The United States and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC)
July 11, 2012 - National Coalition to Protect Student Privacy – Comments to the Committee on the Rights of the Child
Sixty-second session, 14 January – 1 February 2013, pertaining to: ·
July 3, 2012 - Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict - List of issues concerning additional and updated information related to the consideration of the second periodic report of the United States (CRC/C/OPAC/USA/2) - Read More
April, 2012 - Child Soldiers International Report to the Committee on the Rights of the Child in advance of the United States of America’s second periodic report on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. - Read More
The United State ratified the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC) in 2002. http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.OPAC.USA.2_en.pdf
At that time the US filed a declaration of reservations to the optional protocol, assuming no obligations under the Convention on the Rights of the Child. The United States signed the protocol with the "understanding" that nothing in the Protocol establishes a basis for jurisdiction by any international tribunal, including the International Criminal Court.
It is an extraordinary act of unilateralism.
Right off the bat, the US took exception to Article 1 of the treaty which says in its entirety:
"States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities."
This is how the US responded. You may have to read this a few times to understand what is being said:
"The term “feasible measures” means those measures that are practical or practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations; the phrase “direct part in hostilities”- means immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy; and does not mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions, or other supplies, or forward deployment." It concludes, "Any decision by any military commander, military personnel, or other person responsible for planning, authorizing, or executing military action, including the assignment of military personnel, shall only be judged on the basis of all the relevant circumstances and on the basis of that person's assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken."
This is outrageous. These ‘understandings’ amount to a blanket reservation to Article 1, the substance of which runs contrary to the purpose of OPAC, and should be withdrawn, as the Committee on the Rights of the Child requested back in 2008. This is a slap in the face to the international community. We should be ashamed.
This brings us to Article 3.3 of OPAC of OPAC which says: States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that:
(a) Such recruitment is genuinely voluntary;
(b) Such recruitment is carried out with the informed consent of the person's parents or legal guardians;
(c) Such persons are fully informed of the duties involved in such military service;
The US didn't feel compelled to enter "understandings" regarding Article 3 Section 3.
The List of Issues Prepared by the UN Committee on the Rights of the Child, after reviewing the 2nd Periodic Report of the US regarding the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
The UN Committee on the Rights of the Child has prepared a list of issues including a request for additional information. The US is requested to submit in written form additional and updated information, if possible, before 16 November 2012, not exceeding 15 pages.
Although there are 15 issues addressed by the Committee, the first 7 relate to the work we do. I have included these issues enumerated by the Committee, followed by relatively brief comments.
1. With reference to the information provided in para. 11 and 178 of the State party’s report,
please provide additional information concerning the dissemination of information related to the issues covered by the Protocol to the general public and the training of professionals working with children. Please also inform the Committee of the measures taken to promote knowledge of the Optional Protocol as well as peace education for children in the State party’s schools.
In its 2nd Periodic report, the US stated, "The US government is disseminating the text of the Optional Protocol and related material widely at all levels of government and to the public." School administrators across the country, who are in the front lines, between recruiters and school children, are largely unaware of OPAC.
2. With reference to paragraph 50 of the report, please clarify the terminology “hazardous duty pay” and “imminent danger pay” areas where 17-year old service members can be deployed. Please also provide data disaggregated by sex, ethnic origin, social and economic background on:
(a) the number of under-18s deployed to areas of “hazardous duty pay” or “imminent danger pay” in 2009, 2010 and 2011, including the number who were deployed in hostilities; and
(b) The roles played by under-18s when deployed to “hazardous duty pay” or “imminent danger pay” areas, including details of the specific destinations to which they were deployed over the reporting period.
The US wrote, "The Department of Defense has conducted internal reviews of the more than 1.7 million service members who have deployed in support of on-going operations. While there have been 17-year old service members deployed to “hazardous duty pay” or “imminent danger pay” areas, the reviews of data from 2003 to present did not uncover any service member under the age of 18 who had engaged directly in hostilities as the United States understands that term."
Nevertheless, the definitions of “hazardous duty pay” and “imminent danger pay”, as the international community understands them, suggest that under-18s deployed to these areas would be at grave risk of attack, if not direct participation in hostilities.
3. Please provide data disaggregated by sex, ethnic origin, social and economic background on the number of under-18s recruited into the State party’s armed forces since 2010. Please also clarify whether applications are accepted from 16-year-olds wishing to join the armed forces, and if so, the number of applications received since 2008.
It would be nice to see this data.
4. With regard to paragraph 182 of the report, please explain the basis of the interpretation that the age for voluntary recruitment is above fifteen years according to article 3 (1) of the Protocol.
Actually, the age for voluntary recruitment identified in OPAC is 18.
The United States reported that it has reviewed its policies and has confirmed that adequate safeguards are in place to protect 17-year-olds interested in serving. It says it has no plans to raise the age of voluntary recruitment to 18.
5. With reference to paragraph 46 of the report, please indicate whether annual recruiter irregularity reports were issued by the Department of Defence since 2010. Please also provide information on the follow-up given to the conclusions of the 2010 US Government Accountability Office report which indicated that despite progress, the military’s system of tracking and sharing recruiter irregularities was inadequate and to the 2010 study conducted at the request of the Ministry of Defence by the Rand Corporation according to which: “irregularities are more likely to occur at the very end of the month when recruiters are “on the hook” to meet their quotas.
In response to the GAO report, the Department of Defense issued a memorandum to the services to provide guidance on tracking and reporting recruiter irregularities. The memorandum defined recruiter irregularities as “those willful and unwillful acts of omission and improprieties that are perpetrated by a recruiter or alleged to be perpetrated by a recruiter to facilitate the recruiting process for an applicant.” Rand does not address systemic irregularities like those related to the administration of the ASVAB Career Exploration Program's in the schools or the continued problems associated with the "opt-out" procedures outlined in Section 9528 of the No Child Left Behind Act. They do mention ASVAB "imposters" and other individual cases.
Rand admits: "Currently, it is unclear what information is concealed or falsified. Without understanding whether most cases involve medical conditions, ASVAB testing, dependency status, or other eligibility criteria, it is difficult to identify what aspects of the enlistment process require greater oversight or possible reengineering."
6. Please provide information on the measures taken to restrict the presence of military recruiters on school grounds. Please also provide information on the use of the Armed Services Vocational Aptitude Battery (ASVAB) in schools, the age of children who were given this test, and whether parents have the possibility to prevent their children from taking it.
There are no procedures in place in the US to restrict the presence of military recruiters on school grounds. In fact, military recruiting manuals call for "school ownership."
The Committee only addresses the mandatory nature of ASVAB testing in US high schools. The Committee does not ask for information pertaining to the privacy implications of the administration of the test in schools. Although the DoD publishes a list of Release Options schools may choose regarding the administration of the ASVAB, including the option to withhold results from recruiters, few administrators across the country are aware of this option. Furthermore, the test is marketed as a "career exploration program" in the schools while its primary purpose is to "produce leads for recruiters" according to recruiting manuals.
Information released by the US Military Entrance Processing Command (USMEPCOM) in 2011 identifies more than a thousand high schools (out of 14,000 schools that administer the test) require students to take it. Whether the test is mandatory or strongly encouraged by school officials, student information, including social security numbers, in depth, personal demographic information, and 3 hours of test results are released to recruiters without parental consent and often without parental knowledge. This is a particularly egregious violation of civil rights. ASVAB results are the only student information leaving American schools without providing for parental consent. Some school administrators are under the impression that the test is required by federal law.
7. Please provide disaggregated data (by age, sex, ethnic origin, social and economic background) on the number of children currently enrolled into the Junior Reserve Officer Training Corps (JROTC) and into the four United States Cadets Programmes and indicate whether they may be trained to use weapons. Please also clarify the relations between the Army Cadets Corps and the Department of Defence. Please indicate whether children can withdraw from the JROTC and the Army Cadets Corps at any time and without penalty and the proportion of them who ultimately join the armed forces and if a complaint mechanism is available to them.
This will be the first time we've ever seen the DoD release specifics regarding the economic background of children it recruits. We’re looking forward to it.
Additional comments (in Bold, following the numbered US Statements) regarding several points in the United States'
second periodic report under the Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict, 25 January 2010 UN Doc. CRC/C/OPAC/USA/2,
8. As indicated in paragraph 22 of the initial report, the United States filed a declaration pursuant to article 3, paragraph 2 of the Optional Protocol, stating that:
(a) The minimum age at which the United States permits voluntary recruitment into the Armed Forces of the United States is 17 years of age;
(b) The United States has established safeguards to ensure that such recruitment is not forced or coerced, including a requirement in section 505(a) of title 10, United States Code, that no person under 18 years of age may be originally enlisted in the Armed Force of the United States without the written consent of the person’s parent or guardian, if the parent or guardian is entitled to the person’s custody and control;
Children are coerced into military service in the United States when the state's schools provide a platform for deceptive federal programs designed to recruit youth to the detriment of democratic ideals. Recruiting programs in the nation's high schools lack transparency and violate the privacy rights of children and families. Coercion is the product of the cumulative effect of the programs briefly outlined below:
The US military maintains the "Joint Advertising Market Research Studies" (JAMRS) database, an Orwellian collection containing intimate details on 30 million youth between the ages of 16 and 25, providing local recruiters with personal information to use in a psychological campaign to lure youth within their designated regions. Most children and their families are unaware of the existence of this database, how it collects detailed information on them, or ways to effectively remove their information from it. Voluntary or Coercive?
Section 9528 of the No Child Left Behind Act provides military recruiters the names, addresses, and phone numbers of all American high school students, provided that parents and students are given the opportunity to "opt out" of the lists being forwarded to recruiters. The US’s second periodic report highlights the provisions in place to assist schools in informing parents and pupils of the right to opt out. However, it does not address the fact that, despite these measures, many schools are still failing to do so, and no enforcement measures exist to require schools to adhere to the law. Voluntary or Coercive?
Commercial entities like Student Marketing Group and American Student List provide the Pentagon with information on children, often without appropriate notice. Voluntary or Coercive?
Recruiters, trained in the psychological element of the trade, electronically troll social media sites to compile personal dossiers on unsuspecting minors. Before first contact, recruiters know Johnny reads wrestling magazines, weighs 150, can bench press 230, drives a ten year-old Chevy truck, loves Pink Floyd's "Dark Side of the Moon," and enjoys fly fishing. Voluntary or Coercive?
The data described above paints a virtual portrait of a potential recruit, but leaves out the future soldier's cognitive abilities. The Armed Services Vocational Aptitude Battery (ASVAB) Career Exploration Program provides this crucial element, something the Pentagon can't purchase or find on line. The ASVAB is a deceptive program in the schools that violates student privacy rights and state laws. Voluntary or Coercive?
The Department of Defense has several deceptive recruiting websites that collect information. Typically, the military hides its true recruiting intentions. Voluntary or Coercive?
March 2 Success is an Army site that provides free standardized test-taking instruction for high school students. High school counselors routinely encourage college-bound students to use the service that catalogues student use for recruiting purposes. Personal information finds its way to recruiters. Voluntary or Coercive?
Google and Yahoo forums also provide fertile recruiting grounds. Recruiters "lurk" in these virtual settings, often posing as potential recruits with questions designed to lure responses. "What kind of job could I get with a really low ASVAB score?" is a favorite. Voluntary or Coercive?
America's Army 3, rated "Teen Blood Violence," www.americasarmy.com is the official U.S. Army video game that competes with violent commercial offerings. The game has become one of the Army's most effective recruiting tools. Voluntary or Coercive?
Recruiters collect a mountain of information during frequent, popular displays of military hardware. They methodically gather leads during air shows and parades and they seldom miss career fairs, particularly those at the local high school. The military also owns several dozen "adventure vans," 18-wheel tractor trailers that criss-cross the country and visit high schools. High school kids get out of Algebra class to squeeze off rounds from simulated M-16 rifles. All the while, recruiters are collecting data on index cards and PC's that are fed to the JAMRS database and neighborhood recruiters. Voluntary or Coercive?
Finally, the Junior Reserve Officer Training Corps (JROTC) is the military's most valuable recruiting program in the schools. Children as young as thirteen are groomed to be officers. Their personal information is meticulously gathered and preserved. There are JROTC units at more than 3,200 high schools across the country, where students perform military drills and participate in marksmanship programs. Voluntary or Coercive?
The notion of a voluntary American military force is laughable. To find soldiers, the U.S. has developed a massive and deceptive military recruitment surveillance and data collection complex.
40. Every effort is made to ensure that applicants are aware of all aspects involved in a military career. A number of documents providing all necessary information to the recruit are made available. The most important is the enlistment contract itself, which highlights the terms of military service, available at: www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0004.pdf
How can the DoD refer to this instrument as a contract? DoD Form 4 Sec 9b demonstrates how ludicrous this assertion really is, "Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed Forces REGARDLESS of the provisions of this enlistment/reenlistment document." DoD Form 4 is more akin to indentured servitude than an enforceable two-way contract.
183. As discussed in the periodic report in paragraphs 14 and 72–73 and annex I, United States recruitment efforts result in a military force that is representative of the United States as a whole. Economically disadvantaged individuals are actually underrepresented in our military, and race and ethnicity data show our recruits are on par with youth of comparable age in the general population.
Some of the data to back this contention is supplied by the Heritage Foundation and there are serious questions regarding their methodology, particularly pertaining to the "granularity" of their data. Much of the information pertaining to the economic level of accessions is based on zip codes, geographic areas that are too large to draw definitive conclusions.
184. As indicated in paragraph 41, all seventeen-year-olds have the ability to withdraw from enlistment at any time prior to beginning basic training. The United States military is an all-volunteer force. It would be inconsistent with that concept to order or force unwilling individuals to fulfil their contractual agreement to enter active duty, including those in the Delayed Entry Program (DEP).4
Large numbers of recruits are coerced. Recruiters harass underage youth who attempt to withdraw from the Delayed Entry Program. This is well documented by the GI Rights Hotline.
189. LEAs are required to notify parents annually that the school routinely discloses this information to military recruiters upon request, unless a parent requests not to have this information disclosed without his or her written consent. The notification must advise the parent how to opt out of the disclosure of this information and the method and timeline within which to do so.
Many schools are not adequately notifying parents pursuant to the opt-out section of the law. Additionally, there is no enforcement mechanism to compel schools to do so.
194. In its observations, the Committee referred specifically to the Junior Reserve Officers’ Training Corps (JROTC), and suggested that it was offered to children as young as 11. As the Committee recognizes, the existence of the JROTC program does not constitute recruitment into United States national armed forces and does not violate any obligations under the Optional Protocol.
The military claims that it is not a recruiting program, but DoD statistics and testimony in Congress indicate that 40-50 percent of its students join the military, with most going directly into enlisted ranks. One reason for the high enlistment rate is the special enlistment benefits offered to graduates of JROTC programs (e.g., a slightly higher initial enlistee pay grade, advantages in applying for college ROTC, and the possibility of being nominated to apply at a military academy).