Background Briefing

II. Culpability of Children

Juvenile justice standards recognize that children and adolescents are fundamentally different from adults. Because their cognitive abilities, judgment and impulse control are still being developed, children have less developed capacities than adults to control their impulses, to use reason to guide their behavior, and to think through the consequences of their behavior. The US Supreme Court has repeatedly recognized that adolescents differ intellectually and emotionally from adults, and therefore deserve to be judged and treated differently. For example, in Eddings v Oklahoma, the Court noted

[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective and judgment expected of adults.8

In 2005, the Supreme Court ruled that the execution of child offenders was unconstitutional, finding that juveniles are “categorically less culpable” than adult criminals, and noting that juveniles lack the “well-formed” identities of adults, are susceptible to “immature and irresponsible behavior,” and vulnerable to “negative influences and outside pressures.”9

The conclusions of the Court are supported by both psychological research and neuroscience.   Psychological research has shown that children are less able than adults to perceive and understand the long-term consequences of their acts, to think autonomously, and to control their emotions and impulses.10  Neuroscience has documented physiological differences—most notably in the frontal lobe, the part of the brain which controls aggression, long-range planning, and mental flexibility—to account for these findings. 

Since the government alleges that Khadr was taken to al Qaeda guest houses at age 10, sent to military training at age 15, and sent into battle shortly thereafter, any proceedings against him must take into account his lack of independence, relative culpability and vulnerability to outside influence as a child.       

III. US obligations regarding the treatment of former child soldiers

Omar Khadr is alleged to have participated as an “unlawful enemy combatant” in the conflict in Afghanistan, as a member of, or affiliated with al Qaeda.  Such a designation effectively establishes US recognition of him as being a child soldier.  

International law binds the United States to recognize the special situation of children who have been recruited or used in armed conflict. These standards recognize the frequent abuse of children as soldiers in armed conflicts around the world. Whether “voluntarily” or forcibly recruited, the use of children in armed conflict is now widely recognized as detrimental to the development and well-being of children, and a serious abuse of their rights. In addition, the recruitment and use of children under the age of 15 in armed conflict is recognized as a war crime.11

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which the US is a party,12 explicitly prohibits the recruitment or use of children under 18 in armed conflict by non-state armed groups and requires state parties to criminalize such conduct.13 

The United States is also party to the International Labor Convention No. 182 concerning the worst forms of child labor,14 which prohibits the forced or compulsory recruitment of children for use in armed conflict. The recommendation accompanying the convention encourages states to make recruitment of children under 18 a criminal offense.15

Both ILO Convention No. 182 and the Optional Protocol oblige the US to assist in the rehabilitation of former child soldiers. The Optional Protocol obliges states to

take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.16

The rehabilitation of former child soldiers generally entails reunification with the child’s family, counseling, educational and vocational training, and other necessary assistance to aid their reintegration into society. The “Paris Principles,” international guidelines regarding children associated with armed forces or groups state that “at all stages,” the objective of programming for children who have been involved with armed forces should be to enable children “to play an active role as a civilian member of society, integrated into the community and, where possible, reconciled with her/his family.”17

The Principles further state that regardless of whether children who have participated in armed forces or armed groups escape, are abandoned, or are captured by opposing forces, “all appropriate measures to promote physical and psychological recovery and social reintegration must be taken.”18

In late 2003, the United States released three children (ages 13-15) detained at Guantanamo to UNICEF to enable them to receive rehabilitation and reintegration assistance in Afghanistan. However, the United States government has not made any such rehabilitation assistance available to Omar Khadr, nor acknowledged his possible status as a child used in armed conflict.

8 Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982).

9 Roper v. Simmons, 125 S. Ct. 1183, 1195 (2005).

10 Kim Taylor-Thompson, “States of Mind/States of Development,” Stanford Law and Policy Review, vol. 14 (2003), p. 155, fn 107-108 (reviewing research on effects of stress on juvenile decision-making);

11 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 8(2)(b)(xxxvi) and 8(2)(e)(vii). See also Summary of Decision on Preliminary Motion on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Sam Hinga Norman, Appeals Chamber of the Special Court for Sierra Leone, May 31, 2004, Case Number SCSL-2003-14-AR72 (E), which found that individuals responsible for recruiting children under the age of 15 bear criminal responsibility for their acts.

12 The United States signed the Optional Protocol on July 5, 2000, well before Khadr was apprehended. By the time Khadr was taken into custody on July 27, 2002, more than half of the world’s states—109—had signed the optional protocol and 36 states had ratified it, indicating broad international consensus around the norm. The United States subsequently ratified the Optional Protocol on December 23, 2002. Afghanistan acceded to the Optional Protocol on September 24, 2003. As of May 15, 2007, 122 states had signed the protocol, and 115 had ratified it

13 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (Optional Protocol), Article 4.  (stating that “armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen.” And obliging state parties to“take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.”)

14ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, adopted June 17, 1999, 38 ILM 1207 (ratified by the United States on December 2, 1999).

15 Worst Forms of Child Labor Recommendation 190, ILO General Conference, 87th Session, adopted June 17, 1999, art. 12.

16 Optional Protocol, Article 6(3).

17 The Paris Principles: Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, February 2007, 7.0.

18 Ibid. 7.6.4.