Johannesburg — The Child Soldier Prevention Act (CSPA) was a prime example of US bipartisan human rights legislation: sponsored by Democratic and Republican senators and signed into law in 2008 by Republican President George Bush, the law entered into force under the Democratic presidency of Barack Obama. But even armed with this political consensus, the US consistently shies away from using the full spectrum of the law, citing national security interests.
Richard Clarke, director of London-based NGO Child Soldiers International, told IRIN the law, which calls for the withholding of military assistance and arms exports from governments that continue to use child soldiers, can provide "powerful leverage".
"However, for three consecutive years since the CSPA entered into force, the president issued waivers based on US national interests. With these repeated waivers, the potential impact of the CSPA is seriously reduced, particularly if the waivers are perceived to be the rule rather than the exception," he said.
The September 2012 presidential memorandum said, "It is in the national interest of the United States to waive the application of the [CSPA's] prohibition ... with respect to Libya, South Sudan and Yemen; and further determine that it is in the national interest of the United States to waive in part the application of the prohibition... with respect to the Democratic Republic of the Congo [DRC], to allow for continued provision of International Military Education and Training funds and nonlethal Excess Defence Articles, and the issuance of licenses for direct commercial sales of US-origin defence articles."
In 2010, Chad, DRC, and Yemen were also excluded from enforcement of the act. In 2011, these countries again escaped any action, as did South Sudan.
Adotei Akwei, Amnesty International's US government relations managing director, said in an October 2012 briefing, Ending the Use of Child Soldiers: One Step Forward, "The administration's argument that South Sudan is not technically subject to the CSPA because they were not a country until after the law went into effect might meet a legal standard of credibility, but it does not do much for the children of South Sudan nor does seem [to] portray US leadership on this critical issue in a very positive light."
The government is aware of these countries' continued use of child soldiers. The US State Department said in its 2012 Trafficking in Persons (TIP) report that the DRC's national army (FARDC) continues to forcibly recruit children and "some army commanders actively blocked - with complete impunity - efforts to monitor and remove children from their units, an obstruction that has persisted for nearly three years."
According to the act, governments that recruit or use child soldiers in armed forces or government-supported militias are only eligible for assistance to address the issue of child soldiers through the professionalization of their military.
Undermining the act
Jesse Eaves, World Vision's US-based senior policy advisor for child protection, told IRIN the US had improved its engagement with countries using child soldiers but was "not holding countries accountable to the Child Soldiers Prevention Act."
But "when the United States government gives a waiver to a country identified in the State Department's TIP report as a country using children in their national military, this weakens the authority of the law by not holding the country accountable for removing children from their armed forces," Eaves said.
Jo Becker, US-based Human Rights Watch (HRW) children's rights advocacy director, told IRIN the waivers showed the country was prioritizing other issues, "including military alliances and counter-terrorism efforts."
But "on the positive side... the [Obama] administration has certainly stepped up its diplomatic engagement with countries using child soldiers by repeatedly raising the issue at senior levels," she said. Such diplomatic engagement pushed Chad and South Sudan to sign action plans with the UN to end their use of child soldiers, she said.
Global use of child soldiers
The CSPA defines child soldiers not only as combatants but also as those "serving in any capacity, including in a support role such as a cook, porter, messenger, medic, guard or sex slave".
"Since 2000, the participation of child soldiers has been reported in most armed conflicts and in almost every region of the world. Although there are no exact figures, and numbers continually change, tens of thousands of children under the age of 18 continue to serve in government forces or armed opposition groups. Some of those involved in armed conflict are under 10 years old," Child Soldiers International says.
"Child soldiers have been used in armed conflicts by 20 states since 2010, and... are at risk of military use in many more," a recent report by the NGO said.
The benefits of using child soldiers are myriad: Apart from the often cited "virtue" of being easy to indoctrinate, they are able to operate and maintain light modern weapons and need less food than adults.
"Another advantage has to do with children's relative lack of visibility when reconnoitring an enemy position. In Uganda, for example, teenage soldiers [in Yoweri Museveni's National Resistance Army] played a significant role in the capture of Kampala [in 1986]. Dressed in tattered clothes, they walked freely around the enemy positions in the capital to gather information," said a 2011 report by the International Review of the Red Cross.
Absence of domestic legislation
A gamut of international human rights and humanitarian laws and international protocols bans the use of child soldiers; the recruitment of children under 15 years old as combatants constitutes a war crime. But globally, domestic legislation specifically aimed at discouraging the use of child soldiers is thin.
To Child Soldiers International's knowledge, only Switzerland and Belgium, along with the US, have "have enacted laws to condition arms exports specifically on a recipient country's record on recruitment and use of children," said Clarke.
The Swiss 1998 Ordinance on War Material cites as a condition for export "the situation in the country of destination, in particular with regard to respect for human rights and the non-use of child soldiers." But the Child Soldiers International report said it was "not known whether weapons transfers have been denied on the basis of these provisions and, if so, to which countries".
Belgium also restricts weapons export to countries known to use child soldiers, but this law also has its pitfalls. "By excluding armed groups that are distinct from the state, it would not cover state-allied armed groups," the Child Soldiers International report said. "In the absence of publicly available information on how many licenses have been refused and to where, the practical effect of the Belgian law cannot be ascertained."
Clarke said other states - Bulgaria, Croatia, France, Germany, Ireland, Spain and the UK - claim inclusive legislation prevents arms exports to countries using child soldiers. "Other governments, including Chile, Israel, Italy, Republic of Korea, Moldova, Montenegro, Serbia, Slovenia, Sweden and Tanzania, claim that national laws or policies prohibit the transfer of arms to governments responsible for human rights violations or more broadly to situations of armed conflict."
The influence of partial waivers
Although the US has pulled its punches with regard to the CSPA, even the law's partial imposition has proved successful, leaving human rights activists speculating about the effects its full use might have.
But even partial waivers could be used to greater effect, HRW says. The partial waiver for the DRC limited US support for military training, with a reported US$2.7 million withheld last year.
"We've been particularly disappointed that the US has not used partial waivers more extensively," HRW's Becker said. "The US withheld foreign military financing to [DR] Congo for two years in a row, and announced in September  that it would not provide military training for a second battalion until the [DR] Congo signed a child soldiers action plan with the UN. Just days after this year's announcement, the Congo signed the action plan, after dragging its feet for seven years."
The US, at a cost of about $15 million, has trained a battalion of the FARDC; the training leans heavily on instilling a culture of human rights among the unit. The battalion was previously stationed in Dungu in operations against the Lord's Resistance Army (LRA) and has since been redeployed to North Kivu's capital Goma. It is expected the about 750-strong unit will be used in operations against the armed group M23. Both armed groups extensively rely on child soldiers.
"To withhold a portion of military aid until governments end their use of child soldiers will not jeopardize the US's alliances with these countries, but it will send a strong message that ending the use of child soldiers is a priority for the US," Becker said.