs of these juveniles in detention. The goal was to give them a better education while in detention, and to rehabilitate them as active members back into society. Counseling and mental health assistance, civic education, more family visits, a safe environment separate from the adult area, sports facilities and access by the International Committee of the Red Cross were available for detained juveniles in Iraq. In Afghanistan, there was not such a robust system as in Iraq, but efforts were made to implement the best practice from Iraq, and to keep juveniles in close contact with their families. The recidivism rate of released juveniles had dropped significantly, and the rehabilitation of juveniles was closely monitored. Juveniles were held in detainment centers not necessarily because they had committed a war crime, but because they had been involved in armed combat. In Iraq, Iraq tribunals were looking at the facts from the time of capture in cases of juveniles charged with crimes. For those detained for involvement in armed combat, the goal was to keep those juveniles out of active combat and ensure rehabilitation. The goal was to release them as soon as rehabilitation and the safety of the forces were guaranteed.
Concerning the Military Commissions Act, it was correct that two detainees in Guantanamo were facing trials. Concerning the Understandings, these were only explanations of how the country understood its understanding of specific provisions. So there was no need to revise those.
Preliminary Concluding Remarks
KAMEL FILALI, the Committee Expert serving as Rapporteur for the Report, in preliminary concluding remarks, thanked the delegation for an open and constructive dialogue. The concluding recommendations would reflect the satisfaction of the Committee with the progress that had been made, and give some preoccupations concerning the implementation measures.
LUIGI CITARELLA, the Committee Expert acting as Co-Rapporteur for the Report, also thanked the delegation for the good dialogue and said that specific recommendations would be made at the end of the session.
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