Hearing of the House Judiciary Committee - S. 2135, The Child Soldiers Accountability Act of 2007
Interview
REP. SCOTT: The subcommittee will come to order and I welcome you to the hearing before the Subcommittee on Crime, Terrorism and Homeland Security on S.2135, the Child Soldiers Accountability Act of 2007. Amidst 18 countries around the -- in at least 18 countries around the world children have -- children are direct participants in war.
Many of these child soldiers, some as young as 8 years old abducted or recruited by force and often are compelled to follow orders on under harsh duress. Contrary to popular belief in many conflicts girls make up more than 30 percent of child soldiers and are often raped.
Once recruited these children, boys and girls participate in all forms of combat even welding AK47s and N16s as portrayed in the media. The prevalence and nature of the child soldier problem is not going away any time soon, it continuous to plague the international community.
In Uganda a rebel group has abducted at least 20,000 children and has forced them to work as laborers, soldiers and sex slaves. We hear about ongoing persecution and atrocities in Burma or what has escaped media attention is the use of child soldiers there which the government has recruited up to 70,000 children more than any other country in the world.
There is a clear legal prohibition on recruiting and using child soldiers. Over 110 countries including the United States have ratified the optional protocol on the convention on rights of the child, which prohibits recruitment and use of child soldiers under the age of 18.
But individual recruiters continue to operate with impunity violating their country's policies and pre-obligations. So we must ask ourselves why this is so, is it a failure of the law, or of will, or both. This hearing will probe ways in which we may as a country contribute to prevention and punishment of recruiting and using child soldiers.
Now recruiting and using child soldiers does not now violate the United States criminal code. To this end Senator Durbin and Senator Coburn introduced the Child soldiers' Accountability Act legislation did not design to amend title 18 of the U.S. code to create a criminal provision aimed at those who recruit or conscript children under the age of 15 into armed conflict.
The bill will establish criminal penalties up to 20 years in prison and up to life imprisonment if death results from the crime. Finally, the bill would extend U.S. jurisdiction to perpetrate as of the crime, who are present in the United States regardless of their nationality and regardless of where the crime takes place, so that those who commit these crimes cannot use this country as a safe haven from prosecution.
This type of jurisdictions exists for similar crimes such as laws against torture and genocide, which allow for ex-tutorial jurisdiction, for crimes committed outside of the United States. We overwhelmingly passed Genocide Accountability Act last year to end the immunity gap in the genocide law. We should explore doing the same for those who maliciously recruit and use innocent children in warfare.
With that said, it's my pleasure to recognize the ranking member of this subcommittee, the gentleman from Texas, Mr. Gohmert.
BREAK IN TRANSCRIPT
REP. SCOTT: Mr. Malinowski, you mentioned Charles Taylor, what did he do, relevant to this issue and how was he prosecuted, and what would this bill do?
MR. MALINOWSKI: That is actually probably better directed to the former chief prosecutor, who prosecuted him.
REP. SCOTT: Mr. Crane.
MR. CRANE: Well, thank you. Charles Taylor was the linchpin in a 10-year long geopolitical joint criminal enterprise between himself Charles -- Blaise Compaore, Burkina Faso, and Mohammad Kadafi of Libya. Charles Taylor told Foday Sanko, who was about to invade Sierra Leone from Liberia to take over the diamond fields of Eastern Sierra Leone, recruit everyone to include women and children and that he did for 10 years.
And for that I signed an indictment in March of 2003 indicting Charles Taylor, the sitting president of the Liberia, on 11 counts of war crimes and crimes against humanity, one of which was the unlawful recruitment of children in to the -- to an armed force under the age of 15, the first time in history that the ever being done.
REP. SCOTT: What is that status of the prosecution?
MR. CRANE: Well, the Special Court for Sierra Leone is about 90 percent done. Most of the individuals, who were charged have been found guilty and have been convicted to include all of them the unlawful recruitment of children under the age of 15 into an armed force.
Charles Taylor, of course the international community had to come to a political decision as to when to handover a head of state to an international tribunal, they did so in March of 2006. He now sits before a child -- Trial Chamber Number 2 of the Special Court for Sierra Leone in The Hague on that 11 count indictment that I signed on the 3rd of March of 2003 sir.
REP. SCOTT: And this is the international criminal court?
MR. CRANE: Yes it is. It's a hybrid international war crimes tribunal. It's the first one tried in the history. The ad hoc tribunal concept was too slow, too expensive. The Security Council, with the leadership of this country I might add, came up with a new hybrid international tribunal to be a little bit more efficient a little bit more effective and try those who bear the greatest responsibility for war crimes and crimes against humanity as opposed to just everyone.
So I narrowed it down to about 13 indictees and they are completing their work. They should be done about eight years after we started.
REP. SCOTT: Are United States citizens subject to this court?
MR. CRANE: They are not Mr. Chairman.
REP. SCOTT: Is there any situation that would justify recruiting children under the age of 15?
MR. CRANE: Not that I can know of, at all, I have found no military reason, moral reason, or practical reason.
REP. SCOTT: Now why do we use 15 rather than 18?
MR. CRANE: That's a good question. That's a debate within the international community, and Tom might be able to address that. My personal opinion is certainly anybody under the age of 15 should not be in an armed force.
Various countries in the world, they use 17 year olds in their armed forces with consent from parents, but the international standard is under 18. However, the debate continues related to whether a child could commit a war crime, certainly under the age 15. I would certainly submit to you, and this is the -- this act, correctly at this point cites those who unlawfully recruit under the age 15.
MR. MALINOWSKI: I agree, and there is an absolute international consensus, for under 15, there is an emerging norm that under 18 is prohibited, which the United States has joined. We still recruit and that's consistent with the treaty 17 year-olds, but its U.S. policy not to involve them in hostilities and conflict.
REP. SCOTT: Thank you.
Gentleman from Texas.
BREAK IN TRANSCRIPT
REP. SCOTT: Thank you. I've just got a couple of technical questions that --- I guess to Professor Crane. If someone's prosecuted in the United States for a crime that was committed somewhere else, are there due process and evidentiary challenges that we need to address?
Well, certainly, the --- when one commits a crime overseas there has to be some type of extra-territoriality to the legislation. Obviously, there has to be a jurisdictional hook by which we can bring that person into the United States and prosecute them for violation of any kind of law. I mean that's just a basic jurisdictional issue. And so the issue is, if the person is here and it can be shown that they unlawfully recruited a child under the age of 15 into an armed force, for example in Sierra Leone, and they're living in the United States, certainly one could argue that we might have the ability to prosecute that individual.
REP. SCOTT: Well, I'm not talking about the jurisdiction, I'm talking about just the nuts and bolts of a prosecution, where do you get your evidence, how does he defend himself?
MR. CRANE: Oh, okay. I ---
REP. SCOTT: Due process and evidentiary challenges.
MR. CRANE: Well, absolutely. Well, certainly, evidence is always the challenge, evidence is always an issue, because a lot of the evidence is overseas. However, it --- if you have for example an individual who is in the United States on a green card, for example, and who was found to have been a combatant in Sierra Leone, it would be largely up to individuals. It's witness testimony, there's nothing in writing; it's the individual saying I saw this person kill this recruit, so-and-so ---
REP. CONYERS: Have there been such prosecutions? I mean, where do you get your witnesses, where does the defendant have the opportunity to defend themselves?
MR. CRANE: Oh, certainly, of course at the international level we did prosecute, we did present evidence, in fact I even provided you a picture of my leadoff witness in the armed force --- the case against the leadership of the armed force's --- the Revolutionary United Front. He has AFRCRUF carved into his chest. You bring in the victims, you bring in the individuals who were victims of being recruited, so it's victim testimony.
Of course, certainly they can be cross-examined, I mean, obviously the rules of procedure and evidence that were created by the statute of the court certainly a lot are complete, due common law and due process. This --- in fact it was a very familiar feeling to me when I was wearing the robes of the chief prosecutor in a tribunal as you would in practicing before the judge here. I mean, it's a common law.
But the bottom line is, if there's good lawyering and getting your victims --- I was impressed, we had 395 witnesses lined up to testify in all sorts of crimes, one of which was crimes against children. Three hundred and ninety four showed up and they --- as was alluded to they proudly come forward and want to tell their testimony. They want to give --- they do this for the families that aren't there and for the people who have been murdered in front of their eyes.
REP. SCOTT: Mr. Malinowski, do you see any due process or evidentiary challenges that we need to address?
MR. MALINOWSKI: Well, you know, further due process standards are the same, defendants' rights are the same, and the evidentiary standards are the same. But if the evidence is overseas it's harder, which is why, you know, if it happens in the United States the Justice Department is likely to choose cases that --- where the evidence is fairly clear, where witnesses are available, where they feel like I have a good chance of obtaining a conviction. And, you know, we mentioned the case of Chuckie Taylor, Charles Taylor's son, and that's a good example of the case where the Justice Department feels that it can overcome those inherent challenges and set a precedent which would be very valuable. And I mentioned that would be the same for any case that they take under the child soldier statute as well.
REP. SCOTT: The statute of limitations available is 10 years. Is that too long or too short or just right?
MR. CRANE: My feeling is it's, I think it's about right. I think it's about right, 10 years is sufficient, I think that kind of evidence will come out earlier than later, but again, it remains to be seen. I'm speculating frankly, Mr. Chairman, but 10 years seems to be right.
REP. SCOTT: And the penalty is 20 years life if death occurs. How does that compare to other crimes?
MR. CRANE: The ---
REP. SCOTT: In context is that an appropriate sentence?
MR. CRANE: Yes, it is, Mr. Chairman. The standard international level is if you're charged to put the unlawful recruitment of child soldiers under the age of 15 it can carry up to as much as what would be equivalent to a life sentence, there is no death penalty at the international level. So on balance this bill is right down the middle as far as statute limitations, penalties, and even the standard of the 15 --- "under the age of 15" in my opinion.
REP. SCOTT: Thank you.
Mr. Gohmert.
BREAK IN TRANSCRIPT
REP. SCOTT: Let me ask one final question. This has --- the prohibition is, against someone doing the recruiting and whatnot, if we pass the bill would it apply to anyone who has done this in the last 10 years or anyone who violates the provisions of a bill prospectively? That came up in some of our other bills and it was felt that since it is already illegal that we would be intending retroactive application. Is --- how does that fit in that little constitutional framework?
MR. CRANE: Well, certainly, ex post facto laws and those types of things are problematic and I take your point. The unlawful recruitment of a child or children under the age of 15 into an armed force is appellate court rule crystallized under --- it's customary international law as of 1996. So it is an international crime. And certainly as of that date, in other words all who have done it are on notice that it is unlawful to recruit. So certainly, my argument would be if we were doing this in a court of law is that we are just enforcing what is already an international crime and using this as the mechanism by which we would do that.
REP. SCOTT: Do you have a different analysis, Mr. Malinowski?
MR. MALINOWSKI: No, I would agree.
REP. SCOTT: I'd like to thank our witnesses for their testimony today, particularly Ms. Akallo, for your very moving testimony and responses to questions. Members may have additional written questions for witnesses which would be forwarded to you, and we ask that if you are sent questions that you answer them as promptly as you can so they may be made part of the record. And without objection, the hearing record would remain open for one week for submission of additional materials.
Without objection, this subcommittee stands adjourned.
Source