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107th Congress                                               Exec. Rpt.
                                 SENATE
 2d Session                                                    107-4

======================================================================



 
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 TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE 
  INVOLVEMENT OF CHILDREN IN ARMED CONFLICT





                 June 12, 2002.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 106-37]

    The Committee on Foreign Relations, to which was referred 
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 to the Convention on the 
Rights of the Child on the Involvement of Children in Armed 
Conflict, having considered the same, reports favorably thereon 
with 1 reservation, 6 understandings, 1 declaration, and 1 
condition regarding the Optional Protocol to the Convention on 
the Rights of the Child on the Sale of Children, Child 
Prostitution and Child Pornography; and 5 understandings and 3 
conditions regarding the Optional Protocol to the Convention on 
the Rights of the Child on the Involvement of Children in Armed 
Conflict, as set forth in the resolutions of advice and 
consent, and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolutions of advice and consent to 
ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Entry Into Force/Amendment/Termination...........................5
 IV. Committee Action.................................................6
  V. Committee Recommendations and Comments...........................6
 VI. Discussion of the Resolutions of Advice and Consent to 
     Ratification.....................................................8
VII. Text of Resolutions of Advice and Consent to Ratification.......13
VIII.Annex--Hearing on Protocols on Child Soldiers and Sale of Children 
     (Treaty Doc. 106-37), March 7, 2002.............................19

                               I. Purpose

    The two treaties are designed to protect children around 
the world. The first requires States Parties to criminalize the 
sale of children for various forms of exploitation, and the use 
of children in prostitution or pornography. The second contains 
new standards, in the form of higher minimum age requirements, 
on recruitment of children into the armed forces and use of 
children in armed conflict.

                             II. Background


                               A. General

    On May 25, 2000, the United Nations General Assembly 
approved two Optional Protocols to the Convention on the Rights 
of the Child: (1) the Optional Protocol on the Sale of 
Children, Child Prostitution and Child Pornography and (2) the 
Optional Protocol on Involvement of Children in Armed Conflict 
(hereafter referred to as ``Protocol on the Sale of Children'' 
and ``Protocol on Child Soldiers,'' respectively).
    On July 5, 2000, the United States signed the Protocols. 
The United States is not a party to the Convention on the 
Rights of the Child, but has signed it; the Protocols are open 
to signature by any country which has signed the Convention. 
After President Clinton signed the Protocols, Congress approved 
a non-binding provision in the annual defense authorization 
bill welcoming the Protocol on Child Soldiers, and urging that 
the Senate move forward ``as expeditiously as possible'' in 
considering it.\1\
---------------------------------------------------------------------------
    \1\ Sec. 1236 of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001 (P.L. 106-398).
---------------------------------------------------------------------------
    President Clinton submitted the Protocols to the Senate on 
July 25, 2000. The Protocols are set forth in one Senate treaty 
document (Treaty Doc. 106-37), but are two separate legal 
instruments.
    The Bush administration indicated its support for the 
Protocols by letter to the Committee dated August 31, 2000, 
stating that the two treaties ``urgently need Senate approval'' 
(letter from Paul Kelly, Assistant Secretary of State for 
Legislative Affairs). That statement was reaffirmed by the 
administration by letter to the Committee dated February 7, 
2002 (the letter sets forth the administration's treaty 
priority list for the 107th Congress; the list places the 
Protocols in the first category--those treaties ``for which 
there is an urgent need for Senate approval'').

 B. Key obligations of the Protocols and current U.S. law and practice

1. Protocol on the Sale of Children

    The basic obligations of the Protocol on the Sale of 
Children, set forth in Article 3, are as follows: States 
Parties to the Protocol are required to ensure that the 
following acts are ``fully covered under its criminal or penal 
law, whether these offenses are committed domestically or 
transnationally or on an individual or organized basis:''

          (1) in the context of the sale of children, which is 
        defined as any act or transaction whereby a child is 
        offered, delivered, or accepted by one to another for 
        remuneration or any other consideration, for the 
        purpose of sexual exploitation, the transfer of a 
        child's organs for profit, or the engagement of a child 
        in forced labor. The Protocol also requires States 
        Parties to ban the act of improperly inducing consent, 
        as an intermediary, for the adoption of a child in 
        violation of applicable international legal instruments 
        on adoption;
          (2) the offering, obtaining, procuring or providing a 
        child for child prostitution, which is defined as using 
        a child in sexual activities for remuneration or any 
        other form of consideration; and
          (3) producing, distributing, disseminating, 
        importing, exporting, offering, selling or possessing 
        child pornography, which is defined as any 
        representation, by whatever means, of a child engaged 
        in real or simulated explicit sexual activities or any 
        representation of the sexual parts of a child for 
        primarily sexual purposes.

Other key provisions of the Protocol require States Parties to:

   establish jurisdiction in their laws for these 
        offenses (Article 4);
   recognize offenses covered by the treaty as 
        extraditable offenses (subject to national practice on 
        the existence of an extradition treaty as a 
        prerequisite to extradition), and, in the case of 
        States Parties which do not extradite on the basis of 
        nationality, to take measures to submit the case to its 
        competent authorities for the purpose of prosecution; 
        (Article 5);
   cooperate with other parties in investigating or 
        prosecuting cases under the Protocol (Articles 6 and 
        10);
   provide, subject to provisions of their national 
        law, for seizure and forfeiture of goods used to 
        facilitate the offense and proceeds derived from such 
        offenses (Article 7).

    U.S. domestic law, at both the Federal and state level, 
already covers the subjects addressed by the Protocol (see 
pages 10-30 of the Treaty Document for an extensive analysis of 
applicable Federal and state law). Congress enacted two 
statutes in 2000--after submission of the Protocol to the 
Senate--which further strengthen federal law in these areas. 
These laws are the Victims of Trafficking and Violence 
Protection Act of 2000 (P.L. 106-386) and the Intercountry 
Adoption Act of 2000 (P.L. 106-279). The former provides 
several new statutory provisions addressing trafficking of 
children for sexual activity, child prostitution, and forced 
labor. The latter implements a multilateral treaty on adoption, 
and includes, among other things, criminal and civil penalties 
for improper inducement of relinquishment of parental rights in 
an international adoption covered by that treaty.
    Accordingly, with one exception, no new legislation will be 
required to comply with the Protocol. The exception relates to 
a provision on court jurisdiction. Article 4(1) obligates 
States Parties to take such measures as may be necessary to 
establish jurisdiction over the criminal offenses set forth in 
Article 3 when the offenses are committed in its territory or 
``on board a ship or aircraft registered in that state.'' U.S. 
court jurisdiction over such offenses is not always stated in 
terms of ``registration'' of a ship or aircraft (it is focused, 
rather, on ownership by U.S. persons or corporations). U.S. 
Federal law will need to be amended in order for the United 
States to comply with this requirement. In the meantime, the 
Committee recommends a reservation in the instrument of 
ratification stating that the treaty obligation on this aspect 
of the Protocol will not apply to the United States until such 
time as U.S. law is amended accordingly, at which time it is 
expected that the President will withdraw the reservation.

2. Protocol on Child Soldiers

    The Protocol on Child Soldiers contains four key 
obligations. States Parties are obliged to:

          (1) ``take all feasible measures'' to ensure that 
        members of the national armed forces who are under age 
        18 do not take a ``direct part'' in hostilities 
        (Article 1);
          (2) ensure that people under age 18 are not 
        ``compulsorily recruited'' into the armed forces 
        (Article 2);
          (3) raise the minimum age for voluntary recruitment 
        into their national armed forces from the age of 15 
        (Article 3); and
          (4) maintain safeguards to ensure that, if a State 
        permits voluntary recruitment for persons under age 18, 
        such recruitment is genuinely voluntary, it is done 
        with the informed consent of the person's parents or 
        legal guardians, such persons are fully informed of the 
        duties involved in military service, and such persons 
        provide reliable proof of age prior to their acceptance 
        into military service.

    No changes in U.S. law will be required to fulfill the 
obligations of the Protocol, although the Department of Defense 
will need to issue appropriate internal directives to ensure 
implementation of the obligation contained in Article 1.
    The United States is already in compliance, by law and 
practice, with the obligations of Articles 2 through 4.
    Article 2 requires States Parties to ensure that people 
under age 18 are not forcibly recruited into the armed forces. 
The United States does not have a policy of compulsory military 
service for persons of any age (the Selective Service System is 
a registration system). According to testimony received by the 
Committee from the Executive Branch, the Department of Defense 
does not envision the need to reinstate the draft. It should 
also be noted that the United States has already accepted a 
similar international legal obligation. Under International 
Labor Organization Convention 182 on the Worst Forms of Child 
Labor (approved by the Senate in November 1999), the United 
States is obligated to not compulsorily recruit people under 18 
for ``use in armed conflict.''
    Article 3 requires States Parties to raise the minimum age 
for voluntary recruitment from that set out in Article 38(3) of 
the Convention on the Rights of Child (which the United States 
understands to mean 15 years of age). Article 4 requires 
nations which enlist persons under age 18 to provide certain 
safeguards. By law, persons less than 17 years of age may not 
enlist in the U.S. armed forces, and those who are 17 may not 
enlist unless they have the written consent of a parent or 
guardian (10 U.S.C. Sec. 505). Persons under 18 also may not, 
without parental consent, enter the Delayed Entry Program 
(under the Delayed Entry Program, individuals sign enlistment 
contracts committing to enlist in the military within one 
year). (10 U.S.C. Sec. 513) The Defense Department requires 
that every person recruited into the military receive a 
comprehensive briefing and to sign an enlistment contract 
which, together, specify the duties involved in military 
service. Further, all recruits must provide reliable proof of 
age before their entry into the military service.
    Finally, it is worth noting that the Protocol will have no 
effect on U.S. military academies, or Reserve Officer Training 
Corps (ROTC) programs. Article 3(5) provides that the 
requirement to raise the minimum age of recruitment in Article 
3(1) ``does not apply to schools operated by or under the 
control of the armed forces . . .'' In any event, individuals 
must be 17 to enter U.S. military academies (e.g., 10 U.S.C. 
Sec. 4346 (17-year-old minimum age for entrance to U.S. 
Military Academy); 10 U.S.C. Sec. 6958 (same requirement for 
U.S. Naval Academy); 10 U.S.C. Sec. 9346 (same requirement for 
U.S. Air Force Academy)).

              III. Entry into Force/Amendment/Termination


                          A. Entry into Force

    Each Protocol enters into force three months after the 
deposit of the tenth instrument of ratification or accession. 
The Protocol on the Sale of Children entered into force on 
January 18, 2002. The Protocol on Child Soldiers entered into 
force on February 12, 2002. If the United States ratifies the 
Protocols, they would enter into force for the United States 
one month after the date of deposit of the instrument of 
ratification (Article 14(2) of the Protocol on the Sale of 
Children; Article 10(2) on the Protocol on Child Soldiers).

                             B. Amendments

    Each Protocol has identical provision for amendments. Any 
State Party may propose an amendment by presenting it to the 
depository, the UN Secretary-General, who then communicates the 
proposal to the States Parties, asking whether they support a 
conference of States Parties to consider the proposals. If, 
within four months of the communication by the Secretary-
General, at least one-third of the States Parties support such 
a conference, he must convene it. Any amendment adopted by a 
majority of States Parties present and voting at the conference 
shall be submitted to the UN General Assembly for its approval. 
An amendment enters into force when it has been approved by the 
General Assembly and accepted by a two-thirds majority of 
States Parties. An amendment is binding only on States Parties 
accepting it. (Article 16 of Protocol on the Sale of Children; 
Article 12 of Protocol on Child Soldiers).

                      C. Denunciation/termination

    Under the terms of each Protocol, a State Party may 
denounce the protocol at any time by written notification to 
the UN Secretary-General. The denunciation takes effect one 
year after the date of receipt of the notification. (Article 
15(1) of the Protocol on the Sale of Children; Article 11(1) of 
the Protocol on Child Soldiers). In the case of the Protocol on 
Child Soldiers, however, if at the end of that one-year period 
the denouncing State Party is engaged in armed conflict, the 
denunciation ``shall not take effect before the end of the 
armed conflict.'' Denunciation also does not release a State 
party from obligations with regard to acts that occur prior to 
the effective date of a denunciation.

                          IV. Committee Action

    The Committee held a public hearing on the Protocols on 
March 7, 2002, receiving testimony from representatives of the 
Departments of State, Defense, and Justice. Testimony was also 
received (focusing primarily on the Protocol on Child Soldiers) 
from a panel of private witnesses consisting of two retired 
admirals and a representative of a human rights organization. 
All witnesses testified in favor of the Protocols. (The 
transcript of the hearing is printed as an annex to this 
report.)
    On May 23, 2002, the Committee considered the Protocols and 
ordered them favorably reported by voice vote, with a 
recommendation that the Senate give its advice and consent to 
the ratification of the Protocols subject to 1 reservation, 6 
understandings, 1 declaration, and 1 condition regarding the 
Protocol on the Sale of Children; and 5 understandings and 3 
conditions regarding the Protocol on Children in Armed 
Conflict, as set forth in the resolutions of advice and 
consent.

               V. Committee Recommendations and Comments

    The Committee recommends that the Senate advise and consent 
to the ratification of the two Protocols.
    The Protocol on the Sale of Children will provide important 
new standards--and provide a framework for international 
cooperation--to combat the heinous crimes of the sale of 
children, child pornography, and child prostitution. The scope 
of the problem of trafficking, particularly of women and 
children--for use in slave labor or in the sex industry--defies 
comprehension. A State Department report indicates that, 
according to reliable estimates, ``at least 700,000 persons, 
especially women and children, are trafficked each year across 
international borders,'' and that tens of thousands of women 
and children are trafficked into the United States annually.\2\ 
Like-minded states must take all reasonable steps to prevent 
and punish such odious offenses. The Protocol sets standards 
which the United States will expect other nations to embrace 
and enforce.
---------------------------------------------------------------------------
    \2\ Department of State, Trafficking in Persons Report (July 2001).
---------------------------------------------------------------------------
    The United States is already in a position to fulfill 
nearly all of the obligations of the Protocol, with one 
exception. It will have to make one minor modification to 
Federal law related to jurisdiction.
    The Protocol on Child Soldiers also addresses a problem of 
unimaginable scope. Around the world, perhaps hundreds of 
thousands of young children--some under the age of 10--engage 
in armed conflict every year. The Protocol will not end this 
outrageous practice, but it will establish new standards and 
help shine a spotlight on those governments, and non-state 
actors, which continue to employ children in armed conflict.
    For the United States, the Protocol will impose a 
manageable burden.
    The Protocol will have no effect on recruiting into the 
U.S. armed forces. It requires nations to ensure that people 
under age 18 are not forcibly recruited into the armed forces. 
As noted above, the United States does not forcibly recruit 
people of any age. The Protocol also requires that States 
Parties raise the minimum age for voluntary recruitment to some 
age higher than 15. The United States does not permit 
enlistment of individuals under the age of 17.
    In considering the implications of the Protocol for the 
United States, the key issue is whether the Protocol will 
affect military readiness and U.S. operational requirements. 
Article 1 of the Protocol requires States Parties to 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.'' The Department of Defense has assured 
the Committee that, based on its review of the Protocol, it 
``will not harm the military's ability to accomplish its 
national security mission.'' The Committee agrees with this 
judgment, for three reasons.
    First, 17-year-olds are not a major part of U.S. military 
recruiting. Of the nearly 175,000 new enlistees in the U.S. 
military in Fiscal Year 2001, about 12,000 were 17 when they 
enlisted, or about 7 percent. The percentage of 17-year-old 
enlistees has varied in the last two decades--ranging from a 
low of 3.6 percent in Fiscal 1993 to a high of 8.2 percent in 
Fiscal 1982--but since Fiscal 1982 it has never exceeded 7 
percent. Thus, as the Department of Defense testified, 17-year-
olds are an important part of military recruiting, but they do 
not dominate the recruiting pool.
    Second, meeting the Article 1 obligation will be manageable 
for a simple reason: most 17-year-old recruits turn 18 while 
still in training--either during basic training or in 
subsequent training in a recruit's military specialty. In 
Fiscal 2001, for example, there were only 2,263 individuals who 
were 17 when they reached their operational bases. Of these 
individuals, very few are deployed overseas, where they face a 
higher probability of encountering a combat situation. In 
February 2002, just 45 of these service personnel under the age 
of 18 were assigned to units outside the continental United 
States. Of these, only 7 servicemen and women--all sailors--
were participating in Operation Enduring Freedom. These data 
indicate that the number of servicemen and women who are likely 
to be assigned to units in theaters of potential combat is 
minuscule.
    Third, by its terms, Article 1 does not impose a complete 
prohibition on participation in combat by those under age 18. 
Rather, it requires states to take ``all feasible measures'' to 
ensure that such individuals do not take a ``direct part'' in 
hostilities. This flexible standard, and the interpretation set 
forth in recommended understanding (2), will permit 17-year-
olds to engage in a range of activities, including combat 
support or combat service support. The interpretation of 
Article 1 is addressed in further detail below, in Section VI.
    In sum, the Protocol will not require significant changes 
in U.S. practice. The Committee notes, in particular, that the 
Protocol accommodates the long-standing United States policy of 
allowing 17-year-olds to voluntarily enlist in the armed 
forces. The Committee supports this policy and this resolution 
of the issue.

VI. Discussion of the Resolutions of Advice and Consent to Ratification


                  A. Protocol on the Sale of Children

Reservation regarding Article 4(1)

    Article 4(1) of the Protocol obligates States Parties to 
take ``such measures as may be necessary'' to establish 
jurisdiction over the offenses referred to in Article 3(1), 
when the offenses set forth in Article 3(1) are committed in 
its territory or on board a ship or aircraft registered in that 
State. Because U.S. jurisdiction is not usually couched in 
terms of ``registration'' in the United States--it is generally 
focused, rather, on ownership by U.S. persons or corporations--
the reach of U.S. jurisdiction is inadequate to comply with the 
Protocol upon ratification. Department of Justice 
representatives have indicated to the Committee that they are 
working on a legislative proposal to amend U.S. law 
accordingly.
    In the meantime, the Committee recommends a reservation 
which would have the effect of opting out of this obligation 
temporarily. Once U.S. law is changed, it is expected that the 
President would promptly withdraw the reservation. In this 
connection, once U.S. law changes, the President need not seek 
a further decision by the Senate in connection with the 
withdrawal of the reservation.

Understanding (1)--Convention on the Rights of the Child

    The United States is not a party to the Convention on the 
Rights of the Child, though it is a signatory. Although styled 
as a Protocol to the Convention, it is a stand-alone legal 
instrument and therefore the United States does not assume any 
obligations under the Convention on the Rights of the Child by 
becoming a party to the Protocol. The first proposed 
understanding would state that principle.

Understanding (2)--Definition of sale of children

    Article 2(a) of the Protocol broadly defines the sale of a 
child as ``any act or transaction whereby a child is 
transferred by any person or group of persons to another for 
remuneration or any other consideration.'' This broad 
definition could be construed to include lawful acts, such as 
the placement of a child in the temporary custody of a friend 
or family member with the promise of payment for the child's 
living or academic expenses. To ensure that such an improper 
construction is not given, the Executive Branch recommends, and 
the Committee agrees, that the Senate adopt an understanding 
which makes clear that Article 2(a) is intended to cover those 
transactions in which a person who does not have a lawful right 
to custody of the child thereby obtains de facto control over 
the child.

Understanding (3)--Definition of child pornography

    Article 2(c) of the Protocol defines child pornography as 
``any representation, by whatever means, of a child engaged in 
real or simulated explicit sexual activities or any 
representation of the sexual parts of a child for primarily 
sexual purposes.'' To ensure that the term as applied by the 
United States conforms with U.S. law, the Executive Branch 
recommends, and the Committee agrees, that the Senate adopt an 
understanding that the definition means the ``visual 
representation of a child, engaged in real or simulated sexual 
activities, or of the genitalia of a child where the dominant 
characteristic is depiction for a sexual purpose.''

Understanding (4)--Definition of transfer of organs

    Article 3(1)(a)(i)b requires States Parties to ensure that, 
in the context of sale of children, the offering, delivering, 
or accepting of a child for the ``purpose of transfer of organs 
of the child for profit'' is fully covered under its criminal 
law. The understanding makes clear that ``transfer of organs 
for profit'' in the context of the sale of a child is not 
intended to reach situations in which a child donates an organ 
pursuant to lawful consent. The understanding also makes clear 
that the term ``profit,'' as used in the provision, does not 
extend to the lawful payment of reasonable expenses associated 
with an organ transfer, for expenses such as travel, housing, 
lost wages, and medical costs.

Understanding (5)--Improper inducement in relinquishment of parental 
        rights

    Article 3(1)(a)(ii) requires States Parties to ensure that, 
in the context of sale of children, the act of improperly 
inducing consent, as an intermediary, for adoption in violation 
of applicable international legal instruments on adoption is 
fully covered under its criminal law. The use of the term 
``applicable international legal instruments'' is understood to 
mean the Convention on Protection of Children and Co-operation 
in Respect of Intercountry Adoption (the ``Hague Convention''). 
Because the United States is not currently a party to the Hague 
Convention, the understanding states that the United States is 
not obligated to criminalize the conduct prohibited in Article 
3(1)(a)(ii) or take action as required under Article 3(5). The 
understanding also elaborates on the meaning of the term 
``improperly inducing consent.''
    It should be noted that the Senate gave advice and consent 
to the ratification of the Hague Convention during the 106th 
Congress. The United States has not, however, deposited its 
instrument of ratification, because it is not yet in a position 
to fulfill the obligations of the Convention; that is because 
the regulatory structure for implementation of the Convention 
has not been finalized, though the necessary implementing 
legislation has been enacted (P.L. 106-279).

Understanding (6)--Implementation of the Protocol in the Federal system 
        of the United States

    This understanding makes clear that the United States will 
carry out its obligations under the Protocol consistent with 
its federal system of government, through legislation already 
enacted by the federal government and the states of the United 
States. The range of laws required by the Protocol are 
addressed at both the federal and state level. Some provisions 
required by the Protocol are, in the U.S. system, largely the 
responsibility of the states. The understanding therefore 
underscores that the Protocol will be implemented at the 
federal level to the extent the federal government exercises 
jurisdiction over matters covered therein, and that it will 
otherwise be implemented by state and local governments. The 
understanding is identical to one approved by the Senate in 
1994 in consideration of the International Convention on the 
Elimination of All Forms of Racial Discrimination.

Declaration

    This declaration, which would not be included in the 
instrument of ratification, provides that the provisions of the 
Protocol are not self-executing, with one exception. The 
exception is Article 5, which permits parties to consider the 
offences covered by Article 3(1) as extraditable offenses in 
any existing extradition treaty between States Parties. That 
said, the United States will continue to undertake any 
extraditions pursuant to the provisions of Chapter 209 of Title 
18, United States Code. The declaration also makes plain that 
the United States considers that current law, including the 
laws of the states, adequately fulfills the obligations of the 
Protocol, and therefore it does not intend to enact new 
legislation to fulfill its obligations. There is one exception 
to this statement as well: as noted in the reservation 
described above, a minor change to federal law will be required 
to satisfy the obligations of Article 4(1).

Condition on interpretation

    This condition sets forth important principles of treaty 
interpretation, which the Senate has reaffirmed on numerous 
occasions in the last decade. These principles apply whether or 
not the Senate chooses to say so during consideration of a 
treaty.

                     B. Protocol on Child Soldiers

Understanding (1)--Convention on the Rights of the Child

    The United States is not a party to the Convention on the 
Rights of the Child, though it is a signatory. Although styled 
as a Protocol to the Convention, the Protocol is a stand-alone 
legal instrument and therefore the United States does not 
assume any obligations under the Convention on the Rights of 
the Child by becoming a party to the Protocol. This 
understanding would state that principle.

Understanding (2)--Implementation of Article 1 obligation

    Article 1 of the Protocol requires States Parties to take 
``all feasible measures'' to ensure that members of the 
national armed forces who are under age 18 to not take a 
``direct part'' in hostilities. The understanding recommended 
by the Executive Branch (and modified by the Committee only for 
sake of clarity, but not in substance) would set forth the 
United States understanding with regard to the meaning of the 
terms ``feasible measures'' and ``direct part in hostilities.''
    First, the phrase ``feasible measures,'' according to the 
understanding, means ``those measures that are practical or 
practically possible, taking into account all the circumstances 
ruling at the time, including humanitarian and military 
considerations.''
    This reading of the flexibility of Article 1 is derived 
from a common sense reading of the text. Quite obviously, a 
requirement to take ``all feasible measures'' does not require 
a rule of rigid application, but rather requires an assessment 
of what is practical based on the totality of circumstances. At 
the same time, it should not be read by the United States, or 
other States Parties, as a loophole to permit widespread 
employment of 17-year-olds in direct hostilities. A good faith 
implementation of the treaty obligation requires parties to 
take reasonable steps to keep those under 18 from direct 
participation in combat, and that such participation should 
occur only in exceptional circumstances.
    The flexible reading of the term is also rooted in 
antecedents in existing multilateral treaties related to the 
law of armed conflict. For example, under Protocol II to the 
Conventional Weapons Convention, the term ``feasible'' is a 
defined term, meaning that which is ``practicable or 
practically possible taking into account all circumstances 
ruling at the time, including humanitarian and military 
considerations'' \3\--precisely the formulation in the proposed 
understanding.
---------------------------------------------------------------------------
    \3\ Article 3(10) of the Protocol on Prohibitions or Restrictions 
on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 
1996 Annexed to the Convention on Prohibitions or Restrictions on the 
Use of Certain Conventional Weapons Which May be Deemed to be 
Excessively Injurious or to Have Indiscriminate Effects. The United 
States ratified the Convention on Conventional Weapons and Protocol II 
in 1995; the amended Protocol II was ratified in 1999.
---------------------------------------------------------------------------
    As to the scope of ``direct part in hostilities,'' the 
proposed understanding states that it 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.'' Further, 
the proposed understanding states what the United States 
believes the phrase does not include: namely, it does not 
include ``indirect participation in hostilities, such as 
gathering and transmitting military information, transporting 
weapons, munitions and other supplies, or forward deployment.'' 
This list of activities considered to be ``indirect 
participation in hostilities'' should not be considered 
exhaustive.
    This interpretation of ``direct part in hostilities'' is, 
in the view of the Committee, a natural reading of the text. 
The prohibition on ``direct'' participation obviously means 
that ``indirect participation'' in hostilities is permitted. 
This phrase also has roots in a prior international legal 
instrument. As noted above, Article 77 of Additional Protocol I 
to the Geneva Conventions requires that parties take all 
feasible measures to ensure that children under age 15 do not 
take a ``direct part in hostilities.'' The ICRC commentary on 
this article indicates that the term ``implies a direct causal 
relationship between the activity engaged in and the harm done 
to the enemy at the time and the place where the activity takes 
place.'' \4\
---------------------------------------------------------------------------
    \4\ ICRC Commentary on Additional Protocol I, para. 1679; para. 
3187 & n.7 (commentary on Article 77, which cross-references commentary 
on the term in Article 43).
---------------------------------------------------------------------------
    Finally, the proposed understanding sets forth the 
principle that military commanders and other personnel in 
positions of authority with regard to a military action shall 
only be judged with respect to the U.S. obligation under 
Article 1, 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 they made the 
decisions resulting in the action under review.

Understanding (3)--Minimum age for voluntary recruitment

    Under Article 3(1), States Parties are required to raise 
the minimum age for voluntary recruitment of persons into the 
armed forces from ``that set out in Article 38, paragraph 3 of 
the Convention on the Rights of the Child, taking account of 
the principles contained in that article and recognizing that 
under the Convention persons under 18 are entitled to special 
protection.'' Article 38(3) of the Convention on the Rights of 
the Child requires parties to ``refrain from recruiting'' any 
person not yet 15 years of age. In the event that the 
provisions of Article 38 is subsequently modified, an 
understanding is recommended to make clear that the United 
States understands that the obligation of the Protocol is to 
raise the minimum age for voluntary recruitment into the armed 
forces from the current international standard of 15.

Understanding (4)--Armed groups

    This states that the United States understands the term 
``armed groups'' in Article 4 of the Protocol to mean non-
governmental armed groups, such as rebel groups, dissident 
armed forces, and other insurgent groups. This statement also 
makes clear that the term ``armed groups'' does not refer to 
any governmental entities.

Understanding (5)--No basis for jurisdiction by any international 
        tribunal

    This provision states the United States understanding that 
nothing in the Protocol establishes a basis for jurisdiction by 
any international tribunal, including the International 
Criminal Court.

Condition 1--Declaration on minimum age for recruitment

    Under Article 3(2) of the Protocol, States Parties are 
required to deposit a binding declaration upon ratification 
setting forth the minimum age at which it will permit voluntary 
recruitment and describing the safeguards it has adopted to 
ensure that such recruitment is not forced. The condition 
requires the President to deposit a declaration stating U.S. 
law and policy on enlistment of 17-year-olds.

Condition 2--Interpretation of the Protocol

    This condition sets forth important principles of treaty 
interpretation, which the Senate has reaffirmed on numerous 
occasions in the last decade. These principles apply whether or 
not the Senate chooses to say so during consideration of a 
treaty.

Condition 3--Reports on implementation

    This condition requires the Secretary of Defense to report 
to the Committees on Foreign Relations and Armed Services 
within 90 days of the deposit of the instrument of ratification 
on the steps the military departments have taken to comply with 
the obligation of Article 1. The condition also requires the 
Secretary of State to submit to the same Committees the report 
required under Article 8 of the Protocol. Finally, the 
condition requires the Secretary of Defense to report to the 
Committees whenever there is a significant change in the 
policies of the military departments in implementing the 
obligation set forth in Article 1.
    The Committee believes that the Department of Defense 
should have flexibility in implementing the obligation of 
Article 1. At the same time, this Committee and the Committee 
on Armed Services have an oversight responsibility to monitor 
compliance with this core obligation. To date, the Department 
has indicated only that it will focus on ``when and where 17-
year-olds are deployed,'' a formulation that provides little 
substantive information. The Department obviously has a range 
of options, including banning deployment of 17-year-olds to 
areas where combat is likely (as the Air Force did before 
signature of the Protocol \5\). That is a matter left to the 
sound discretion of the Department of Defense. With this 
reporting requirement, the Committee intends to ensure that 
Congress is informed of the measures taken to comply with the 
Protocol, and informed of any significant changes to such 
policies.
---------------------------------------------------------------------------
    \5\ Air Force Instruction 36-2110 (issued February 2000) states 
that Air Force members must be ``at least 18 years of age to be 
assigned to a hostile fire or imminent danger area.''
---------------------------------------------------------------------------

     VII. Text of Resolutions of Advice and Consent to Ratification


                  a. PROTOCOL ON THE SALE OF CHILDREN

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL PROTOCOL 
                    TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE 
                    SALE OF CHILDREN, CHILD PROSTITUTION, AND CHILD 
                    PORNOGRAPHY, SUBJECT TO A RESERVATION, 
                    UNDERSTANDINGS, A DECLARATION, AND A CONDITION.

    The Senate advises and consents to the ratification of the
Optional Protocol Relating to the Convention on the Rights of 
the Child on the Sale of Children, Child Prostitution, and 
Child Pornography, opened for signature at New York on May 25, 
2000 (Treaty Doc. 106-37; in this resolution referred to as the 
``Protocol''), subject to the reservation in section 2, the 
understandings in section 3, the declaration in section 4, and 
the condition in section 5.

SEC. 2. RESERVATION.

    The advice and consent of the Senate under section 1 is 
subject to the reservation, which shall be included in the 
United States instrument of ratification of the Protocol, that, 
to the extent that the domestic law of the United States does 
not provide for jurisdiction over an offense described in 
Article 3(1) of the Protocol if the offense is committed on 
board a ship or aircraft registered in the United States, the 
obligation with respect to jurisdiction over that offense shall 
not apply to the United States until such time as the United 
States may notify the Secretary-General of the United Nations 
that United States domestic law is in full conformity with the 
requirements of Article 4(1) of the Protocol.

SEC. 3. UNDERSTANDINGS.

    The advice and consent of the Senate under section 1 is 
subject to the following understandings, which shall be 
included in the United States instrument of ratification of the 
Protocol:
          (1) No assumption of obligations under convention on 
        the rights of the child.--The United States understands 
        that the United States assumes no obligations under the 
        Convention on the Rights of the Child by becoming a 
        party to the Protocol.
          (2) The term ``sale of children''.--The United States 
        understands that the term ``sale of children'', as 
        defined in Article 2(a) of the Protocol, is intended to 
        cover any transaction in which remuneration or other 
        consideration is given and received under circumstances 
        in which a person who does not have a lawful right to 
        custody of the child thereby obtains de facto control 
        over the child.
          (3) The term ``child pornography''.--The United 
        States understands the term ``child pornography'', as 
        defined in Article 2(c) of the Protocol, to mean the 
        visual representation of a child engaged in real or 
        simulated sexual activities or of the genitalia of a 
        child where the dominant characteristic is depiction 
        for a sexual purpose.
          (4) The term ``transfer of organs for profit''.--The 
        United States understands that--
                  (A) the term ``transfer of organs for 
                profit'', as used in Article 3(1)(a)(i) of the 
                Protocol, does not cover any situation in which 
                a child donates an organ pursuant to lawful 
                consent; and
                  (B) the term ``profit'', as used in Article 
                3(1)(a)(i) of the Protocol, does not include 
                the lawful payment of a reasonable amount 
                associated with the transfer of organs, 
                including any payment for the expense of 
                travel, housing, lost wages, or medical costs.
          (5) The terms ``applicable international legal 
        instruments'' and ``improperly inducing consent''.--
                  (A) Understanding of ``applicable 
                international legal instruments''.--The United 
                States understands that the term ``applicable 
                international legal instruments'' in Articles 
                3(1)(a)(ii) and 3(5) of the Protocol refers to 
                the Convention on Protection of Children and 
                Co-operation in Respect of Intercountry 
                Adoption done at The Hague on May 29, 1993 (in 
                this paragraph referred to as ``The Hague 
                Convention'').
                  (B) No obligation to take certain action.--
                The United States is not a party to The Hague 
                Convention, but expects to become a party. 
                Accordingly, until such time as the United 
                States becomes a party to The Hague Convention, 
                it understands that it is not obligated to 
                criminalize conduct proscribed by Article 
                3(1)(a)(ii) of the Protocol or to take all 
                appropriate legal and administrative measures 
                required by Article 3(5) of the Protocol.
                  (C) Understanding of ``improperly inducing 
                consent''.--The United States understands that 
                the term ``improperly inducing consent'' in 
                Article 3(1)(a)(ii) of the Protocol means 
                knowingly and willfully inducing consent by 
                offering or giving compensation for the 
                relinquishment of parental rights.
          (6) Implementation of the protocol in the federal 
        system of the united states.--The United States 
        understands that the Protocol shall be implemented by 
        the Federal Government to the extent that it exercises 
        jurisdiction over the matters covered therein, and 
        otherwise by the State and local governments. To the 
        extent that State and local governments exercise 
        jurisdiction over such matters, the Federal Government 
        shall, as necessary, take appropriate measures to 
        ensure the fulfillment of the Protocol.

SEC. 4. DECLARATION.

    The advice and consent of the Senate under section 1 is 
subject to the declaration that--
          (1)(A) the provisions of the Protocol (other than 
        Article 5) are non-self-executing; and
          (B) the United States will implement Article 5 of the 
        Protocol pursuant to chapter 209 of title 18, United 
        States Code; and
          (2) except as described in the reservation in section 
        2--
                  (A) current United States law, including the 
                laws of the States of the United States, 
                fulfills the obligations of the Protocol for 
                the United States; and
                  (B) accordingly, the United States does not 
                intend to enact new legislation to fulfill its 
                obligations under the Protocol.

SEC. 5. CONDITION.

    The advice and consent of the Senate under section 1 is 
subject to the condition that the Senate reaffirms condition 
(8) of the resolution of ratification of the Document Agreed 
Among the States Parties to the Treaty on Conventional Armed 
Forces in Europe (CFE) of November 19, 1990 (adopted at Vienna 
on May 31, 1996), approved by the Senate on May 14, 1997 
(relating to condition (1) of the resolution of ratification of 
the INF Treaty, approved by the Senate on May 27, 1988).

                     (b) PROTOCOL ON CHILD SOLDIERS

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE OPTIONAL PROTOCOL 
                    TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE 
                    INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, SUBJECT 
                    TO UNDERSTANDINGS AND CONDITIONS.

    The Senate advises and consents to the ratification of the 
Optional Protocol to the Convention on the Rights of the Child 
on the Involvement of Children In Armed Conflict, opened for 
signature at New York on May 25, 2000 (Treaty Doc. 106-37; in 
this resolution referred to as the ``Protocol''), subject to 
the understandings in section 2 and the conditions in section 
3.

SEC. 2. UNDERSTANDINGS.

    The advice and consent of the Senate under section 1 is 
subject to the following understandings, which shall be 
included in the United States instrument of ratification of the 
Protocol:
          (1) No assumption of obligations under the convention 
        on the rights of the child.--The United States 
        understands that the United States assumes no 
        obligations under the Convention on the Rights of the 
        Child by becoming a party to the Protocol.
          (2) Implementation of obligation not to permit 
        children to take direct part in hostilities.--The 
        United States understands that, with respect to Article 
        1 of the Protocol--
                  (A) 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;
                  (B) the phrase ``direct part in 
                hostilities''--
                          (i) 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
                          (ii) does not mean indirect 
                        participation in hostilities, such as 
                        gathering and transmitting military 
                        information, transporting weapons, 
                        munitions, or other supplies, or 
                        forward deployment; and
                  (C) 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.
          (3) Minimum age for voluntary recruitment.--The 
        United States understands that Article 3 of the 
        Protocol obligates States Parties to the Protocol to 
        raise the minimum age for voluntary recruitment into 
        their national armed forces from the current 
        international standard of 15 years of age.
          (4) Armed groups.--The United States understands that 
        the term ``armed groups'' in Article 4 of the Protocol 
        means nongovernmental armed groups such as rebel 
        groups, dissident armed forces, and other insurgent 
        groups.
          (5) No basis for jurisdiction by any international 
        tribunal.--The United States understands that nothing 
        in the Protocol establishes a basis for jurisdiction by 
        any international tribunal, including the International 
        Criminal Court.

SEC. 3. CONDITIONS.

    The advice and consent of the Senate under section 1 is 
subject to the following conditions:
          (1) Requirement to deposit declaration.--The 
        President shall, upon ratification of the Protocol, 
        deposit a binding declaration under Article 3(2) of the 
        Protocol that states in substance 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 Forces 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;
                  (C) each person recruited into the Armed 
                Forces of the United States receives a 
                comprehensive briefing and must sign an 
                enlistment contract that, taken together, 
                specify the duties involved in military 
                service; and
                  (D) all persons recruited into the Armed 
                Forces of the United States must provide 
                reliable proof of age before their entry into 
                military service.
          (2) Interpretation of the protocol.--The Senate 
        reaffirms condition (8) of the resolution of 
        ratification of the Document Agreed Among the States 
        Parties to the Treaty on Conventional Armed Forces in 
        Europe (CFE) of November 19, 1990 (adopted at Vienna on 
        May 31, 1996), approved by the Senate on May 14, 1997 
        (relating to condition (1) of the resolution of 
        ratification of the INF Treaty, approved by the Senate 
        on May 27, 1988).
          (3) Reports.--
                  (A) Initial report.--Not later than 90 days 
                after the deposit of the United States 
                instrument of ratification, the Secretary of 
                Defense shall submit to the Committee on 
                Foreign Relations and the Committee on Armed 
                Services of the Senate a report describing the 
                measures taken by the military departments to 
                comply with the obligation set forth in Article 
                1 of the Protocol. The report shall include the 
                text of any applicable regulations, directives, 
                or memoranda governing the policies of the 
                departments in implementing that obligation.
                  (B) Subsequent reports.--
                          (i) Report by the secretary of 
                        state.--The Secretary of State shall 
                        submit to the Committee on Foreign 
                        Relations and the Committee on Armed 
                        Services of the Senate a copy of any 
                        report submitted to the Committee on 
                        the Rights of the Child pursuant to 
                        Article 8 of the Protocol.
                          (ii) Report by the secretary of 
                        defense.--Not later than 30 days after 
                        any significant change in the policies 
                        of the military departments in 
                        implementing the obligation set forth 
                        in Article 1 of the Protocol, the 
                        Secretary of Defense shall submit a 
                        report to the Committee on Foreign 
                        Relations and the Committee on Armed 
                        Services of the Senate describing the 
                        change and the rationale therefor.
                              VIII. Annex

  HEARING ON PROTOCOLS ON CHILD SOLDIERS AND SALE OF CHILDREN (Treaty 
                              Doc. 106-37)

                              ----------                              


                                CONTENTS

                                                                    Page

Becker, Ms. Jo, Children's Rights Advocacy Director, Human Rights 
    Watch, New York, NY...........................................    55
    Prepared statement............................................    58
    Responses to additional questions for the record from Senator 
      Helms.......................................................    61
Billingslea, Marshall, Deputy Assistant Secretary for Negotiations 
    Policy, Department of Defense, Washington, DC.................    29
    Prepared statement............................................    33
    Responses to additional questions for the record from Senator 
      Boxer.......................................................    43
    Responses to additional questions for the record from Senator 
      Helms.......................................................43, 46
Carroll, RADM. Eugene, J., Jr., USN (Ret.), Vice President 
    Emeritus, Center for Defense Information, Washington, DC......    64
    Prepared statement............................................    66
    Responses to additional questions for the record from Senator 
      Helms.......................................................    67
Fanning, RADM. Timothy O., Jr., USNR (Ret.), National President of 
    the Navy League of the United States, Arlington, VA...........    68
    Prepared statement............................................    69
    Responses to additional questions for the record from Senator 
      Helms.......................................................    70
Feingold, Hon. Russell D., U.S. Senator from Wisconsin, prepared 
    statement.....................................................    73
Malcolm, John G., Deputy Assistant Attorney General, Criminal 
    Division, Department of Justice, Washington, DC...............    46
    Prepared statement............................................    48
    Responses to additional questions for the record from Senator 
      Helms.......................................................    49
Responses to Additional Questions for the Record Submitted to 
    Various Witnesses and Government Agencies from Senators Biden 
    and Helms.....................................................    79
Revaz, Cris R., on behalf of the American Bar Association, 
    prepared statement............................................    73
Southwick, Hon. E. Michael, Deputy Assistant Secretary for 
    International Organization Affairs, Department of State, 
    Washington, DC................................................    23
    Prepared statement............................................    25
    Responses to additional questions for the record from Senator 
      Helms.......................................................    27

                              ----------                              


                        THURSDAY, MARCH 7, 2002

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The Committee met at 10:20 a.m., in room SD-419, Dirksen 
Senate Office Building, Hon. Barbara Boxer, presiding.
    Present: Senators Boxer, Wellstone, and Helms.
    Senator Boxer. The Senate Foreign Relations Committee will 
come to order.
    I am very delighted to see that Senator Helms is here at 
this very important hearing.
    Today the Committee meets to consider two optional 
protocols to the U.N. Convention on the Rights of the Child. 
The Optional Protocol on Involvement of Children in Armed 
Conflict, also known as the Child Soldiers Protocol, aims to 
prevent children under the age of 18 from directly 
participating in hostilities. The second treaty, the Optional 
Protocol on the Sale of Children, Child Prostitution, and Child 
Pornography, aims to strengthen efforts to put a stop to the 
trafficking and exploitation of children.
    To avoid any confusion, I want to point out that these are 
protocols to the U.N. Convention on the Rights of the Child. 
While the United States has not ratified the underlying 
convention, we can become a party to both protocols without 
becoming a party to the convention or without becoming subject 
to its provisions. There are divisions on that particular 
question, so we are not taking up the underlying treaty. We are 
just talking about the optional protocols.
    The Child Soldiers Protocol requires states parties to the 
treaty to, one, take all feasible measures to ensure that 
individuals under the age of 18 do not take a direct part in 
hostilities. Two, it bans involuntary recruitment into the 
armed forces for those under the age of 18, and I underline 
``involuntary.'' And three, it raises the minimum age for 
voluntary recruitment into the armed forces from the current 
benchmark of 15 years of age to that of 16 or higher. Under 
current law, the minimum age for voluntary recruitment in the 
United States of America is already set at 17.
    Why is ratification of the Child Soldiers Protocol 
important? Right now, an estimated 300,000 children under the 
age of 18 are currently fighting in more than 30 conflicts 
around the world. In places like Sierra Leone, children have 
been kidnaped by rebel groups, given drugs, and forced to 
commit atrocities. Child soldiers not only lose their 
childhood, but they develop psychological scars, they suffer 
physical injuries, and in the worst cases, they die.
    Listen to the story of a 16-year-old girl who was abducted 
by the Lord's Resistance Army in Uganda, and I am quoting this 
child, this girl. ``One boy tired to escape but he was caught. 
His hands were tied, and then they made us, the other new 
captives, kill him with a stick. I felt sick. I knew this boy 
from before. We were from the same village. I refused to kill 
him, and they told me they would shoot me. They pointed a gun 
at me, so I had to do it. The boy was asking me, why are you 
doing this? I said I had no choice. After we killed him, they 
made us smear his blood on our arms. They said we had to do 
this so we would not fear death and so we would not try to 
escape. I still dream about the boy from my village who I 
killed. I see him in my dreams and he is talking to me and 
saying I killed him for nothing and I am crying.''
    To those who believe this is a problem that does not affect 
us in the United States, because clearly our rules comply with 
the protocol, you only have to look at Afghanistan. And I want 
to show you a photo here, Senator Helms. This was actually a 
photo pre-Taliban where you see these literally--I call them 
babies, but children with their guns, with their tattered 
shoes, and with a look in their eyes that you could just see--
well, in many ways the numbness.
    So, here you have a situation in Afghanistan, and there are 
reports today that children as young as 12 are taking part in 
the fighting. As one captured Taliban fighter said earlier this 
year--and you see the cynicism and the evil in this comment--
``Children are innocent, so they are the best tools against 
dark forces.''
    This is one reason why it is in our national interest to 
ratify this protocol. Our military personnel are some of our 
Nation's most decent and honorable citizens. I can only imagine 
the moral dilemma faced by our soldiers if they come face to 
face with an AK-47 in the hands of a 12-year-old child.
    But it is not only in our national interest, it is our 
moral obligation. We must send a signal to the rest of the 
world that the use of child soldiers is intolerable.
    The second treaty for consideration this morning is the 
Protocol on the Sale of Children, Child Prostitution, and Child 
Pornography. The Sale of Children Protocol requires states 
parties to make sure that these acts are fully covered by penal 
or criminal law. This abuse of children is a global problem. 
Millions of boys and girls under the age of 18 are bought and 
sold each year. Girls are particularly vulnerable.
    According to UNICEF, the U.N. Children's Fund, girls appear 
to be forced into the sex industry at increasingly younger 
ages, partly as a result of the mistaken belief that younger 
girls are unlikely to be infected with HIV or AIDS. Let me 
mention a few atrocious examples.
    A 15-year-old boy from Mali watched the torture and 
subsequent death of two other forced laborers who tried to 
escape from a coffee plantation in the Ivory Coast.
    A 14-year-old girl was brutally raped and then prostituted 
for months by traffickers in Florida who lured her there by 
promising her a job in the restaurant business.
    An 11-year-old girl in Thailand was included in a sexually 
explicit videotape produced by a pornographer in the United 
States of America.
    Under the protocol, countries are encouraged to cooperate 
to protect children trafficked across borders. The optional 
protocol also calls on states parties to ensure that children 
who have been sexually trafficked, exploited, or sexually 
abused receive services to ensure a complete physical and 
psychological recovery.
    Ratification of this treaty is important to protect these 
vulnerable children. These children cannot often get help on 
their own not only because of the young age, but also because 
they have no birth certificate or official document. They are, 
in effect, invisible.
    Earlier this year, both of these protocols obtained the 
necessary 10 ratifications to make them operative. The Child 
Soldier Protocol entered into force on February 12. The Sale of 
Children Protocol entered into force on January 18.
    I very much appreciate the support of the administration 
for these protocols, and I want to thank the representatives 
from the Departments of State, Defense, and Justice for joining 
us here this morning. Before I introduce them formally, it is 
my honor to call on Senator Helms for his opening remarks.
    Senator Helms. Thank you, Madam Chairman. I was watching 
you intently as you delivered your statement, and you were on 
the verge of choking up a time or two. I think that tells 
something about you, as well as the issue that we have.
    I sit at home and see these children on television with 
their little bloated bellies and little, tiny arms, and I 
wonder what in the dickens Jesse Helms could do.
    And maybe this will strike a blow a little bit, but before 
I get started, I do not know whether any of you gentlemen have 
ever heard of Franklin Graham or not. He is Billy Graham's son. 
And he does great work with Samaritan's Purse, an organization 
that he operates worldwide. One of the features of this past 
year was the collection of 5\1/2\ million shoe boxes filled 
with little gifts, toothpaste, soap, candy, a comb maybe, 
whatever, and wrapped in Christmas paper. And the Air Force has 
been so helpful in distributing those.
    Franklin told me that one little boy broke his heart. He 
had never gotten a present of any sort before, none ever. And 
this gaudy Christmas package, he thought the package was his 
present. He did not know he was supposed to unwrap it and see 
what Santa Claus had brought him.
    So, we can sit here smugly in our comfort and in our good 
fortune--and the older I get, and I am getting older faster. 
But we have got to do something about the children of the 
world, and this is a step.
    Now, the two protocols represent, as the distinguished 
chairman has said, well-intended efforts to protect the lives 
of children.
    The Protocol on the Sale of Children seems to protect 
children from the most reprehensible attacks that she has 
talked about by criminalizing such activities as the outright 
sale of children and pornography and the prostitution of 
children. And it is going on rampant. I think all countries, 
none excluded, have got to do their utmost to provide a safe 
and nurturing environment for these children.
    With regard to the Child Soldiers Protocol, I guess I 
better make myself perfectly clear, as one of the Presidents 
used to say. The forced conscription of children--some as young 
as 7 years old--to fight is an abominable, reprehensible 
practice wherever it is occurring. But this horrible practice 
is taking place in Africa, East Asia, and elsewhere, and 
everybody on this panel knows that as well as I do or better. 
Our visitors, whom we welcome here this morning, I hope will 
understand the importance of this meeting here.
    American ratification of this protocol should not and must 
not be used by some to undermine our military recruiting 
efforts and deployment policies. Most of the estimated 300,000 
children who are fighting as soldiers--and I find that 
absolutely amazing--are fighting as soldiers in 41 countries. 
They are conscripted by paramilitary groups, not the legitimate 
governments of those countries. So, my conclusion, Madam Chair, 
is that we better not fool ourselves that another international 
convention which will never be seen nor read nor considered nor 
observed by these paramilitaries will solve this unthinkable 
problem.
    Now, the Department of Defense representative here today 
may tell us that compliance with the protocol is manageable, as 
indeed almost any problem is, but I do hope that we will be 
hearing assurances that military commanders will not be impeded 
in their operations or charged with violating this protocol. In 
fairness to them, whom we send overseas to defend us, we must 
see that the disruption of unit morale and readiness--factors 
critical to maintaining a robust military and winning in any 
armed conflict, are not hurt or deterred.
    One more thing, Madam Chairman. I am going to seek 
assurances that this protocol will not incur a legal liability 
on the United States taxpayers to help other nations through 
financial and other assistance comply with this protocol, and 
that ratification will not give legal recognition to the 
Convention on the Rights of the Child.
    I am just about through. I have assured Senator Biden, the 
chairman of this Committee, that I will work with him and with 
our President to ensure that the appropriate conditions and 
reservations are placed in the resolution of ratification to 
protect our current recruitment practices and safeguard our 
existing foreign policies and support military commanders who 
are trying to do their duty. We must do that, but we must find 
a way to help these children and I think we can do it if we put 
our minds to it.
    Thank you, Madam Chair.
    Senator Boxer. Thank you so much, Senator Helms. I hope 
when our panel speaks today, they will address your concerns. I 
have a feeling they knew you had them, and so I think that you 
may well have your fears allayed on this. I hope so, in any 
case.
    Let me introduce the whole panel and then we will start 
with Ambassador Southwick. Ambassador Michael Southwick, Deputy 
Assistant Secretary for the Bureau on International 
Organization Affairs at the State Department, led the team that 
successfully negotiated the Optional Protocol on Child 
Soldiers. He is a native of my home State of California and a 
graduate of Stanford University.
    Mr. Marshall Billingslea is Deputy Assistant Secretary for 
Negotiations Policy at the Department of Defense. Mr. 
Billingslea is a former staff member of the Senate Foreign 
Relations Committee and he is a new father, and we welcome you 
back and we thank you for coming this morning.
    Mr. John Malcolm, Deputy Assistant Attorney General at the 
Justice Department's Criminal Division, recently headed the 
U.S. delegation to the Second World Congress on Commercial 
Sexual Exploitation of Children.
    We are very happy the three of you are here. Again, I want 
to thank the administration for working with us on this very 
important hearing and hopefully to see this thing through 
successfully.
    Ambassador Southwick, will you open please.

STATEMENT OF HON. E. MICHAEL SOUTHWICK, DEPUTY ASSISTANT 
  SECRETARY FOR INTERNATIONAL ORGANIZATION AFFAIRS, DEPARTMENT OF 
  STATE, WASHINGTON, DC

    Ambassador Southwick. Thank you, Madam Chairperson, Senator 
Helms. I am very pleased to appear before you today 
representing the Bush administration to speak in support of 
Senate advice and consent to ratification of two historic 
international treaties advancing international efforts to 
protect the children of the world. The first concerns children 
in armed conflict; the second concerns the sale of children, 
child prostitution, and child pornography.
    The State Department worked closely with the Department of 
Defense on the Protocol on Children in Armed Conflict, and with 
the Justice Department on the Protocol on the Sale of Children.
    As the German theologian Dietrich Bonhoeffer observed, 
``the test of morality of a society is what it does for 
children.'' This is a test we believe that the United States 
and the international community cannot afford to fail. The 
statistics are staggering, as some of you have mentioned 
already. An estimated 30 million children worldwide are 
sexually exploited, prostituted, and trafficked each year. 
Sixty million children work under intolerable forms of labor, 
and an estimate 300,000 children have been recruited as 
participants in ongoing armed conflicts. These two treaties are 
a part of the efforts of the United States and many other 
countries to address these problems.
    In this connection, 2 years ago the United States became 
the third state to ratify International Labor Organization's 
Convention 182 on the Worst Forms of Child Labor. Now, the 
administration hopes that the United States will become one of 
the first states to ratify these two protocols now under 
consideration. Together these instruments form a trio of vital 
protections for children around the world.
    We recognize that these treaties are not magic wands. They 
are tools. They can be used. They can help. A lot depends on 
how we followup once, if the Senate so agrees, they receive 
advice and consent.
    The transmittal of these two protocols to the Senate on 
July 25, 2000, includes a detailed article-by-article analysis 
of each instrument. I will not restate in my testimony today 
detailed explanations of the protocol's provisions or our 
proposed understandings and declaration, but will highlight for 
the Committee some of the key provisions of each protocol.
    I note, as has already been mentioned, that though these 
protocols are styled as protocols to the Convention on the 
Rights of the Child, by its terms these protocols will operate 
as independent multilateral agreements under international law. 
States may ratify either protocol without becoming a party to 
the convention or being subject to its provisions.
    The Children in Armed Conflict Protocol deals realistically 
with difficult issues of minimum ages for compulsory 
recruitment, voluntary recruitment, and participation in 
hostilities. The protocol raises the age for military 
conscription in international legal instruments from 15 years 
to 18 years, consistent with the requirements of ILO Convention 
182. It obliges states parties to raise the minimum age for 
voluntary recruitment to an age above the current 15-year 
international standard. It also mandates that states parties 
take all feasible measures to ensure that personnel in their 
national armed services who are not yet 18 do not take a direct 
part in hostilities. States parties to the protocol must also 
prohibit and criminalize the recruitment and use of persons 
below the age of 18 by non-governmental armed groups.
    The provisions permitting voluntary recruitment below 18 
and direct use of those soldiers in hostilities in exceptional 
circumstances were essential for the United States, given our 
longstanding tradition of allowing 17-year-olds with parental 
consent to enter the military. As my counterpart from the 
Department of Defense will explain in more detail, the 
administration believes that the provisions in the protocol are 
fully consistent with current U.S. recruiting practice and 
would not adversely affect the military's ability to accomplish 
its national security missions.
    In our view, another important aspect of the protocol 
concerns its provisions promoting international cooperation. In 
many parts of the world, including Uganda where I served as 
Ambassador, children as young as 10 or 11 years old carry guns, 
machetes, and are deeply involved in armed conflict. The 
protocol will promote rehabilitation of children who have been 
victimized by armed conflict.
    The Sale of Children Protocol directly complements ILO 182 
on the Worst Forms of Child Labor. It is the first 
international instrument to define the terms ``sale of 
children,'' ``child prostitution,'' ``child pornography.'' The 
protocol requires these offenses to be treated as criminal acts 
and provides law enforcement and cooperation tools for the 
purpose of bringing perpetrators of these offenses to justice. 
Additionally, the protocol establishes stronger grounds for 
jurisdiction and extradition. Moreover, its extensive 
provisions on prevention and cooperation will help child 
victims receive the protection and assistance they need.
    In many countries, the age of sexual consent is set between 
the ages of 13 and 16, and if a child of that age has consented 
to a sexual act, no crime involving child prostitution or child 
pornography has been committed. The protocol, however, 
precludes the possibility that a child under 18 could consent 
to crimes such as child prostitution, child pornography, and 
trafficking in children. It broadly requires that states 
parties criminalize activities relating to child prostitution 
and child pornography without reference to state law or the age 
of consent.
    The two protocols, together with ILO 182, provide we 
believe a firm foundation for international action on behalf of 
children. No one country can fight this battle alone. It is a 
worldwide problem. Nations must join together in taking 
responsibility for improving the plight of children. The goal 
of the United States, we hope, is that all countries will join 
this battle and put an end to these abuses.
    Thank you, Madam Chairperson.
    [The prepared statement of Ambassador Southwick follows:]

   Prepared Statement of Hon. E. Michael Southwick, Deputy Assistant 
 Secretary for International Organization Affairs, Department of State

    I am pleased to appear before you today to speak in support of 
Senate advice and consent to ratification of two historic international 
treaties advancing international efforts to protect the children of the 
world. The first is the Optional Protocol to the Convention on the 
Rights of the Child on Involvement of Children in Armed Conflict. The 
second is the Optional Protocol to the Convention on the Rights of the 
Child on the Sale of Children, Child Prostitution and Child 
Pornography.
    The State Department worked closely with the Defense Department on 
the Protocols on Children in Armed Conflict and with the Justice 
Department on the Protocol on the Sale of Children, Child Prostitution 
and Child Pornography. I am pleased to be joined here today by 
representatives of both agencies.
    As the German theologian Dietrich Bonhoeffer observed, ``the test 
of morality of a society is what it does for children.'' This is a test 
the United States and the international community cannot afford to 
fail. The statistics are staggering: (1) an estimated 30 million 
children world-wide are sexually exploited, prostituted and trafficked 
each year; (2) 60 million children work under intolerable forms of 
labor; and, (3) an estimated 300,000 children have been recruited as 
participants in on-going armed conflicts and over two million have been 
killed as a result of these conflicts. These two treaties are a part of 
the efforts of the United States and many other countries to address 
these problems.
    In this connection, two years ago the United States became the 
third state to ratify International Labor Organization's Convention 182 
on the Worst Forms of Child Labor. That instrument has become the most 
quickly ratified convention in the history of the ILO, with 117 states 
parties. Now the Administration hopes that the United States will 
become one of the first states to ratify these two protocols now under 
consideration by this Committee. Together these new instruments form a 
trio of vital protections for children around the world.
    The transmittal of these two protocols to the Senate, on July 25, 
2000, includes a detailed article-by-article analysis of each 
instrument. The transmittal recommended three understandings and one 
declaration on the children in armed conflict protocol and five 
understandings and one declaration for the sale of children protocol. I 
will not restate in my testimony today detailed explanations of the 
protocols' provisions or our proposed understandings and declaration, 
but will highlight for the Committee some of the key provisions of each 
protocol and will explain why the Administration strongly supports 
early Senate approval of these two protocols.
    Before discussing the protocols further, I note that although they 
are styled as protocols to the Convention on the Rights of the Child, 
each protocol, by its terms, will operate as an independent 
multilateral agreement under international law. States may ratify 
either protocol without becoming a party to the Convention or being 
subject to its provisions.
                  children in armed conflict protocol
    The Children in Armed Conflict Protocol deals realistically and 
reasonably with the difficult issues of minimum ages for compulsory 
recruitment, voluntary recruitment, and participation in hostilities. 
The protocol raises the age for military conscription in international 
legal instruments from 15 years to 18 years, consistent with the 
requirements of ILO Convention 182. It also obliges states parties to 
raise the minimum age for voluntary recruitment to an age above the 
current fifteen-year international standard, and also mandates that 
states parties take all feasible measures to ensure that personnel in 
their national armed forces who are not yet eighteen do not take a 
direct part in hostilities. States parties to the protocol must also 
prohibit and criminalize the recruitment and use of persons below the 
age of eighteen by non-governmental armed groups.
    The provisions permitting voluntary recruitment below 18 and direct 
use of those soldiers in hostilities in exceptional circumstances were 
essential for the U.S., given our long standing tradition of allowing 
17-year-olds with parental consent to enter the military. As my 
counterpart from DOD will explain in more detail, the Administration 
believes that the provisions in the protocol are fully consistent with 
current U.S. recruiting practices and would not adversely affect the 
military's ability to accomplish its national security missions.
    In our view, another important aspect of the protocol concerns its 
provisions promoting international cooperation. In many parts of the 
world, children as young as ten or eleven years old carry guns or 
machetes and are deeply engaged in armed conflict. In Angola and 
Uganda, for example, thousands of children have been abducted and 
forced to become child soldiers. The protocol will not only require 
that states cooperate internationally to prohibit such practices, but 
also to promote rehabilitation of children who have been victimized by 
armed conflict.
                       SALE OF CHILDREN PROTOCOL
    The Sale of Children Protocol directly complements ILO 182 on the 
Worst Forms of Child Labor. It is the first international instrument to 
define the terms ``sale of children,'' ``child prostitution'' and 
``child pornography.'' The protocol requires these offenses to be 
treated as criminal acts and provides law enforcement and cooperation 
tools for the purpose of bringing perpetrators of these offenses to 
justice. Additionally, the protocol establishes stronger, clearer 
grounds for jurisdiction and extradition, to better ensure that 
offenders can be prosecuted regardless of where they are found. 
Moreover, its extensive provisions on prevention and cooperation will 
help child victims receive the protection and assistance they 
desperately need.
    A major dispute in the sale of children negotiations, which was 
resolved to the satisfaction of the United States, concerned the 
minimum age for protection of children from prostitution and 
pornography. In many countries, the age of sexual consent is set 
between the ages of thirteen and sixteen, and if a child of that age 
has consented to a sexual act, no crime involving child prostitution or 
child pornography has been committed. The protocol, however, precludes 
the possibility that a child under eighteen could consent to crimes 
such as child prostitution, child pornography, and trafficking in 
children. It broadly requires that states parties criminalize 
activities relating to child prostitution and child pornography without 
reference to State law or the age of consent.
    The two protocols, together with ILO 182, provide a firm foundation 
for international action on behalf of children. There is simply no 
excuse for children being enslaved, trafficked, exploited in the 
commercial sex and drug trade, or abducted into militias for armed 
conflict.
    No one country can fight this battle alone. Nations must join 
together in taking responsibility for improving the plight of children. 
Governments and the international community must continue to work 
together to prosecute offenders, dismantle the networks of trafficking, 
care for the young victims, establish mechanisms to monitor compliance 
with these instruments to ensure that children have access to schools, 
and enhance international cooperation. The goal of the United States is 
that all countries will join this battle and put an end to these 
abuses.
    Thank you, Madam Chairperson. I will be happy to address any 
questions the Committee might have.

                                 ______
                                 

Responses of Amb. E. Michael Southwick, Deputy Assistant Secretary for 
  International Organization Affairs, Department of State to Additional 
  Questions for the Record Submitted by Senator Jesse Helms

    Question 1. This horrible practice of conscripting children to 
fight wars is occurring in places such as Africa and Asia, and by 
mostly non-state groups and militias.
   How will United States participation in this agreement halt 
        the conscription of ``child soldiers'' in those parts of the 
        world?
   How many countries in Africa or Asia, where ``child 
        soldiers'' are being used, have ratified, or are likely to 
        ratify, the Child Soldiers Protocol?

    Answer. The Children in Armed Conflict Protocol has 100 
signatories. As of April 8, 2002, 19 States have ratified the Protocol. 
They are: Andorra, Austria, Bangladesh, Bulgaria, Canada, the Czech 
Republic, the Democratic Republic of the Congo, the Holy See, Iceland, 
Kenya, Mexico, Monaco, New Zealand, Panama, Romania, Spain, Sri Lanka, 
and Vietnam. The goal of the United States is that all the countries of 
the world will join together and ratify both the Children in Armed 
Conflict Protocol and the Sale of Children Protocol. The two protocols, 
along with ILO Convention No. 182 on the Worst Forms of Child Labor 
form a trio of vital protections for children around the world. In 
December 1999, in large part due to the swift action of the Senate 
Foreign Relations Committee, the United States became the third state 
to ratify ILO Convention No. 182. Subsequently, the United States urged 
all the countries of the world to ratify that Convention. Today, ILO 
Convention No. 182 has become the most quickly ratified convention in 
the history of the ILO with 117 States Parties. We intend to take 
similar action with respect to the two protocols if the Senate gives 
its advice and consent to ratification.

    Question 2. In Article 7 of the Protocol, it states that ``States 
Parties shall cooperate in the implementation of the present Protocol, 
including in the prevention of any activity contrary to the Protocol 
and in the rehabilitation and social reintegration of persons who are 
victims of acts contrary to this Protocol, including through technical 
cooperation and financial assistance.'' Furthermore, part two of this 
article states that ``States Parties in a position to do so shall 
provide such assistance through existing multilateral, bilateral or 
other programs. . . .'' I read this article to incur a legal obligation 
by the United States to provide financial and other assistance to 
countries that are plagued by the conscription of child soldiers. Do 
you agree, and if so, how much do you think this will cost the U.S. 
taxpayer to live up to our obligations under this agreement?

    Answer. Article 7(2), like Article 10(4) of the Sale of Children 
Protocol, specifies that States Parties ``in a position to do so'' 
shall provide financial, technical or other assistance through existing 
multilateral, bilateral or other programs. This language was 
specifically designed to reserve to contributing States the 
determination of what specific assistance they might provide under the 
Protocol. The Protocol will not create any financial obligation for 
U.S. taxpayers since it does not require States Parties to provide a 
specific type or amount of assistance.
    Article 7 reflects the U.S. commitment to assist in bringing an end 
to the tragedy of child soldiers through international cooperation and 
assistance among concerned States and relevant international 
organization. The United States has contributed substantial resources 
to programs aimed at reintegrating child soldiers into society and is 
committed to continue to develop rehabilitation approaches that are 
effective in addressing this seriously difficult problem. The United 
States actively supports activities to assist children affected by war, 
including demobilization, rehabilitation and integration into civilian 
society. The Children in Armed Conflict Protocol should serve as a 
means for encouraging such programs and constitutes an important tool 
for increasing assistance to children who are victims of armed 
conflict.

    Question 3. Article 8 of this Protocol requires States Parties to 
provide reports to the Committee on the Rights of the Child on their 
implementation under this Protocol, and guarantees the Committee on the 
Rights of the Child the right to request additional information from 
States Parties. As you know, the United States does not recognize the 
Committee on the Rights of the Child. Yet, the rights and obligations 
outlined in this article seem to require U.S. recognition of not only 
the Committee, but also the legitimacy of it and its activities. Would 
you agree?

    Answer. At U.S. insistence, both Protocols are independent 
multilateral agreements under international law; States may ratify 
either Protocol without becoming a party to the Convention or being 
subject to its provisions. Our proposed understanding for both 
protocols expressly states: ``The United States understands that the 
Protocol constitutes an independent multi-lateral treaty, and that the 
United States does not assume any obligations under the Convention on 
the Rights of the Child by becoming a party to the Protocol.''
    As detailed in Article 42 of the Convention on the Rights of the 
Child, the Committee on the Rights of the Child consists of ten 
``experts of high moral standing and recognized competence in the field 
of human rights'' serving in their individual capacities and not as 
representatives of governments. The creation of such a body is a 
standard procedure; similar bodies were established, for example, by 
the International Covenant on Civil and Political Rights, the 
Convention on the Elimination of All Forms of Racial Discrimination and 
the Convention against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment (all of which have been ratified by the United 
States).
    As a non-party to the Convention on the Rights of the Child, the 
United States has no obligation to comply with the reporting 
obligations contained in Article 44 of the Convention on the Rights of 
the Child, nor would the Committee on the Rights of the Child be 
authorized to request information from the United States on any matter 
other than implementation of the Protocols, assuming the United States 
becomes a party to the Protocols.
    As discussed more fully in the transmittal memorandum, Articles 8 
(Children in Armed Conflict Protocol) and 12 (Sale of Children 
Protocol) provide that States Parties shall submit, within two years 
following the entry into force of each protocol for that State Party, a 
report to the Committee on the Rights of the Child providing 
comprehensive information on the measures they have taken to implement 
the provisions of each protocol. U.S. reporting would be limited to 
reporting on the measures the United States has taken to implement the 
provisions of the Protocols, consistent with the information provided 
in the transmittal package.
    The protocols grant the Committee on the Rights of the Child no 
authority other than receiving reports and requesting additional 
information relevant to the implementation of the protocols. During the 
negotiations, States rejected proposals that would have permitted the 
Committee, inter alia, to hold hearings, initiate confidential 
inquiries, conduct country visits, and transmit findings to the 
concerned State Party.

    Senator Boxer. Thank you, Mr. Ambassador.
    Senator Helms, you wanted to say a word before Mr. 
Billingslea speaks?
    Senator Helms. Yes, I do. As a matter of personal 
privilege, we have guests in the back, and I want a show of 
hands. Are you able to understand what the witnesses are 
saying? You can hear. If I or anybody else fails to deliver, 
will you raise your hand? Because I want you to hear this.
    Now, I used to work for Marshall Billingslea.
    He was a good boss, and I was sorry to see him go. I was 
visiting with the President yesterday, and he said, well, how 
are things going down there in the shop? I said, well, you 
stole about half of my employees. But we have got some new 
ones. But we miss you, Marshall.
    And as a father of two little girls one time some years 
back--I will not say how many--and five grandchildren who are 
little girls, I say that you have got a pleasant, pleasant life 
ahead of you. Marshall Billingslea is a fine, young man and I 
am honored to see you this morning and I am proud of you 
Marshall.
    Senator Boxer. Mr. Billingslea, please go right ahead, and 
we will remind people you are the Deputy Assistant Secretary 
for Negotiations Policy at the Department of Defense.

STATEMENT OF MARSHALL S. BILLINGSLEA, DEPUTY ASSISTANT SECRETARY FOR 
    NEGOTIATIONS POLICY, DEPARTMENT OF DEFENSE, WASHINGTON, DC 

    Mr. Billingslea. Thank you, Madam Chairwoman, Senator 
Helms. I do not think I could possibly express what an honor it 
is for me to appear before my former Committee and my old boss. 
It is a deeply personal experience for me, and I appreciate the 
opportunity.
    Senator Helms, at the outset let me say that we agree in 
toto with your opening statement. I see it as my task here 
today to provide you with the Department of Defense's 
assessment of the Child Soldiers Protocol and with our 
assessment of the military implications that that protocol will 
have for the United States military.
    After reviewing the protocol, the Department of Defense has 
decided to support its ratification. We do this based on the 
three understandings and the one declaration that were set 
forth in the July 25, 2000, transmittal letter to the Senate. 
These understandings, together with our interpretation of key 
treaty provisions, are fundamental to the Department of 
Defense's determination that the treaty, as drafted, will have 
no impact on our current recruitment practices and will not 
harm the military's ability to accomplish its national security 
mission.
    The rationale for pursuing the Child Soldiers Protocol has 
been clearly articulated by my State Department colleague, 
Ambassador Southwick. The protocol makes clear that the 
practice of recruiting and using underage soldiers in war is a 
morally reprehensible act. The United States, its allies, and 
its friends do not recruit or use underage soldiers.
    We need to be clear at the outset that we do not view the 
Child Soldiers Protocol as a perfect solution to the underage 
soldier problem and that, in and of itself, it will not bring 
an end to the practice. But the protocol will serve as a moral 
and ethical statement by like-minded countries and it will 
foster the kind of diplomatic dialog, attention, and pressure 
that is needed if we are truly to bring an end to the practice 
of recruiting and using underage soldiers.
    For this reason, the Department of Defense has agreed with 
the decision to pursue Senate advice and consent.
    I will now turn to an assessment of the military 
implications of the protocol for the United States on our 
recruitment policies and on our readiness posture.
    In terms of recruitment, our assessment is that 
ratification of the Child Soldiers Protocol should have no 
impact on U.S. military recruiting efforts. The current U.S. 
military practice, which is consistent with existing law, sets 
17 already as the minimum age for voluntary recruitment into 
the armed services. Absent parental consent, the minimum age 
for voluntary recruitment in the United States is 18. For this 
reason, we assess that the protocol will not have an effect on 
U.S. recruiting practices since it simply obligates states 
parties to raise the minimum age for voluntary recruitment to 
something above 15 years.
    Now, the Department of Defense requires that at least 90 
percent of its new recruits have a high school diploma. But 
many enlistment contracts are signed with high school seniors 
who may be as young as 17, and while waiting for graduation, 
these individuals are placed into a delayed entry program. Most 
of these folks turn 18 before they graduate from high school 
and before they ship off to basic training. Of the nearly 
175,000 new enlistees each year that we have, only about 
12,000, about 7 percent, are 17 when they ship to basic 
training, and nearly all of those will be 18 while they are in 
training. In fact, at no time since 1982 has the percentage of 
17-year-old recruits into the armed forces exceeded 8 percent. 
So, what I will tell you is that we see that qualified 17-year-
olds will remain an integral part of the United States military 
recruiting efforts for the foreseeable future, but we do not 
expect the numbers to fluctuate significantly or to see 17-
year-olds begin to dominate our recruiting pool. No one under 
age 17 is eligible for recruitment, and that includes 
participation in the delayed entry program.
    For this reason, we see that ratifying the Child Soldiers 
Protocol will not affect our ability to recruit 17-year-old 
volunteers. The administration recommends, consistent with the 
transmittal package to the Senate, that a declaration be 
adopted providing inter alia that 17 is the minimum age at 
which the United States will permit voluntary recruitment. That 
is consistent with U.S. law and current recruiting practices.
    The provisions of the Child Soldiers Protocol prohibiting 
compulsory recruitment, conscription, below the age of 18 also 
are consistent with U.S. law and practice. Although the United 
States does not currently employ the draft to fill the ranks of 
our armed forces and we do not envision in the future a need to 
do so, U.S. law already prohibits compulsory recruitment of 
people under the age of 18.
    Now, on several occasions we have consulted with senior 
Committee staff, and we have been queried about how the United 
States is going to implement the protocol in the event of a 
major, unforeseen regional or global contingency. It has been 
pointed out to us that a number of United States Senators and 
Congressmen were 17 when they volunteered to fight in World War 
II.
    First, I would like to reiterate that the protocol permits 
voluntary recruitment of 17-year-olds. So, the United States, 
if we ratify the protocol, will continue to have patriotic 17-
year-olds voluntarily enlist with the consent of their parents 
to defend the United States in time of need.
    Second, we point out that the requirements of the protocol 
concerning recruitment are consistent with the practices that 
we used during previous national emergencies, such as World 
Wars I and II. The Joint Chiefs of Staff have assessed that 
ratification of the protocol would not affect their ability to 
carry out their national security missions, but if a national 
emergency of unforeseen proportions were to arise, we would 
evaluate the situation in light of the nature and the scope of 
that emergency.
    On to readiness. The second question to ask is how will 
ratification of the Child Soldiers Protocol affect our military 
readiness and the Department of Defense's ability to 
successfully accomplish its missions. The short answer, based 
on how the United States interprets the treaty--and I am going 
to provide you with the interpretation here today--is that it 
should not--it should not--affect our readiness, although we 
are going to have to make some changes in our military 
practices.
    Should the United States ratify the Child Soldier Protocol, 
Article I of the protocol would require us to ``take all 
feasible measures'' to ensure that members of our armed forces 
who have not attained the age of 18 do not take a ``direct part 
in hostilities.''
    As discussed earlier, virtually all 17-year-olds who enter 
the United States armed forces are high school seniors and then 
placed in the delayed entry program until after they earn their 
diploma. When they ship to basic training, only about 12,000 
are still 17 years old. On average, basic training lasts from 4 
to 6 months, depending on the service, and nearly all of the 
17-year-olds going to basic training turn 18 during this 
period. It is only after this training is completed that a 
servicemember would be considered fully trained and ready for 
an operational assignment. In other words, most of our recruits 
age-out of the protocol's Article I restriction before being 
deployed.
    We estimate that of the 12,000 17-year-olds, only about 
2,300 in any given year--in other words, less than 0.25 percent 
of the total enlisted force--are still 17 by the time they 
complete their training, and most of these are going to turn 18 
within 1 to 3 months. For fiscal year 2001, there were only 
2,263 individuals who were 17 when they reached their 
operational base.
    For the remainder of time prior to their 18th birthday, 
these 17-year-old servicemembers are going to be covered by the 
protocol's Article I restriction. However, this should not pose 
a problem. The services already have great leeway in how they 
assign troops to units and how units are deployed. Further, we 
are going to interpret the requirements of Article I in a way 
that makes most operational assignments no problem for 17-year-
olds. Consistent with our proposed understanding, we interpret 
the phrase ``direct part in hostilities'' to mean 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.
    Thus, a fully trained and deployable servicemember can 
perform any function in theater for combat units as long as 
they themselves are not taking actual action on the battlefield 
that is likely to cause harm to the enemy. In other words, we 
read the protocol to apply specifically to 17-year-olds 
directly engaged in hostile activity on the battlefield. We do 
not interpret activities engaged in or by combat support or 
combat service support units or functions as falling within the 
scope of Article I. This interpretation is consistent with the 
overall humanitarian concern the protocol is meant to address; 
that is, children being misused by warring factions in various 
civil and ethnic conflicts around the globe.
    So, in order to implement the protocol, the Department of 
Defense is going to focus on when and where 17-year-olds are 
deployed. Certainly we do not want the protocol to have a 
negative effect on morale and unit cohesion, as you warned in 
your opening statement, Senator. Further, we need to be able to 
put 17-year-olds in roles where they can make the greatest 
contribution to the military, rather than to start placing them 
on the basis of their age. By focusing on deployment, as 
opposed to how we assign 17-year-olds to units, we will avoid 
needlessly complicating our military readiness posture.
    I note that we are also obligated by the protocol to take 
all measures to prevent 17-year-olds from taking part in 
hostilities. I am sorry. Let me clarify that. We are not 
obligated to take all measures to stop them from taking part in 
hostilities or even a direct part in hostilities. We are 
obligated to take all feasible measures.
    The word ``feasible'' is significant. Consistent with our 
proposed understanding, we interpret this to mean that our U.S. 
military commanders are obligated to take ``those measures 
which are practical or practically possible taking into account 
all circumstances ruling at the time.'' That includes 
humanitarian and military considerations. We are not prepared 
to adopt an absolute standard. Flexibility and the rule of 
reason have got to apply.
    Given our presence in many countries around the globe and 
the wide range of missions that the military is called upon to 
fulfill and the ongoing war against terrorism, we must 
recognize that unusual circumstances may arise requiring a 17-
year-old servicemember to take a direct part in hostilities. 
For example, a 17-year-old could be part of the peacekeeping 
contingent that is unexpectedly fired upon. He may be a 
crewmember on a ship that unexpectedly comes under terrorist 
attack or which is diverted into an area of operations to 
respond to an unforeseen contingency. We cannot be in a 
situation where a ship's captain, suddenly called upon to 
engage in combat operations, has to cull through the ship's 
crew all of the 17-year-olds and either send them home or below 
decks. Similarly, we cannot allow a situation to arise, in the 
midst of perhaps a crisis such as that which occurred in 
Somalia, where the base commander, before sending an extraction 
team to help U.S. peacekeepers suddenly under attack, would 
have to cull through all of his units to remove 17-year-olds.
    We should not put our field commanders in the position of 
constantly worrying about being second-guessed. Therefore, the 
presumption of the commander in the field should be that the 
headquarters unit issuing or authorizing the deployment of the 
17-year-old has already taken into account the protocol's 
requirements. Concomitantly, we do not foresee changes to the 
Uniform Code of Military Justice which would affect field 
commanders or lead to them being second-guessed.
    Within these parameters, we believe that the effect of the 
Child Soldiers Protocol upon our military will be manageable. 
Application of the protocol in this fashion, as I said at the 
outset, is fundamental to our decision to support ratification.
    Finally, there are two other important views that the 
Department of Defense takes regarding the protocol.
    First, as stated by Ambassador Southwick, and by Chairman 
Boxer, although the protocol is styled as a protocol to the 
Convention on Rights of the Child, it will by its own terms 
operate as an independent multilateral agreement under 
international law. States may ratify the protocol without 
becoming a party to the Convention on Rights of the Child or 
being subject to its provisions. We intend to keep a 
``firewall'' between the two treaties, and we are going to work 
with our Department of State colleagues to ensure that as 
information is provided under Article 8 to the Committee on 
Rights of the Child, that the distinction between the two does 
not become blurred.
    Second, the United States will retain sole responsibility 
for ensuring that it adheres to the protocol. Accordingly, no 
United States national will ever be subjected to the 
jurisdiction of any international tribunal, whether the 
International Criminal Court or an ad hoc arrangement, unless 
the United States has first explicitly recognized the 
jurisdiction of such a tribunal over these matters. As the 
administration has made clear, we oppose the International 
Criminal Court and we will not allow under any circumstances 
the ICC to claim jurisdiction over U.S. nationals.
    And finally, I reiterate that we intend to interpret these 
key terms such as ``all feasible measures'' and ``direct part 
in hostilities'' in a straightforward, common sense fashion as 
set out in the administration's transmittal documents.
    So, in conclusion, the Department of Defense supports the 
administration's decision to proceed with asking for Senate 
advice and consent to ratification of the Child Soldiers 
Protocol. Utilizing the approach we have identified here, we 
think that ratification of the protocol will not have an 
adverse impact on our recruiting practices or force structure, 
nor would it impair the ability of our armed services to 
execute their operational missions.
    Thank you.
    [The prepared statement of Mr. Billingslea follows:]

    Prepared Statement of Marshall S. Billingslea, Deputy Assistant 
              Secretary of Defense, Department of Defense

                              INTRODUCTION
    Madame Chairman, other Members of the Committee, I appear before 
the Senate Committee on Foreign Relations to present the views of the 
Department of Defense on the Optional Protocol on the Involvement of 
Children in Armed Conflict, otherwise known as the ``Child Soldiers 
Protocol.''
    After reviewing the Protocol, the Department of Defense has decided 
to support its ratification, based upon the three understandings and 
one declaration set forth in the July 25, 2000, transmittal letter. 
These understandings, and our interpretation of key treaty provisions, 
are fundamental to the Department of Defense's determination that the 
treaty, as drafted, will have no impact on our current recruitment 
practices, and will not harm the military's ability to accomplish its 
national security mission.
    The rationale for pursuing the Child Soldiers Protocol has been 
clearly articulated by my State Department colleague, Ambassador 
Southwick. The Protocol makes clear that the practice of recruiting and 
using underage soldiers in war is a morally reprehensible act. The 
United States, its allies, and its friends do not recruit or use 
underage soldiers.
    But in many regions of the world, wracked by civil war or 
insurgency, it is commonplace to see children bearing arms. In some 
cases, this occurs when communities try to defend themselves from 
aggression or genocide. In other cases, it is the result of child 
conscription, literally at gunpoint, by warring factions. Recruiting 
and using underage soldiers--and the social, political, and economic 
conditions that give rise to the practice--is deplorable.
    We need to be clear, at the outset, that we do not view the Child 
Soldiers Protocol as a perfect solution to the underage soldier problem 
and that, in and of itself, it will not bring an end to the practice. 
But, the Protocol will serve as a moral and ethical statement by 
likeminded countries, and will foster the kind of diplomatic dialogue, 
attention, and pressure, that is needed to truly bring an end to the 
practice of recruiting and using underage soldiers.
    For this reason, the Department of Defense has agreed with the 
decision to pursue Senate advice and consent. I will turn now to an 
assessment of the military implications of that decision on our 
recruitment policies and readiness posture.
                               RECRUITING
    U.S. ratification of the Child Soldiers Protocol should have no 
impact on U.S. military recruiting efforts. The current U.S. military 
practice, which comports with U.S. law (10 USC 505), sets seventeen as 
the minimum age for voluntary recruitment, provided parental consent is 
obtained. Absent parental consent, the minimum age for voluntary 
recruitment in the United States is eighteen. For this reason, the 
Protocol will not have an effect on U.S. recruiting practices, since it 
simply obligates States parties to raise the minimum age for voluntary 
recruitment to an age above 15 years.
    The Department requires at least 90% of new recruits to have a high 
school degree, but many enlistment contracts are signed with high 
school seniors who may be as young as 17. While waiting for graduation, 
these individuals are placed in the Delayed Entry Program. Most of 
these individuals turn 18 before graduating from high school and 
shipping to basic training. Of the nearly 175,000 new enlistees each 
year, only about 12,000 (just under 7%) are 17 when they ship to basic 
training, and nearly all of those will turn 18 while in training. At no 
time since 1982 has the percentage of 17-year-old recruits into the 
Armed Forces exceeded 8%. Qualified 17-year-olds will remain an 
integral part of the U.S. military's recruiting efforts into the 
foreseeable future, but we do not expect their numbers to fluctuate 
significantly, or to dominate our recruiting pool. No one under age 17 
is eligible for recruitment, including participation in the Delayed 
Entry Program.
    Ratifying the Child Soldiers Protocol will not affect our ability 
to recruit 17-year-old volunteers. The Administration recommends, 
consistent with the transmittal package, that a declaration be adopted 
providing inter alia that 17 is the minimum age at which the United 
States will permit voluntary recruitment. That is consistent with U.S. 
law and current recruiting practices.
    The provisions of the Child Soldiers Protocol prohibiting 
compulsory recruitment of persons below the age of 18 also are 
consistent with U.S. law and practice. Although the United States does 
not employ the draft to fill the ranks of its Armed Forces (nor do we 
envision the need to do so), U.S. law already prohibits compulsory 
recruitment of persons under the age of eighteen.
    Now, on several occasions as we have consulted with senior 
Committee staff, we were queried about how the United States would 
implement the Protocol in the event of a major, unforeseen regional or 
global contingency. It has been pointed out to us that a number of 
United States Senators and Congressmen were 17 when they volunteered to 
fight in World War II.
    First, I would like to reiterate that the Protocol permits 
voluntary recruitment of 17-year-olds. So, should the United States 
ratify the Protocol, patriotic 17-year-olds will still be able to 
voluntarily enlist (with the consent of their parents) to defend the 
United States in time of need, just as many brave 17-year-olds have 
done throughout our nation's history. Second, we would point out that 
the requirements of the Protocol concerning recruitment are entirely 
consistent with U.S. practices during previous major national 
emergencies such as World Wars I and II. The Joint Chiefs of Staff have 
assessed that ratification of the Protocol would not affect their 
ability to carry out their national security missions. But, if a 
national emergency of unseen proportions were to arise, we would 
evaluate the situation in light of the nature and scope of the 
emergency.
                               READINESS
    A second question to ask is how ratification of the Child Soldiers 
Protocol would affect our military ``readiness'' and the Department of 
Defense's ability to successfully accomplish its mission. The short 
answer, based on how the United States interprets the treaty, is that 
it should not (although we will have to make some changes in our 
practices).
    Should the United States ratify the Child Soldiers Protocol, 
Article I would require us to ``take all feasible measures'' to ensure 
that members of our Armed Forces who have not attained the age of 
eighteen do not take ``a direct part in hostilities.''
    On a year-to-year basis, this restriction will affect approximately 
2,300 17-year-old servicemembers. That is ``drop in the bucket'' in 
terms of our total manpower, and the effect will be both negligible and 
manageable provided that we interpret the treaty in a common sense 
fashion.
    As discussed earlier, virtually all 17-year-olds who enter the U.S. 
Armed Forces are high school seniors and are placed in the Delayed 
Entry Program until after they earn their diploma. When they ship to 
basic training, only about 12,000 are still 17 years old. On average, 
initial training lasts from 4 to 6 months depending on the Service, and 
nearly all of the 17-year-olds turn 18 during this period. Only after 
this training is completed will a servicemember be considered fully 
trained and ready for his operational assignment.
    In other words, most of our recruits ``age out'' of the Protocol's 
Article I restriction before being deployed. We estimate that of the 
12,000 17-year-olds, only about 2,300 in any given year, or less than 
0.25% of the total U.S. enlisted force, are still seventeen by the time 
they complete their training--and most of these will turn 18 within one 
to three months. For Fiscal Year 2001, there were only 2,263 
individuals who were 17 when they reached their operational bases.
    For the remainder of time prior to their 18th birthday, these 17-
year-old servicemembers would be covered by the Protocol's Article I 
restriction. However, this should not pose a problem. The Services 
already have great leeway in how they assign troops to units, and how 
units are deployed on operational assignments. Further, we interpret 
the requirements of Article I in a way that makes most operational 
assignments no problem for 17-year-olds. Consistent with our proposed 
understanding, we interpret the phrase ``direct part in hostilities'' 
to mean ``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.''
    Thus fully trained and deployable 17-year-old servicemembers can 
perform any function ``in theater'' for combat units as long as they 
are not themselves taking actual action on the battlefield that is 
likely to cause harm to the enemy. In other words, we read the Protocol 
to apply specifically to 17-year-olds directly engaged in hostile 
activity on the battlefield. We do not interpret activities engaged in 
by combat support (or combat service support) units or the types of 
functions such units perform as falling within the scope of Article 1. 
This interpretation is consistent with the overall humanitarian concern 
the Protocol is meant to address (i.e., children being misused by 
waning factions in various civil and ethnic conflicts around the 
globe).
    In order to implement the Protocol, we will focus on when and where 
17-year-olds are deployed. Certainly we do not want the Protocol to 
have a negative effect upon morale and unit cohesion. Further, we need 
to be able to place 17-year-olds in the roles where they can make the 
greatest contribution to the military, rather than placing them on the 
basis of their age. By focusing on deployment, as opposed to how l7-
year-olds are assigned to units, we will avoid needlessly complicating 
our military readiness posture. I note that we are not obligated by the 
Protocol to take ``all measures'' to prevent 17-year-olds from taking 
part in hostilities, or even a ``direct'' part. We are obligated to 
take ``all feasible measures.''
    The word ``feasible'' is significant. Consistent with our proposed 
understanding, we interpret this to mean that U.S. military commanders 
are obligated to take ``those measures which are practical or 
practically possible taking into account all circumstances ruling at 
the time, including humanitarian and military considerations.'' We are 
not prepared to adopt an absolute standard. Flexibility and the rule of 
reason must apply.
    This flexibility is precisely why U.S. ratification of the Protocol 
would not adversely affect our operations in any theater, including 
Operation Enduring Freedom and our ongoing campaign against terrorism. 
For example, there are only seven 17-year-olds participating in 
Operation Enduring Freedom. They are Sailors. In fact, there are only a 
total of 42 17-year-olds serving outside the United States in total. 
Four of these servicemembers are in Korea, and we will continue to 
retain the ability to deploy 17-year-olds to the Korean Peninsula. 
Should the United States ratify the Protocol, these Servicemembers may 
perform military duties in support of all U.S. operations anywhere as 
long as we take all feasible measures to ensure that they do not take a 
direct part in hostilities.
    Given our presence in many countries around the globe, the wide 
range of missions that the military is called upon to fulfill, and the 
ongoing war against terrorism, we must recognize that unusual 
circumstances may arise requiring 17-year-old servicemembers to take a 
direct part in hostilities. For example, a 17-year-old could be part of 
a peacekeeping contingent that is unexpectedly fired upon. He may be a 
crewmember on a ship that unexpectedly comes under terrorist attack, or 
which is diverted into an area of operations to respond to an 
unforeseen contingency. We cannot be in a situation where a ship's 
captain, suddenly called upon to engage in combat operations, has to 
cull from the ship's crew all 17-year-olds and send them home or below 
decks. Similarly, we cannot allow a situation to arise, in the midst of 
a crisis such as that which occurred in Somalia, where the base 
commander--before sending an extraction team to help U.S. peacekeepers 
suddenly under attack--has to cull through units to remove 17-year-
olds.
    We should not put our field commanders in the position of 
constantly worrying about being ``second-guessed.'' Therefore, the 
presumption of the commander in the field should be that the 
headquarters unit issuing, or authorizing, the deployment of a 17-year-
old has already taken the Protocol's requirements into account. 
Concomitantly, we do not foresee changes to the Uniform Code of 
Military Justice which would affect field commanders, or lead to them 
being ``second-guessed.''
    Within these parameters, we believe the effect of the Child 
Soldiers Protocol upon our military capabilities will be manageable. 
Application of the Protocol in this fashion, as I said at the outset, 
is fundamental to our decision to support ratification.
                              OTHER ISSUES
    Finally, there are two other important views that the Department of 
Defense takes regarding the Protocol.
    First, as stated by Ambassador Southwick, although the Protocol is 
styled as a protocol to the Convention on the Rights of the Child, it 
will by its own terms operate as an independent multilateral agreement 
under international law. States may ratify the Protocol without 
becoming a party to the Convention on the Rights of the Child or being 
subject to its provisions. We intend to keep a ``firewall'' between the 
two treaties, and will work with our Department of State colleagues to 
ensure that--as information is provided under Article 8 to the 
Committee on the Rights of the Child--that distinction does not become 
blurred.
    Similarly, and consistent with the treaty transmittal package, we 
recommend that the U.S. make clear the nature of the obligation assumed 
under Article 3(1) of the Protocol by expressing an understanding to 
the effect that the United States views Article 3 as obligating States 
parties to raise the minimum age for voluntary recruitment into their 
national armed forces from the current international standard of age 
15, as set forth in the Rights of the Child Convention. Because the 
United States is not a party to the Convention, we must be clear that 
the formulation under Article 3 means ``15,'' and that the 
``principles'' and ``special protections'' to which the United States 
subscribes are delineated by the Child Soldiers Protocol, not by the 
Rights of the Child Convention. Consistent with international law, the 
Administration's recommended understanding makes it clear that, 
regardless of any future changes to Article 38 of the Rights of the 
Child, the obligations contained in Article 3 will remain as I have 
stated, unless a specific amendment to the Protocol has been adopted by 
the United States.
    Second, the United States will retain sole responsibility for 
ensuring that it adheres to this Protocol. Accordingly, no United 
States national will ever be subjected to the jurisdiction of any 
international tribunal, whether the International Criminal Court or an 
ad hoc arrangement, unless the United States has first explicitly 
recognized the jurisdiction of such a tribunal over these matters. As 
the Administration has made clear, it opposes the International 
Criminal Court and will not allow, under any circumstances, the ICC to 
claim jurisdiction over U.S. nationals.
    Finally, I reiterate that the United States intends to interpret 
key terms in the treaty, such as ``all feasible measures'' and ``direct 
part in hostilities'' in a straightforward, common sense fashion as set 
out in the Administration's transmittal documents.
                               CONCLUSION
    In conclusion, the Department of Defense supports the 
Administration's decision to proceed with ratification of the Child 
Soldiers Protocol. Utilizing the approach we have identified here, U.S. 
ratification of the Child Soldiers Protocol would not have an adverse 
impact on U.S. recruiting practices or force structure, nor would it 
impair the ability of our Armed Forces to execute their operational 
missions.
    Thank you.

                         Department of Defense


                      Selected Manpower Statistics

                            Fiscal Year 2000

  Prepared by Department of Defense, Washington Headquarters Service, 
          Directorate for Information, Operations and Reports


            Accession of 17-Year-Olds into the Armed Forces

    The attached excel workbook has the percent of 17-year-olds over 
time graphed next to the percent of high school diploma graduates 
(HSDGs) over time. The percent of 17-year-olds is graphed on the right 
axis; the percent of HSDG is graphed on the left axis. It also has a 
column showing the mean age.
    The mean age has not changed much over time--it's about 19.6. The 
highest mean age was 19.9. Right now, we're at 19.8. It is approaching 
it's high point because the Army contracted with a lot of high school 
graduates from the work force in FY 2000 and FY 2001. (In FY 2001, the 
Army struggled in the hard to fill months of February through May. In 
fact, the Army entered these months with almost half of the recruiting 
mission left to find. Therefore, they contracted with high school 
graduates who were in the work force and available to ship.)
    Since we access about 175,000 new people each year, we will 
probably enlist about 12,000 17-year-olds each year for the foreseeable 
future.


 Responses of Marshall S. Billingslea to Additional Questions for the 
               Record Submitted by Senator Barbara Boxer

    Question 1. Concretely, how will deployment procedures for 17-year-
olds under the protocol differ from the procedures that are now in 
place?

    Answer: The Protocol puts no geographical limits on where 17-year-
old servicemembers may be deployed. Similarly, it does not restrict the 
types of units to which 17-year-olds may be assigned. It simply 
requires that we take all feasible measures to ensure that 
servicemembers under 18 do not take a direct part in hostilities. 
Accordingly, should the United States ratify the Protocol, the Services 
will promulgate implementation plans, as approved by the Office of the 
Secretary of Defense, that both fulfill U.S. commitments under the 
Protocol and ensure there is no effect on each Service's military 
readiness.

    Question 2. What are the steps that the Department of Defense takes 
to ensure that the 17-year-old has a real ID and the parental consent 
is real?

    Answer: The Military Entrance Processing Command (MEPCOM) has 
programs that check to ensure that the date of birth entered by a 
recruiter falls into the age window outlined by Title 10, MEPCOM 
regulations, and other joint regulations. Additionally, each recruiter 
is required to obtain an original (or certified) government document 
that states an individual's age. Typically, this is an original birth 
certificate. If the individual is 17 years old, the recruiter is 
required to witness both parents' signatures. If a parent is divorced, 
then only one signature is required provided the custodial parent can 
produce the original (raised seal) divorce decree.
                                 ______
                                 

 Responses of Marshall S. Billingslea to Additional Questions for the 
                Record Submitted by Senator Jesse Helms

    Question 1. Mr. Billingslea, according to a variety of reports, the 
United States had 17-year-old soldiers participating in military 
operations during the Gulf War, Somalia, and the Balkans. Under this 
protocol, the United States could be held in violation if a 17-year-old 
participates in direct combat.
   How does the Pentagon propose to prevent such a possibility, 
        and what plans have the Services made?

    Answer. The Protocol does not ban the use of 17-year-olds in 
combat. The Protocol's ``all feasible measures'' standard recognizes 
that, over time, there are likely to be exceptional cases where, due to 
military, humanitarian or other considerations, 17-year-olds may take a 
direct part in hostilities. Several delegations made this clear in 
their statements made at the time of adoption of the Protocol.
    Further, as we have made clear, the Protocol only refers to a 17-
year-old taking a ``direct'' part in hostilities. It therefore is 
permissible to assign 17-year-olds to combat units, provided we then 
take feasible precautions to ensure that they do not engage in actions, 
on a battlefield, which cause direct harm to an enemy combatant.
    Finally, in the negotiations, no delegation objected to the U.S. 
interpretation of the term ``all feasible measures.'' We recognize the 
possibility that certain countries and nongovernmental organizations 
may choose to allege U.S. violations of the Protocol since we will 
implement our obligations in a manner that does not foreclose the 
assignment of 17-year-olds to combat units. However, the Protocol and 
the negotiating record make clear that the United States can implement 
the Protocol as described above. Furthermore, the Protocol contains no 
dispute settlement or other provision that would lead to the United 
States being ``held in violation'' of the Protocol.
    Accordingly, the Department of Defense will continue to assign 17-
year-olds (once they are fully trained) to combat units and to then 
deploy these personnel on a wide variety of operational assignments.
    Should the United States ratify the Protocol, the Services will 
promulgate implementation plans, as approved by the Secretary of 
Defense, that both fulfill U.S. commitments under the Protocol and 
ensure there is no adverse effect on each Service's military readiness.

    Ouestion 2. If the Military Services have not developed detailed 
plans to implement this Protocol, how can we assess whether 
implementation of the Protocol is manageable?

    Answer. The Protocol will be manageable if it is implemented in the 
fashion I described during testimony. The position set forth in my 
testimony is that the Department of Defense will implement the Protocol 
so that the presumption of the commander in the field will be that the 
headquarters unit issuing, or authorizing, the deployment of a 17-year-
old has already taken the Protocol's requirements into account. The 
Department of Defense will continue to review the Services' 
implementation plans to ensure they best support U.S. military 
readiness.
    More generally, implementation of the Protocol is manageable 
because of the limited number of 17-year-old servicemembers affected by 
its provisions. After an average of four to six months of initial 
training (depending upon the Service) only about 2,300 servicemembers 
are still 17 when they reach their operational bases. That number is 
less than one-quarter of one percent of our total enlisted strength. 
Most of these 2,300 servicemembers will turn 18 within one to three 
months of completing their training and ``age out'' of the Article 1 
restriction.
    Furthermore, we interpret the requirements of Article 1 in a way 
that makes most operational assignments no problem for 17-year-olds. 
Consistent with the Administration's proposed understanding, we 
interpret the phrase ``direct part in hostilities'' to mean ``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.'' Thus, fully trained and 
deployable 17-year-old servicemembers can perform any function in 
theater for combat units as long as all feasible efforts are made to 
ensure that they do not take a direct part in hostilities, such as 
actual action on the battlefield likely to cause harm to the enemy.

    Question 3. Mr. Billingslea, barring 17-year-olds from 
participation in military operations will mean that they must be pulled 
from their units in the event of a deployment.
   Have you assessed the impact of such a scenario on unit 
        morale and readiness?

    Answer. Such a scenario could have a harmful effect on morale and 
readiness. For this reason, the Department of Defense views 
implementation of the Protocol along the lines I have described in my 
testimony as essential. The Protocol does not bar 17-year-olds from 
participating in military operations or require that they be pulled 
from their units in the event of a deployment. It only requires that 
Parties ``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 not an absolute standard, but 
allows for a flexible implementation of the Protocol's provisions. As I 
stated in my response to the previous question, the Department of 
Defense will implement the Protocol so that the presumption of the 
commander in the field will be that the headquarters unit issuing, or 
authorizing, the deployment of a 17-year-old has already taken the 
Protocol's requirements into account. Implementing the Protocol in this 
manner, together with the small number of 17-year-old servicemembers 
affected by its terms, will permit us to comply with the Protocol's 
terms without affecting unit morale and readiness. It also will enable 
the commander in the field to perform his duties without fear of being 
``secondguessed.''

    Question 4. Mr. Billingslea, your prepared statement indicates that 
the Pentagon doesn't interpret activities by combat support personnel 
as falling within the scope of Article 1. Yet not surprisingly, some 
authors of the Protocol and Human Rights Groups believe they do.
   How will the United States defend itself against allegations 
        of violating the Protocol?

    Answer. The United States takes a backseat to no one in terms of 
our military professionalism. We do not use underage combatants, or 
engage in any of the morally reprehensible abuses which the Protocol is 
intended to address. Indeed, we were a driving force behind the 
creation of this document.
    The Department of State is best suited to answer for the Committee 
how it intends to respond to spurious accusations of noncompliance. We 
will work with the Department of State, and will insist that no 
international tribunal be allowed to assert or exercise jurisdiction 
over U.S. nationals in connection with this Protocol.
    Article 1 of the Protocol requires only that Parties take all 
feasible measures to ensure that servicemembers under 18 do not take a 
direct part in hostilities. This standard does not prohibit 17-year-old 
servicemembers from being forward deployed, from taking an indirect 
part in hostilities, or even from taking a direct part in hostilities 
under extenuating circumstances. The discussion pertaining to Article 1 
in the Administration's Article-by-Article Analysis submitted with the 
transmittal package makes it clear that U.S. negotiators, together with 
those from other countries, repeatedly and successfully rejected 
attempts to restrict these options, leaving intact the flexibility the 
U.S. military requires. The understandings recommended by the 
Administration in the transmittal package adequately describe the U.S. 
interpretation of what ``all feasible measures'' and ``a direct part in 
hostilities'' entail. The U.S. interpretations of these terms 
correspond with the meaning attributed to them under the law of armed 
conflict.
    Additionally, during the negotiations, the U.S. delegation made a 
statement about its understanding of the obligation under Article 1. No 
other delegation disputed the U.S. understanding. In fact, some other 
delegations expressed disappointment that the Protocol did not bar 
``indirect'' participation in hostilities and that the discretionary 
power granted to States through use of the term ``feasible measures'' 
weakened the Protocol. The Russian delegation acknowledged that since 
States were not required to prohibit participation, but only called on 
to take ``all feasible measures'' to prevent such participation, the 
Protocol left States open to the possibility in any emergency of 
involving persons under 18 years of age in hostilities.

    Question 5. Will the Protocol remain ``manageable'' if the United 
States becomes involved in a world war similar to World War II?

    Answer. The United States would be able, consistent with the 
Protocol, to recruit the servicemembers it would need to defend the 
United States, just as it did in World War II. Because the United 
States has never needed to draft below the age of 18, we do not view 
the Protocol's prohibition on conscription below the age of 18 as 
problematic.
    Regarding readiness, the Protocol's ``all feasible measures'' 
standard would allow the United States to have its 17-year-old 
servicemembers ``take a direct part in hostilities,'' if, in the 
judgement of the United States, there was no other practical option. We 
assess, in the event of a world war, that it may not be feasible to 
prohibit our 17-year-old servicemembers from engaging in combat.

    Question 6. If a unit commander, in the middle of a conflict, fails 
to remove a 17-year-old member of his unit from a combat situation, can 
the United States be held in violation of the protocol? Is it possible 
that the unit commander could be charged under the Uniform Code of 
Military Justice?

    Answer. We stress that the United States will not recognize the 
jurisdiction of any other nation or group over the United States or its 
nationals in terms of this Protocol's implementation. Therefore we will 
not agree that anyone outside of the United States can ``hold'' us in 
violation of the treaty, although other parties have the right to raise 
concerns about compliance. That said, the Protocol contains no dispute 
settlement, enforcement mechanism, or other provision that would lead 
to the United States being compelled to alter its implementation 
procedures.
    Regarding the unit commander, we do not intend to put our field 
commanders in a position where they must worry about being ``second-
guessed'' regarding their decisions to have 17-year-old servicemembers 
under their command take a direct part in hostilities when, in their 
judgement, the military situation requires it. Accordingly, the 
Department of Defense will implement the Protocol so that the 
presumption of the commander in the field will be that the headquarters 
unit issuing, or authorizing, the deployment of a 17-year-old has 
already taken the Protocol's requirements into account. As a result, we 
are not going to make any changes to the Uniform Code of Military 
Justice. We do not foresee charging unit commanders under the Uniform 
Code of Military Justice in order to ``second-guess'' their 
determinations regarding any 17-year-old members of their command.
    I would also like to reiterate one point I made during my testimony 
on 7 March 2002. No United States national will ever be subjected to 
the jurisdiction of any international tribunal, whether the 
International Criminal Court or an ad hoc arrangement, unless the 
United States has first explicitly recognized the jurisdiction of such 
a tribunal over the matter. As the Administration has made clear, it 
opposes the International Criminal Court and will not allow, under any 
circumstances, the ICC to claim jurisdiction over U.S. nationals.

    Question 7. Given that under the current practice in the United 
States, 17-year-olds must be volunteers, have the consent of their 
parents or guardians, and be fully informed of the duties involved with 
military service, why shouldn't these young men and women be permitted 
to fulfill their duties and serve in combat?

    Answer. The Administration has decided that the Protocol offers 
important foreign policy benefits, and that its affect on the U.S. 
military will be negligible. In light of the fact that the Services 
generally require attainment of a high school degree, and in light of 
the fact that any prospective soldier, sailor, airman or Marine is 
required to go through four to six months of training, the actual 
number of 17-year-olds affected by the treaty is fairly small. These 
17-year-olds generally have only one to three months left before they 
turn 18. Accordingly, we see that our current practices, together with 
the Protocol, give the Services sufficient leeway to assign 17-year-
olds, once they are fully trained, to their units and to then deploy 
these personnel on a wide variety of operational assignments, so long 
as we take ``all feasible measures'' to ensure these personnel do not 
take ``a direct part in hostilities.''

    Question 8. During the Kosovo war, some liberal human rights groups 
attempted to try American pilots for war crimes because of an 
accidental bombing of a civilian target. Would you agree that similar 
groups might charge the United States with violating this agreement if 
a 17-year-old soldier gets caught up in a combat situation?

    Answer. It is reasonable to expect some groups to make such 
allegations. As indicated under my response to question 4, we will 
aggressively respond to any such assertions. We will not be deterred 
from using the flexibility afforded by the treaty. The Department of 
Defense negotiated very hard to obtain these flexible legal 
formulations and our ability to support the Protocol is dependent upon 
our ability to interpret the treaty in the fashion I have described.
                                 ______
                                 

  Response of Marshall S. Billingslea to a Follow-up Question for the 
                Record Submitted by Senator Jesse Helms

    Question. Your answers to questions submitted previously do not 
address the impact of the Child Soldiers Protocol on the powers of U.S. 
state governors insofar as recruitment and employment of state militia 
or National Guard units are concerned. How extensively will entry into 
force of the Protocol interfere with and curtail these powers?

    Answer. Entry into force of the Child Soldiers Protocol would not 
interfere with or curtail the powers of state governors with respect to 
state militia or National Guard units, both of which are authorized by 
federal statute. We note that Article 4 of the Child Soldiers Protocol 
requiring States Parties to take all feasible measures to prevent the 
recruitment or use in hostilities of persons under the age of 18 years 
by ``armed groups that are distinct from the armed forces of a State'' 
pertains to ``non-governmental armed groups, often involved in non-
international armed conflicts.'' (See the article-by-article analysis 
accompanying the treaty, page 6.) U.S. law already prohibits insurgent 
activities by non-governmental actors (18 U.S.C. Sec. 2381). We do not 
interpret the term ``armed groups'' to refer to state militia or 
National Guard units.

    Senator Boxer. Thank you, Mr. Billingslea.
    We have been joined by Senator Paul Wellstone, who has been 
a longtime champion of children's rights, and he is going to 
give an opening statement after we conclude our panel.
    So, it is my pleasure to call on Mr. John Malcolm, Deputy 
Assistant Attorney General at the Justice Department's Criminal 
Division. Mr. Malcolm recently headed the U.S. Delegation to 
the Second World Congress on Commercial Exploitation of 
Children. Welcome.

    STATEMENT OF JOHN G. MALCOLM, DEPUTY ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                               DC

    Mr. Malcolm. Thank you. Madam Chairperson and members of 
the Committee, thank you for giving me this opportunity to 
testify on behalf of the Criminal Division of the Department of 
Justice in support of the Optional Protocol on the Sale of 
Children, Child Prostitution, and Child Pornography. The 
Department of Justice and the administration supports prompt 
ratification of the optional protocol which will serve to 
enhance the United States' position as a leader in the fight 
against the exploitation and abuse of children worldwide.
    Madam Chairperson, as you just stated, this past December, 
I had the pleasure and privilege of heading the United States' 
Delegation to the Second World Congress on Commercial Sexual 
Exploitation of Children in Yokohama, Japan. During that event, 
my colleagues and I spoke with many representatives from other 
countries and from various non-governmental organizations, 
based both here and abroad, including women and children who 
had been victims themselves of the cruelest forms of 
exploitation. This experience confirmed for me the importance 
of ratifying this optional protocol so that we can play our 
part in addressing this international tragedy.
    In 1999, the Senate ratified the International Labor 
Organization Convention No. 182 on the Prohibition and 
Immediate Action for the Elimination of the Worst Forms of 
Children Labor, which included the sale and use of children in 
labor, prostitution, and the production of pornography. This 
optional protocol before you today builds upon this important 
cornerstone by addressing the sale of children for these and 
other purposes, by raising international standards to which all 
nations must adhere, including requiring that parties provide 
protection to children up to the age of 18, and by requiring 
that offenses be treated as criminal acts which merit serious 
punishment. In short, along with ILO No. 182, the optional 
protocol provides a common language, mission, and strategy to 
accomplish our commitment to eradicate child exploitation and 
related illicit practices around the world.
    I am pleased and proud to say that, with respect to the new 
international standards and obligations called for by this 
optional protocol, the United States is already an adherent, 
subject to the understandings and declarations contained in the 
administration's treaty ratification package. No implementing 
legislation will be required with respect to ratifying this 
optional protocol because U.S. law meets and in many cases 
exceeds the standards of the protocol. In the United States, 
Federal and State laws uniformly prohibit child prostitution, 
all activities associated with child pornography, and the sale 
of children for sexual exploitation. United States law 
similarly prohibits the sale of children for the purposes of 
forced labor or the transfer of organs for profit, as well as 
the sale of children via improperly induced adoptions that were 
knowingly and willfully done.
    Federal and State laws have also long recognized the 
special interests and needs of child victims and witnesses and 
have provided varying measures of support and protection to 
take account of these interests and needs. In addition, since 
the time that the article-by-article analysis that accompanies 
this protocol was prepared, the United States has taken 
additional and important steps that will enhance its ability to 
address the core issues at the heart of the protocol. In 2000, 
Congress enacted and the President signed into law the Victims 
of Trafficking and Violence Protection Act which created 
several new crimes of relevance to this protocol and which 
provides support services and other forms of relief to victims 
of severe forms of trafficking and exploitation, as well as the 
Intercountry Adoption Act which establishes oversight, 
standards, and accreditation procedures for adoption agencies 
for intercountry adoptions.
    The protocol also contains important provisions concerning 
international cooperation. Our law enforcement agencies already 
investigate international trafficking cases with other 
countries and engage in global child pornography 
investigations. The protocol provides useful cooperation and 
assistance mechanisms among nations that are parties to the 
protocol, including provisions covering such diverse issues as 
extradition, mutual legal assistance, and appropriate asset 
confiscation. All of these provisions are comparable to and 
consonant with forms of cooperation currently provided for in 
various law enforcement agreements to which the United States 
is a party. This protocol will enhance our efforts by 
encouraging reciprocal efforts by other nations.
    The United States is understandably proud of its position 
as a world leader in the fight to protect children from severe 
forms of exploitation. Ratification of the Optional Protocol on 
the Sale of Children, Child Prostitution, and Child Pornography 
will better enable the United States and the rest of the world 
to fight against those who would deprive children of their 
innocence by transferring them to people who have no lawful 
right to custody, by subjecting them to extreme forms of labor, 
and by subjecting them to the horrors of child prostitution and 
child pornography.
    Madam Chairperson, that concludes my statement. I would 
like to thank you and the Committee again for soliciting the 
Department's views on these important issues and for allowing 
me to express them today through my testimony here. And I would 
be pleased to answer any questions that you might have.
    [The prepared statement of Mr. Malcolm follows:]

   Prepared Statement of John G. Malcolm, Deputy Assistant Attorney 
           General, Criminal Division, Department of Justice

    Madam Chairperson and Members of the Committee, thank you for 
giving me this opportunity to testify on behalf of the Criminal 
Division of the Department of Justice in support of the Optional 
Protocol on the Sale of Children, Child Prostitution, and Child 
Pornography. The Department of Justice supports prompt ratification of 
the Optional Protocol, which will serve to enhance the United States' 
position as a leader in the fight against the exploitation and abuse of 
children worldwide.
    This past December, I had the privilege of heading the United 
States' Delegation to the Second World Congress on Commercial Sexual 
Exploitation of Children in Yokohama, Japan. During the event, my 
colleagues and I spoke with many representatives from other countries 
and from various non-governmental organizations, based here and abroad, 
including women and children who had been victims themselves of the 
cruelest forms of exploitation. This experience confirmed for me the 
importance of ratifying this Optional Protocol, so that we can play our 
part in addressing this international tragedy.
    In 1999, the Senate ratified International Labor Organization 
Convention No. 182 on the Prohibition and Immediate Action for the 
Elimination of the Worst Forms of Child Labor, which included the sale 
and use of children in labor, prostitution and the production of 
pornography. The Optional Protocol before you today builds upon this 
important cornerstone by addressing the sale of children for these and 
other purposes, by raising international standards to which all nations 
must adhere, including requiring that State Parties provide protection 
to children up to the age of 18, and by requiring that offenses be 
treated as criminal acts that merit serious punishment. In short, along 
with ILO #182, the Optional Protocol provides a common language, 
mission, and strategy to accomplish our commitment to eradicate child 
exploitation and related illicit practices around the world.
    I am pleased and proud to say that, with respect to the new 
international standards and obligations called for by this Optional 
Protocol, the United States is already an adherent, subject to the 
understandings and declaration contained in the Administration's treaty 
ratification package. No implementing legislation will be required with 
respect to ratifying this Optional Protocol, because current U.S. laws 
meet, and in many cases exceed, the standards of the Protocol. In the 
United States, federal and state laws uniformly prohibit child 
prostitution, all activities associated with child pornography, and the 
sale of children for sexual exploitation. United States law similarly 
prohibits the sale of children for the purpose of forced labor or for 
the transfer of organs for profit, as well as the sale of children via 
improperly-induced adoptions that were knowingly and willfully done.
    Federal and state laws have also long recognized the special 
interests and needs of child victims and witnesses and have provided 
varying measures of support and protection to take account of those 
interests and needs. In addition, since the time that the Article-by-
Article Analysis that accompanies this Protocol was prepared, the 
United States has taken additional and important steps that will 
enhance its ability to address the core issues at the heart of the 
Protocol. In 2000, Congress enacted the Victims of Trafficking and 
Violence Protection Act, which created several new crimes of relevance 
to this Protocol and which provides support services and other forms of 
relief to victims of severe forms of trafficking and exploitation. 
Congress also enacted the Intercountry Adoption Act of 2000, which 
establishes oversight, standards, and accreditation procedures for 
adoption agencies for intercountry adoptions.
    The Protocol also contains important provisions concerning 
international cooperation. Our law enforcement agencies already 
investigate international trafficking cases with other countries and 
engage in global child pornography investigations. The Protocol 
provides useful cooperation and assistance mechanisms among nations 
that are parties to the Protocol, including provisions covering such 
diverse issues as extradition, mutual legal assistance, and appropriate 
asset confiscation. All of these provisions are comparable to and 
consonant with forms of cooperation currently provided for in various 
law enforcement agreements to which the United States is a party. This 
Protocol will enhance our efforts by encouraging reciprocal efforts by 
other nations.
    The United States is understandably proud of its position as a 
world leader in the fight to protect children from severe forms of 
exploitation. Ratification of the Optional Protocol on the Sale of 
Children, Child Prostitution and Child Pornography will better enable 
the United States and the rest of the world to fight against those who 
would deprive children of their innocence by transferring them to 
people who have no lawful right to custody, by subjecting them to 
extreme forms of labor, by subjecting them to the horrors of child 
prostitution and child pornography.
    Madame Chairperson, that concludes my prepared statement. I would 
like to thank you and the Committee again for soliciting the 
Department's views on these important issues and for allowing me to 
express them through my testimony here today. I would be pleased to 
answer any questions that you may have.
                                 ______
                                 

   Responses of John G. Malcolm, Deputy Assistant Attorney General, 
 Criminal Division, Department of Justice, to Additional Questions for 
              the Record Submitted by Senator Jesse Helms

    Question 1. Mr. Malcolm, during the Kosovo War, some liberal human 
rights groups attempted to try American pilots for war crimes because 
of an accidental bombing of a civilian target. Would you agree that 
similar groups might charge the United States with violating the Child 
Soldiers Protocol if a 17-year-old soldiers gets caught up in a combat 
situation.?

    Answer. The Department of Justice concurs with the response to the 
identical question provided by the Department of Defense. The Protocol 
does not contain any provision that would permit states to be 
``charged'' with ``violating'' the Protocol. Nor does the Protocol 
authorize the trial of any person before an international criminal 
tribunal for a violation of the Protocol or include any mechanism for 
cooperation in prosecution before international tribunals.

    Question 2. Mr. Malcolm, in his testimony Mr. Billingslea 
emphasized the importance of the word ``feasible'' when stating the 
responsibility of commanders to take ``all feasible measures'' to keep 
17-year-old soldiers out of combat. I am aware that some proponents of 
the Protocol have a different understanding of what is ``feasible.'' If 
the United States defines ``feasible'' differently than others, will 
the United States be subject to charges that it violated the Protocol 
or will an American military commander be open to second-guessing after 
the fact.

    Answer. The Department of Justice concurs with the response to a 
similar question posed to the Department of Defense concerning use of 
the term ``feasible.'' The Protocol does not contain any provision that 
would permit states to be ``charged'' with ``violating'' the protocol. 
Nor does the Protocol authorize the trial of any person before an 
international criminal tribunal for a violation of the Protocol or 
include any mechanism for cooperation in prosecution before 
international tribunals.

    Question 3. In Article 7 of the Protocol, it states that ``States 
Parties shall cooperate in the implementation of the present Protocol, 
including in the prevention of any activity contrary to the Protocol 
and in the rehabilitation and social reintegration of persons who are 
victims of acts contrary to this Protocol, including through technical 
cooperation and financial assistance.'' Furthermore, part two of this 
article states that ``States Parties in a position to do so shall 
provide such assistance through existing multilateral, bilateral or 
other programes. . . .'' I read this article to incur a legal 
obligation by the United States to provide financial and other 
assistance to countries that are plagued by the conscription of child 
soldiers. Do you agree, and if so, how much do you think this will cost 
the U.S. taxpayer to live up to our obligations under this agreement?

    Answer. We concur with the analysis provided by the Department of 
State to the identical question. The Protocol does not create any 
financial obligation for U.S. taxpayers since it does not require a 
specific type or amount of assistance.

    Question 4. Article 8 of this Protocol requires States Parties to 
provide reports to the Committee on the Rights of the Child on their 
implementation under this Protocol, and guarantees the Committee on the 
Rights of the Child the right to request additional information from 
States Parties. As you know, the United States does not recognize the 
Committee on the Rights of the Child. Yet, the rights and obligations 
outlined in this article seem to require U.S. recognition of not only 
the Committee, but also the legitimacy of it and its activities. Would 
you agree?

    Answer. No. We concur with the response provided by the Department 
of State to the identical question.

    Senator Boxer. Thank you very much, Mr. Malcolm.
    Senator Wellstone, you are welcome to make an opening 
statement and then we will get to the questions.
    Senator Wellstone. Thank you, Madam Chair. This will be 
brief I say to both my colleagues. And one of the reasons I 
appreciate the opportunity is that I have to be in and out 
because we are actually going to have an oversight hearing 
today on the trafficking bill this afternoon with Senator 
Brownback.
    I want to thank Senator Boxer over here, the chair, for her 
good work. I am thanking you, Senator Boxer. I want to make 
sure you are attentive to my compliment.
    And I actually think this is a really exciting day because 
the prospect that these protocols will be soon ratified by the 
U.S. Senate is just a huge step forward in our world, both to 
end the use of children as soldiers and the sexual exploitation 
of children.
    On the Optional Protocol on the Sale of Children, again I 
think this fits in with the human rights legislation that 
fights trafficking that we are going to be focusing on this 
afternoon, and I would thank all of you for your work.
    And on the Child Soldiers Protocol, a couple of things. 
Both Michael Southwick and Michael Dennis, who is sitting 
there, put an unbelievable effort into this, and you deserve a 
tremendous amount of credit for all of your fine work. It is 
much, much appreciated.
    Really, I am just spending more of my time thanking people.
    Jo Becker at Human Rights Watch, Senator Boxer and Senator 
Helms, when it comes to the whole question of child soldiers, 
has just been there for years now. In the very early days, I 
remember she brought by Angelina Atyam. His daughter Charlotte 
was abducted by the Lord's Resistance Army in Uganda. She was 
14 years of age. She was impregnated by a rebel commander, and 
last year she gave birth. The name of the child is God Knows. 
She named her child God Knows. She remains in captivity. And I 
just think Jo Becker's passionate advocacy on behalf of mothers 
and also children has just been unbelievable. I think that is 
one of the reasons there has been such domestic and 
international support.
    I think the only other thing that I would say is that on 
the Child Soldiers Protocol, there are a couple of amendments 
that I have introduced over the years, one of which passed, 
calling on the U.S. Government to take action on this human 
rights abuse and to sign the Child Soldiers Protocol. I think 
after much struggle, we have signed the protocols. The Bush 
administration has signaled its support for ratification, and I 
am just very positive about the direction we are going in.
    It is good to see you chairing this and it is good to see 
Senator Helms here.
    Marshall, I remember many of our negotiations as well on 
these matters.
    So, hey, I am in a good mood here today. This is a great 
gathering.
    Thank you, everyone.
    Senator Boxer. Thank you so much, Senator.
    We will be hearing from Jo Becker on our next panel, along 
with RADM. Eugene Carroll, Jr. and RADM. Timothy Fanning, Jr. 
So, we have one more panel to go.
    I only basically have one question for you, Mr. 
Billingslea. I appreciated how much effort you put into 
answering Senator Helms' point, does this in any way 
disadvantage us? I just want to make sure I understand in a 
nutshell what you said, and that is that essentially the 
protocol is in step with our current policy. There are a few 
concerns. You explained that, I thought, very well by giving a 
good example. What you said was that the protocol requires you 
to take all feasible steps. It does not say do the impossible 
or you are going to be held responsible. It says take all 
feasible steps, and you interpret that in the following way. 
And tell me if I am not saying it right.
    That when there is a 17-year-old, he or she would come into 
the military with a signed authorization from the parents and 
that they would be placed in a situation that would not be a 
situation where there was combat. They would not be put into 
combat. If they are put on a ship or somewhere and there 
suddenly is an attack, you would say you have taken all 
feasible measures. You are not going to suddenly put 
requirements on the commander to not defend the ship or 
wherever this incident occurs.
    So, I certainly support that approach because I think that 
is what we should be doing.
    I have one question. I am working very hard on the anti-
terrorism measures on the home front here dealing with false 
ID's. As we know, kids can get false ID's. I am stunned to see, 
Senator Helms, how easily these false ID's can be obtained. It 
is a stunning thing, and it is very difficult. You need special 
machines. Again, this falls under the take all feasible steps. 
But is the military very careful, when a 17-year-old comes 
forward, to check the ID and also to check the signatures of 
the parents? Are we taking those steps normally to ensure that 
we are not getting a 15-year-old or a 16-year-old?
    Mr. Billingslea. Senator, we have a variety of requirements 
that are levied at the recruiting office level to make sure 
that the parental consent forms that are being signed are 
truthful and accurate. As in all things, you have to just be 
vigilant to make sure.
    Senator Boxer. I would love to have something in the next 
week, what are the steps that the Department of Defense takes 
to ensure that the 17-year-old has a real ID and the parental 
consent is real.
    Mr. Billingslea. May I take that for the record?
    [The following answer was subsequently provided.]

    The Military Entrance Processing Command (MEPCOM) has programs that 
check to ensure that the date of birth entered by a recruiter falls 
into the age window outlined by Title 10, MEPCOM regulations, and other 
joint regulations. Additionally, each recruiter is required to obtain 
an original (or certified) government document that states an 
individual's age. Typically, this is an original birth certificate. If 
the individual is 17 years old, the recruiter is required to witness 
both parents' signatures. If a parent is divorced, then only one 
signature is required provided the custodial parent can produce the 
original (raised seal) divorce decree.

    Senator Boxer. I am interested for many reasons because I 
am attacking this issue in a lot of other ways. So, I would be 
very interested to see what you are doing. It might be a way to 
even beef that up because the new high tech equipment they have 
for just swiping a license is remarkable, and it 
instantaneously tells you if it is real or not. I do not 
believe this is a big problem for our military, but as I say, 
it is just of interest.
    So, does what I said fit with what you said, that you take 
all feasible steps, but you are not going to tie the hands of 
someone who has been attacked?
    Mr. Billingslea. I think that is right. You used the words 
not going to put them in combat. We even have a bit of a 
narrower look-in onto that term. The actual phraseology we are 
using and what the treaty uses is a ``direct part in 
hostilities.''
    Senator Boxer. Direct part in hostilities.
    Mr. Billingslea. As the understanding that we have supplied 
in the transmittal package from 2000 makes clear, we interpret 
that to mean literally that we cannot have 17-year-olds taking 
an action where there is a direct causal link between the 
action they take and harm to the enemy. So, it is very much a 
battlefield construct. We do not interpret it as prohibiting 
deployment into theater where combat operations may be 
occurring, as long as the 17-year-old is not on the battlefield 
taking this kind of action.
    Senator Boxer. In other words, in a backup type of 
situation or administrative support.
    Mr. Billingslea. We can even assign them to combat units, 
as long as we are not throwing the 17-year-old directly onto 
the battlefield where they as the shooter are engaging in 
hostilities.
    Senator Boxer. So, they do go into a theater where there is 
combat, but they do not go into a battlefield.
    Mr. Billingslea. That is what the assignment and deployment 
process needs to be vigilant about. Now, ``feasible'' is a very 
elastic term that we want to resist trying to pin down because 
we cannot have a one-size-fits-all kind of situation.
    Senator Boxer. But that is what we do today. This is our 
policy today. We do not put a 17-year-old into a situation 
where he or she is taking part in direct hostilities.
    Mr. Billingslea. The way I am trying to frame it up and the 
position we are taking on interpreting this is designed to 
ensure that we do not really change, in any way that harms our 
readiness posture, current practice. We are going to have to 
make some changes because this is a new treaty requirement, but 
the way we want to make the changes, to cause little or no 
impact on readiness, is at a level above the field commander. 
That field commander needs to be under the presumption, when he 
has got a 17-year-old that is given to him, that the higher-ups 
have thought this through and they understand and they have 
factored the protocol's legal requirements. So, we are going to 
make sure it is done not at a field commander level but higher 
up the chain.
    Senator Boxer. And my last point is that you are working 
with Senators Helms and Biden, it is my understanding, so that 
when we do bring this to the floor, which I am hopeful will be 
soon, all these questions will be resolved in the language that 
goes along with our ratification. Is that your understanding?
    Mr. Billingslea. What I would say is that we think that the 
understandings and declarations that have already been supplied 
in the transmittal package, where President Clinton asked the 
Senate to give advice and consent on the basis of these 
understandings and to include the understandings and 
declarations in the resolution of ratification, ought to do it. 
What I have supplied you with in addition is how we interpret 
what is behind those words that we have given you in the 
transmittal package.
    Senator Boxer. I understand. So, if a Senator wanted to 
have those as part of our record, we could do that. We could 
put that further explanation into the record.
    Mr. Billingslea. That is why I am here, is to give you the 
interpretation behind the wording. I need to be clear. I am not 
here asking for any additional understandings.
    Senator Boxer. I appreciate that greatly because that 
really helps us. I am just talking about some colloquies. I 
know that Senator Helms has some concerns. He is going to talk 
in a minute. I believe you have certainly addressed those. So, 
just because I am so interested in getting this done, it may be 
a colloquy that might be placed into the Congressional Record, 
not changing in any way the understandings, the official 
agreements, but just some colloquies of understanding that I 
hope you will be willing to help us with if we need to do that.
    Mr. Billingslea. We are absolutely ready to work with you 
in any way.
    Senator Boxer. I feel very comfortable with what you said, 
and I want to applaud again the administration for really 
bringing this over the finish line. Well, it is not quite 
there, but bringing it very close to the finish line.
    Senator Helms, do you have any questions?
    Senator Helms. Yes, ma'am. One.
    Mr. Ambassador, are not most of these--what do you call 
them--children soldiers enlisted, so to speak, by private 
groups? Is that not correct in most of these countries?
    Ambassador Southwick. Yes.
    Senator Helms. Well, I would be interested in your opinion. 
How will this protocol help that situation where the government 
is not involved?
    Ambassador Southwick. Well, thank you, Senator Helms. I 
think that question really strikes at the heart of what this 
whole protocol is about because this protocol to a very large 
extent is not about what the United States does or what Great 
Britain does.
    Senator Helms. Right.
    Ambassador Southwick. It is what happens in the Sierra 
Leones of the world, the Angolas of the world, the Ugandas of 
the world. And in those situations, you have what are called 
non-state actors who recruit children, and that is what has 
been a big phenomenon over the last 10 years, especially in 
Africa. This treaty criminalizes the recruitment of children 
under 18 for that purpose, and therefore there is some 
accountability for this.
    I think the main thing that this treaty does is it creates 
a standard, which is readily understandable, that 18 is the 
breakpoint for these non-state actors. I am not talking about 
the United States. I am talking about these armed groups that 
you see in developing countries sometimes. And with a clear 
standard, replacing what has been kind of murky out there, it 
is easy for civil society, governments, the media, NGO's 
working in the field to put the spotlight on what those 
practices are. As I said in my statement, how effective this is 
going to be really depends on what people do with it once it 
comes into force.
    Senator Helms. You are exactly right. We would hope that 
all the countries would have this same kind of First Lady that 
Uganda has. You know what she has done in the case of AIDS. She 
has cut it, Marshall, in half with a private effort by herself. 
She was here a week or 10 days ago, and I had lunch with her. 
It is amazing what one person dedicated can do in a country 
like that.
    In the interest of time, I am going to file some written 
questions. But I thank all three of you, for coming, and I 
would like to sit down and talk with you sometime, for example.
    Mr. Malcolm. I would be delighted, Senator.
    Senator Boxer. Thank you, Senator.
    I am going to also take the rest of my questions and put 
them in the record and hope you will get back to me.
    I will ask unanimous consent to place into the record a 
document from the Department of Defense that outlines the 
active duty 17-year-olds that are in a theater, but not engaged 
in hostilities. I believe, Mr. Billingslea, these came from 
you.
    Mr. Billingslea. Yes, ma'am. We got those to your staff the 
other night.
    Senator Boxer. It is very helpful. It shows, just for 
people to know, a total of 20 17-year-olds in active duty not 
engaged in hostilities. In the Republic of Korea, there are 
four. In the Balkans/Kuwait, 9, and Enduring Freedom on ships, 
there are 7, for a total of 20. So, I place that in the 
record.\1\
---------------------------------------------------------------------------
    \1\ See Mr. Billingslea's prepared statement on page 33.
---------------------------------------------------------------------------
    We really want to thank you all. I must say that I feel, as 
Senator Wellstone does, that this is an exciting day. I think 
from listening to my friend, Senator Helms, it looks like we 
are on our way to moving forward. So, thank you for all your 
work.
    Senator Helms. Madam Chairman.
    Senator Boxer. Yes, please.
    Senator Helms. Before we leave this, I feel a little bit on 
the spot because I went to the recruiting office on the 
afternoon of Pearl Harbor, December 7, 1941.
    Senator Boxer. And how old were you?
    Senator Helms. I was examined and I passed the examination 
with one exception, my hearing. I finally, thanks to a chief 
petty officer, got a waiver, but I could not go to sea. But we 
were taking 16-year-olds in the United States Navy, and a lot 
of them went into combat. So, we may be talking about ourselves 
to some extent.
    All right. Thank you.
    Senator Boxer. Thank you so much.
    I say to the first panel, you may stay if you like to hear 
the next panel.
    I want to now welcome the second panel: Ms. Jo Becker, 
Children's Rights Advocacy Director, Human Rights Watch; RADM. 
Eugene J. Carroll, Jr., USN, (Ret.), Vice President Emeritus, 
Center for Defense Information; and RADM. Timothy O. Fanning, 
Jr., USNR, (Ret.), National President of the Navy League of the 
United States. We are very honored to have the three of you 
here.
    Again, I want to say to our first panel, thank you very 
much. If you could leave quietly so we could get going because 
we are facing a vote.
    We are going to start with our second panel. We know that 
Senator Wellstone has pointed out your advocacy, Ms. Becker, 
over the years. You are the Advocacy Director for the 
Children's Rights Division at Human Rights Watch, and you serve 
on the Steering Committee of the U.S. Campaign to Stop the Use 
of Child Soldiers. From 1998 until 2001, you were the chair of 
the Steering Committee for the International Coalition to Stop 
the Use of Child Soldiers.
    Admiral Gene Carroll serves as Vice President Emeritus of 
the nonpartisan Center for Defense Information in Washington. 
Admiral Carroll served in the Navy for over 30 years, rising to 
the rank of Rear Admiral.
    And Admiral Timothy O. Fanning, Jr., is the National 
President of the Navy League. The Navy League of the United 
States was founded in 1902. It is a civilian organization 
dedicated to supporting our naval and maritime forces.
    Jo Becker, I want to thank you for being here. I want you 
to know that years ago this issue was brought to my attention 
by a very young woman in California, and like so many of us--
there are so many issues--we did not have any idea as to the 
extent of the use of child soldiers around the world. So, you 
have made a tremendous contribution. We welcome you.

    STATEMENT OF MS. JO BECKER, CHILDREN'S RIGHTS ADVOCACY 
           DIRECTOR, HUMAN RIGHTS WATCH, NEW YORK, NY

    Ms. Becker. Thank you very much, Madam Chair. It is a real 
privilege to be here this morning to address U.S. ratification 
of the two protocols to the Convention on the Rights of the 
Child.
    I was also very gratified to hear the support by the 
representatives of the administration this morning for both 
protocols and from both yourself and Senator Wellstone and 
Senator Helms.
    I would also like to just express my appreciation for your 
kind words and those of Senator Wellstone.
    I would like to speak briefly this morning to the sexual 
exploitation and sale of children and then devote the bulk of 
my remarks to the issue of child soldiers.
    Every year millions of children enter the commercial sex 
trade or are trafficked into slave-like practices. The State 
Department estimates that every year 50,000 to 100,000 women 
and children are trafficked just into the United States. About 
half are trafficked into bonded sweatshop labor or domestic 
servitude and the rest into the sex industry. The most 
vulnerable to these practices include children who are poor, 
who are abandoned, orphaned, or displaced from their homes. 
Most of these children are girls who are often promised good 
jobs, only to find themselves working in brothels or 
sweatshops. They often have no control over the nature of their 
place or work. They have been deceived about what money they 
may receive and are subject to slave-like conditions and 
serious physical abuse. They are often held in debt bondage, 
raped, and subjected to torture, beatings, and exposure to HIV.
    Human Rights Watch has investigated the trafficking of 
women and girls from Nepal to India, from Bangladesh to 
Pakistan, from Burma to Thailand, and from Thailand to Japan. 
In Nepal, we found that it was common for girls to be lured 
from remote hill villages and from poor communities by 
recruiters who promised them jobs or marriage. Sometimes they 
were sold for as little as $4 to brokers who would then, in 
turn, sell them to brothels in India for $500 or $1,000, and 
this then became an amount of money the girl was forced to work 
off. Many of these girls ended up in Bombay where an estimated 
20,000 brothel workers are under the age of 18 and half of 
these are thought to be infected with HIV.
    Children do not need to be trafficked to be exploited 
within the sex industry. Poor children living on the streets 
may enter the sex trade to earn more money than they can from 
other forms of street labor, to finance a drug habit, or simply 
to be able to eat. Pimps prey on these children and exploit 
their vulnerability for financial gain.
    The recruitment of children as soldiers is another 
abhorrent abuse against children. As we have heard, there are 
currently 300,000 children fighting in more than 30 conflicts 
around the world. While this problem may seem very distant to 
some, on January 4 of this year, it hit very close to home when 
U.S. Army Sergeant Nathan Ross Chapman became the first U.S. 
military casualty killed in Afghanistan from hostile fire, 
after reportedly being shot by a 14-year-old boy.
    Madam Chair, you noted the use of child soldiers in 
Afghanistan and we have seen youngsters as young as 12 
recruited by the Northern Alliance, and the Taliban has 
actively recruited children from madrassas, or religious 
schools, in Pakistan.
    And in other parts of the world, the ranks of child 
soldiers include children as young as 8 recruited into the 
paramilitaries in Colombia, teenaged boys taken by force from 
their villages in Burma to serve in the national army, and 
young girls who are kidnaped by the Lord's Resistance Army, 
like Charlotte, the young girl that Senator Wellstone 
described.
    I would like to note, in response to Senator Helms' 
question about who is responsible for the use of these 
children, that it is true that the most notorious cases that we 
see in the media and on the news are those of the Revolutionary 
United Front recruiting children in Sierra Leone or the Lord's 
Resistance Army or the infamous twins from one of the ethnic 
groups in Thailand. But in fact, a significant number of child 
soldiers recruited around the world are recruited by government 
armed forces. In fact, our belief is that the Government of 
Burma is itself the single largest user of child soldiers in 
the world and probably has upwards of 50,000 children in its 
own army. We have also seen children recruited by the 
Government of Ethiopia in its war against Eritrea, and Human 
Rights Watch has recently documented the complicity of the 
Governments of Uganda and Rwanda in recruiting children that 
fight in conflict in the DRC.
    Ishmael Beth is a former child soldier from Sierra Leone 
who had hoped to be here to testify this morning. He was 
recruited when he was 13 years old. And I would like to just 
share one recollection from him. He said, ``I vividly remember 
the very first day that I was in combat. I was recruited with 
the kids that were 8 years old, 9 years old. They were so small 
some of them couldn't even carry the AK-47's they were given so 
they had to drag it. I was in an ambush and bullets were flying 
back and forth, people were shooting. I didn't want to pull the 
trigger at all but when you watch kids being shot and killed 
and dying and crying and their blood spilling all over your 
face you just move beyond, something just pushed you and you 
start to pull the trigger.''
    Ishmael was one of the lucky ones. After 3 years in the 
war, he was placed into a rehabilitation program where he 
received counseling and was assisted to go back to school. He 
is currently studying at a college in Ohio. But for many other 
children, the future is desperately bleak. They have been 
robbed of their childhood, of their education. They have 
witnessed and participated in horrific violence, and it is hard 
to imagine how they may ever become productive members of 
civilian society.
    As international attention to these horrific abuses against 
children has grown, so has international action. We have heard 
about the ILO Convention 182 which defined the forced 
recruitment of children for use in armed conflict as one of the 
worst forms of child labor. There have been other actions taken 
by the Security Council and by regional organizations, but of 
most significance is the adoption of the Optional Protocol on 
Children in Armed Conflict.
    There are many reasons why the United States should ratify 
this protocol, and I want to conclude by just focusing on five.
    First of all, the protocol has already made a difference. 
It is true that international treaties are not always 
respected, but already we have seen results from the protocol 
and the increased attention to this issue. Even before the 
negotiations on the protocol were complete, some countries 
began to change their practices. Colombia which, as recently as 
3 years ago, had more than 15,000 children in its national 
armed forces, began to demobilize and currently has no children 
under the age of 18. In June of 2000, President Kabila of the 
Democratic Republic of Congo issued a decree calling for the 
demobilization of children from his army and is now cooperating 
with UNICEF to make that happen. And other countries such as 
Portugal, South Africa, and Italy have adopted legislation to 
raise the age of recruitment into their armed forces.
    Second, we have also seen that the protocol can, in fact, 
influence non-governmental forces. In the last 2 years, we have 
seen large scale demobilization of children, even from some 
rebel groups. Last February, over 2,500 children between the 
ages of 13 and 18 were demobilized from the Sudan People's 
Liberation Army in southern Sudan. From May to November of last 
year, over 1,500 children were demobilized from the 
Revolutionary United Front in Sierra Leone. In these and in 
other cases, we have seen that non-state forces can be 
persuaded that complying with international standards can 
enhance their own credibility.
    My third point is that the protocol has the support of the 
American public. In 1999, there was an opinion poll that asked 
Americans at what age is a person mature enough to be a 
combatant, and 93 percent of Americans responded that 
combatants should be at least 18. There is a broad range of 
non-governmental organizations in this country that strongly 
support the protocol, including the American Bar Association, 
the American Academy of Pediatrics, Children's Defense Fund, 
National Council of Churches, and the Vietnam Veterans of 
America Foundation.
    Fourth, I want to point out that U.S. support for the Child 
Soldiers Protocol can also protect U.S. soldiers. Army Sergeant 
Chapman, who I referred to before, was not the first U.S. 
soldier to encounter a child soldier in a combat situation. 
Many U.S. soldiers faced armed children during the Vietnam War 
and had to make the choice, Madam Chair, that you referred to 
about whether or not to defend themselves or possibly take the 
life of a child. Children are often used as soldiers because 
they are more easily able to approach enemy forces without 
suspicion and are often more willing to undertake dangerous 
missions than their adult counterparts. And as a result, U.S. 
soldiers may be at increased risk in conflicts where children 
are being used.
    And then finally, the need for U.S. leadership. The 
importance of U.S. leadership on this issue cannot be 
underestimated. By ratifying the optional protocol, the United 
States will be in a very strong position to use its 
considerable political and military influence to discourage the 
use of children as soldiers by other governments and armed 
groups. In addition, ratification will complement the 
substantial humanitarian assistance that the United States 
devotes to assist children affected by war.
    The use of children as soldiers and the sale or sexual 
exploitation of children offends every American's sense of 
decency. By ratifying these optional protocols, the United 
States can provide critical support to global efforts to 
protect children from devastating exploitation.
    Thank you very much for the opportunity to share this 
testimony with you.
    [The prepared statement of Ms. Becker follows:]

 Prepared Statement of Jo Becker, Advocacy Director, Children's Rights 
                      Division, Human Rights Watch

    Madam Chair and members of the Committee:
    Good morning. My name is Jo Becker, and I am the advocacy director 
for the Children's Rights Division of Human Rights Watch. I also serve 
on the steering Committee of the U.S. Campaign to Stop the Use of Child 
Soldiers, and from 1998 until 2001, was the chair of the steering 
Committee for the international Coalition to Stop the Use of Child 
Soldiers.
    It's a privilege to speak on behalf of United States ratification 
of the Optional Protocols on the sale of children, child prostitution 
and child pornography and on the involvement of children in armed 
conflict. I'd like to speak briefly to the sexual exploitation and sale 
of children, and then devote the bulk of my remarks to the issue of 
child soldiers.
    Every year, millions of children enter the commercial sex trade or 
are trafficked into slave-like labor practices. The State Department 
estimates that every year, 50,000-100,000 women and children are 
trafficked just into the United States. About half are trafficked into 
bonded sweatshop labor or domestic servitude, and another half are 
trafficked into the sex industry. The most vulnerable to these 
practices include children who are poor, abandoned, orphaned or 
displaced from their homes. Mostly girls, these children are often 
promised good jobs, only to find themselves working in brothels or 
sweatshops. They often have no control over the nature or place of 
work, have been deceived about what money they may receive, and are 
subject to slave-like conditions and serious physical abuse. They are 
often held in debt bondage, raped, and subjected to torture, beatings 
and exposure to AIDS.
    Human Rights Watch has investigated the trafficking of women and 
girls from Nepal to India, from Bangladesh to Pakistan, from Burma to 
Thailand, and from Thailand to Japan. In Nepal, we found that girls are 
frequently lured from remote hill villages and poor communities by 
recruiters, relatives or neighbors who promise jobs or marriage. 
Sometimes they are sold for as little as $4 to brokers, who then sell 
them to brothels in India for $500 or $1000, an amount the girl is then 
forced to work off. Many of these girls end up in Bombay, where an 
estimated 20,000 brothel workers are thought to be under the age of 18. 
Half of these are thought to be infected with HIV.
    Children do not need to be trafficked to be exploited within the 
sex industry. Poor children living on the streets may enter the sex 
trade to try to earn more money than they can from other forms of 
street labor, to finance a drug habit, or simply to be able to eat. 
Pimps prey on these children, and exploit their vulnerability for 
financial gain.
    The Optional Protocol builds on other standards by obliging 
governments to take tangible steps to ensure that adults involved in 
the exploitation of children are punished, to prevent the sale of 
children, child prostitution and pornography, to protect particularly 
vulnerable groups and to protect the rights of child victims. To date, 
92 governments have signed, and 18 have ratified the protocol.
    The recruitment and use of children as soldiers is another 
abhorrent abuse against children. Approximately 300,000 children have 
been recruited to fight in armed conflicts in over 30 countries around 
the globe. While this problem may seem very distant to some, on January 
4th, it hit very close to home when U.S. Army Sgt. Nathan Ross Chapman 
became the first U.S. military casualty in Afghanistan from hostile 
fire after reportedly being shot by a 14-year-old boy.
    In Afghanistan, two generations of children have been subject to 
recruitment, first into the resistance to Soviet forces, and then into 
various warring factions. As part of the most recent conflict, the 
Northern Alliance recruited children as young as age eleven, and the 
Taliban commonly recruited children from madrassas (religious schools) 
in Pakistan.
    Around the world, the ranks of child soldiers include children as 
young as eight recruited into paramilitaries in Colombia, teenaged boys 
forcibly taken from their villages in Burma to serve in the national 
army, and young girls who are kidnapped by the Lord's Resistance Army 
in Northern Uganda for use as soldiers and sex slaves.
    Some child soldiers are recruited by force and compelled to follow 
orders under threat of death. Others, their lives devastated by poverty 
or war, join armed groups out of desperation. As society breaks down 
during conflict, children are left with no access to school, often 
driven from their homes or separated from their families. Many perceive 
armed groups as their best chance for survival.
    Child soldiers often start out as porters, cooks or messengers, but 
frequently end up on the front line of combat. Considered 
``dispensable,'' they may be pushed into the most hazardous roles--
going into mineflelds ahead of older troops, or being used for suicide 
missions. Some are forced to commit atrocities against their family or 
neighbors, in order to sever the child's ties with their community and 
ensure that they are not able to return home.
    Ishmael Beth is a former child soldier from Sierra Leone that hoped 
to testify here today. He was recruited when he was 13 years old. He 
says, ``I vividly remember the very first day that I was in combat . . 
. I was recruited with the kids that were eight years old, nine years 
old. They were so small some of them couldn't even carry the AK-47's 
that were given to us so they had to drag it. I was in an ambush and 
bullets were flying back and forth, people were shooting. I didn't want 
to pull the trigger at all but when you watch kids . . . being shot and 
killed and . . . dying and crying and their blood was spilling all over 
your face you just moved beyond, something just pushed you and you 
start pulling the trigger.''
    Ishmael was one of the lucky ones. After three years in the war, he 
was placed into a rehabilitation program where he received counseling 
and was assisted to go back to school. He's now studying at a college 
in Ohio. But for many other children, the future is desperately bleak. 
Denied their childhood and education, and having witnessed and 
participated in horrific violence, it's hard to imagine how these 
children can ever become productive members of civilian society.
    Human Rights Watch has directly documented the use of child 
soldiers in Angola, Burundi, Colombia, the Democratic Republic of 
Congo, Liberia, Rwanda, Sierra Leone, Sudan, and Uganda. These are 
brief snapshots of some of our findings:
    In the Democratic Republic of Congo, thousands of children have 
been recruited into the war, often abducted from schools, roadsides, 
markets and their homes. Rwandan-backed rebel forces have forced 
unarmed children into battle as decoys. These children were ordered to 
make noise and beat on trees with sticks in order to draw government 
fire away from the more experienced, armed troops. The reported result 
was that they were ``killed like flies.''
    In Uganda, the Lord's Resistance Army has abducted more than 10,000 
children from Northern Uganda over the last decade. Children are forced 
to fight, and often compelled to help beat or hack to death fellow 
child captives that have attempted to escape. Girls are given as 
``wives'' to rebel commanders.
    In Colombia, up to 10,000 members of guerrilla forces and army-
backed paramilitaries are under age eighteen. The guerrilla use 
children to collect intelligence, make and deploy mines, and serve as 
advance troops in ambush attacks, while paramilitaries force families 
to provide children for service or risk being killed as suspected 
guerrilla sympathizers.
    In Burundi, hundreds of children as young as seven have been 
recruited into government-linked paramilitaries. They are subjected to 
harsh conditions and some have died as a result of beatings by older 
soldiers. Many others died in combat after being sent into battle ahead 
of regular troops.
    In Sierra Leone, thousands of children abducted by rebel forces 
witnessed and participated in horrible atrocities, including 
beheadings, amputations, rape and burning people alive. Children forced 
to take part in atrocities were often given drugs to overcome their 
fear or reluctance to fight.
    As international attention to these horrific abuses against 
children has grown, so has international action. In 1999, the 
International Labor Organization recognized the forced recruitment of 
children as soldiers for use in armed conflict as one of the worst 
forms of child labor. Over the last three years, the use of child 
soldiers has become a regular part of the UN Security Council's agenda. 
And increasingly, regional and other bodies have adopted resolutions on 
child soldiers, including the Organization of American States, 
Organization of African Unity, the European Parliament, and the 
Organization for Security and Cooperation in Europe.
    Most significant of these milestones is the adoption of the 
Optional Protocol on children and armed conflict. It is the first 
international treaty prohibiting the forced recruitment or 
participation of children under the age of eighteen in armed conflict. 
It represents a new global consensus that children should not be used 
as instruments of war. Since its adoption by the UN, it has been signed 
by 99 governments, and ratified by 16. Human Rights Watch was pleased 
that the United States was one of the first countries to sign the 
treaty, on July 5, 2000, and believes that ratification should take 
place as soon as possible.
    Under the protocol, governments must take all feasible measures to 
ensure that members of their armed forces that are under the age of 
eighteen do not take a direct part in hostilities, and are prohibited 
from conscripting or compulsorily recruiting any persons under the age 
of eighteen. Rebel or other non-governmental armed groups are 
prohibited from recruiting under-18s or using them in hostilities. 
Governments are required to criminalize such practices and take other 
measures to prevent the recruitment and use of children by such groups. 
Governments are also required to raise their minimum age for voluntary 
recruitment beyond the current minimum of fifteen, and must deposit a 
binding declaration stating the minimum age they will respect. (In 
practice, this means the minimum age for voluntary recruitment must be 
at least sixteen.) Those governments accepting volunteers under the age 
of eighteen must maintain a series of safeguards, including parental 
consent, and proof of age. Parties also must offer assistance for the 
rehabilitation and reintegration of former child soldiers.
    There are many reasons why the United States should ratify the 
protocol. I'll focus on six:

          (1) The protocol has already made a difference. International 
        treaties aren't always respected. But we've already seen 
        results from the protocol and increased international attention 
        to child recruitment. Even before the protocol was finalized, 
        some countries began to change their practices. In Colombia, 
        thousands of children were demobilized from the Colombian armed 
        forces. In June of 2000, President Kabila of the Democratic 
        Republic of Congo issued a decree calling for the 
        demobilization of child soldiers from the Congolese army, and 
        is cooperating with UNICEF to put rehabilitation programs into 
        place. Other countries, such as Portugal, South Africa and 
        Italy, have adopted legislation to raise the age of recruitment 
        into their armed forces.
          (2) The protocol can influence non-governmental forces. In 
        the last two years, we've seen large-scale demobilizations of 
        children even from rebel forces, Last February, over 2500 
        children between the age of thirteen and eighteen were 
        demobilized from the Sudan People's Liberation Army. From May 
        to November over 1500 children were demobilized from the 
        Revolutionary United Front in Sierra Leone. In these and other 
        cases, non-state forces can be persuaded to comply with 
        international standards to enhance their own credibility.
          (3) The protocol has the support of the American public. A 
        1999 public opinion poll conducted for the Red Cross asked 
        Americans ``At what age is a person mature enough to be a 
        combatant?'' 93% of the U.S. public responded that combatants 
        should be at least 18. A broad range of non-governmental 
        organizations also support the protocol, including the American 
        Bar Association, American Academy of Pediatrics, Children's 
        Defense Fund, National Council of Churches, Save the Children 
        and Vietnam Veterans of America Foundation.
          (4) U.S. support for an international ban on the use of child 
        soldiers can help protect U.S. soldiers. Army Sgt. Chapman was 
        not the first U.S. soldier to encounter a child soldier in a 
        combat situation. Many U.S. soldiers faced armed children 
        during the Vietnam war and had to make a choice whether to 
        defend themselves or possibly take the life of a child. 
        Children are often used as soldiers because they may be more 
        easily able to approach enemy forces without suspicion and are 
        more willing to undertake dangerous missions than their adult 
        counterparts. As a result, U.S. soldiers may be at increased 
        risk in conflicts where children are used.
          (5) U.S. recruitment and operations will not be significantly 
        affected. Under the protocol, the United States must take all 
        feasible measures to ensure that members of its armed forces 
        that are below age 18 do not participate directly in 
        hostilities. Because of the small number of 17-year-olds on 
        active duty, this provision affects an extremely small number 
        of U.S. troops. The Defense Department reported to Human Rights 
        Watch that of those enlisted troops who have completed both 
        their basic and technical training and been assigned to units, 
        99.76% are age eighteen or older. Those that remain can be 
        reassigned for the short period of time before they turn 
        eighteen.
          (6) The need for U.S. leadership. The importance of U.S. 
        leadership by example on this issue should not be 
        underestimated. By ratifying the Optional Protocol, the U.S. 
        will be in a strong position to use its considerable political 
        and military influence to discourage the use of children as 
        soldiers by other governments and armed groups. Ratification 
        will also complement the substantial humanitarian assistance 
        the United States devotes to assist children affected by war.

    Human Rights Watch takes the position that no child should be 
recruited--whether forcibly or voluntarily--before the age of eighteen. 
We believe this is the best way to ensure that children are not exposed 
to combat or the risk of attack. However, the protocol sets a lower 
standard, in part because significant compromises were made during the 
negotiation of the protocol to accommodate the United States and other 
countries that accept voluntary recruits before the age of eighteen. An 
additional concession was made solely for the United States to enable 
it to ratify the optional protocols as stand-alone agreements without 
having ratified the Convention on the Rights of the Child. In light of 
these concessions, we strongly urge this Committee to recommend the 
protocol to the full Senate with no reservations.
    The use of children as soldiers and the sale or sexual exploitation 
of children offends every American's sense of decency. By ratifying 
these Optional Protocols, the United States can provide critical 
support to global efforts to protect children from devastating 
exploitation.
    Thank you for the opportunity to share this testimony with you 
today.

                                 ______
                                 

   Responses of Ms. Jo Becker to Additional Questions for the Record 
                    Submitted by Senator Jesse Helms

    Question. How will United States participation in this agreement 
halt the conscription of ``child soldiers'' when this horrible practice 
is occurring in places such as Africa and Asia and by mostly non-state 
groups and militias?

    Answer. Because of the United States' international position of 
leadership, its ratification of the protocol will lend considerable 
weight to the new international standard that has been established. 
Once it ratifies the protocol, the U.S. will also be able to bring its 
significant diplomatic and military influence to bear on other 
governments and armed groups around the world, in order to influence 
theft recruiting and deployment practices.
    Although the popular conception is that the use of child soldiers 
is primarily a problem of non-state groups, large numbers of child 
soldiers are also used by national governments. For example, the 
government of Burma utilizes more children in its national armed forces 
than any other country in the world. However, even non-state armed 
forces can be influenced by international law. I have personally spoken 
with representatives of opposition armies that have expressed interest 
in voluntary compliance with the optional protocol as a way of 
enhancing their international credibility.

    Question. What is your view of the ``understandings'' that the 
Defense Department wants placed in the resolution of ratification? Do 
these make sense, or will they be criticized by you and other Protocol 
proponents?

    Answer. Regarding the understandings related to the Convention on 
the Rights of the Child stating that the U.S. assumes no obligation to 
the CRC by becoming party to the Protocol: Human Rights Watch supports 
U.S. ratification of the Convention, and urges the U.S. to ratify the 
Convention in the future. However, given the current circumstances, the 
understandings are reasonable.
    Regarding the understanding with respect to Article 1: In 
interpreting Article 1, it is important to recall the principal purpose 
of the Optional Protocol, which is to minimize the harm suffered by 
children (individuals under 18) involved in armed conflict. 
Understandings can have the effect of enhancing or restricting legal 
instruments in their application. We would hope that particularly when 
dealing with the protection of children, the United States will adopt 
understandings to enhance the protection of children. We would be 
concerned regarding any understanding that would have the effect of 
restricting these protections.
    It is also important to remember that the protocol was negotiated 
over a long period, during which the United States was actively 
involved and had ample opportunity to put forward its views. Indeed, in 
several key respects, compromises were made to restrict the scope of 
the protocol due to concerns of the United States. In this light, 
further restrictions should not be necessary.
    I have two specific points related to the understanding on Article 
1: First, the protocol calls on states to take ``all feasible 
measures'' to ensure that members of the armed forces who have not 
attained the age of 18 years do not take a direct part in hostilities. 
``All feasible measures'' implies that in some circumstances, 
exceptions can be made and a degree of discretion is given to the state 
party. However, given the object and purpose of this protocol, we would 
expect the United States to apply exceptions with the utmost restraint. 
Applying the interpretation of measures that ``are practical or 
practically possible'' may be too ambiguous and does not seem to be 
helpful or necessary.
    Second, ``direct part in hostilities'' implies a sufficient causal 
relationship between the act of participation and its immediate 
consequences. However, ``gathering and transmitting military 
information'' or ``transporting weapons, munitions and other supplies'' 
may meet this criterion if these activities are directly related to the 
conduct of hostilities, and/or occur on the battlefield. There is a 
direct link between a member of the armed forces who transports 
ammunition to the front line or who pinpoints targets for attack and 
the harm caused to enemy forces.
    Finally, I'd like to point out that given the extremely small 
number of 17-year-olds on active duty in the U.S. armed forces and 
deployed abroad, the U.S. should be able to apply rigorous measures to 
preclude their participation in hostilities.

    Question. What is your understanding of U.S. military recruiting 
and deployment policies? Are they consistent with the letter and spirit 
of the Protocol?

    Answer. I understand current law and policy to allow the voluntary 
enlistment of individuals into the armed forces beginning at age 
seventeen. Those enlisting before the age of eighteen are required to 
have the written permission of their parents or guardians. In the event 
of a draft, U.S. law allows the conscription of individuals beginning 
at age eighteen. These provisions are both consistent with the letter 
and spirit of the protocol.
    I understand current U.S. deployment policies to allow the 
assignment of troops to units, including combat units, on the 
completion of their training. These units may then be deployed to a 
theater of combat. In the past, 17-year-old U.S. troops have been among 
those service members who have participated in operations in Bosnia, 
Somalia and the Gulf War. Although I do not have the details regarding 
the specifics of these 17-year-olds' assignments, this past practice 
raises questions with respect to the protocol. Under the protocol, the 
U.S. will be required to take all feasible measures to ensure that 
members of the armed forces who have not achieved the age of 18 years 
do not take a direct part in hostilities.

    Question. Does the United States incur a financial obligation upon 
ratification of this Protocol, as well as give legal recognition to the 
Convention on the Rights of the Child?

    Answer. I do not believe that the United States will incur any 
financial obligations from ratifying the protocol, and it will not have 
any legal obligations under the Convention on the Rights of the Child.

    Question. A United Nations report on Child Soldiers, the 
preparation of which was assisted by Amnesty International, makes the 
following allegations against the United States:
    (1) Recruiters with the Deployed Entry Program (DEP) often harass, 
intimidate and threaten young people to enlist and/or keep their DEP 
commitment. They cite a 1999 investigation by an Atlanta TV station for 
this evidence. (According to DOD statistics, in 1998 between 11 and 19 
percent of DEP enlistees ask to be released.)
    (2) Girls are vulnerable to sexual harassment by recruiters. In 
1999, a Washington state school district banned recruitment in schools 
after allegations of sexual harassment by recruiters.
    (3) The report is extremely critical of military training programs 
and schools. They cite the Young Marines program (with participations 
as young as 8 years old) and JROTC. JROTC, although not an official 
recruiting tool, is accused by this report of engaging in this activity 
as well as promoting violence in schools. Furthermore, JROTC is 
criticized for its disproportionate number of minority participants and 
programs in poor schools.
    Why should the United States sign up to a protocol whose chief 
sponsors and proponents make these misleading charges about our 
country, and attempt to make a comparison or link between the 
recruiting policies of countries such as the U.S., Canada and Britain, 
and the forced conscription of 8- and 10-year-olds in Africa and East 
Asia?

    Answer. The report referenced is the Child Soldiers Global Report, 
published by the Coalition to Stop the Use of Child Soldiers in June 
2001. It surveyed the recruitment laws and practices of 180 countries 
around the world. By including the United States and other Western 
countries in this global survey, I do not believe that the Coalition 
intended to compare U.S. practices to the forced conscription of 8- and 
10-year-olds.
    The Coalition report did not only survey the practices governed by 
the protocol, but also sought to provide information on the context for 
military recruitment, including military schools and other programs 
such as JROTC. Members of the Coalition believe the information 
provided about such programs in the United States is accurate. The 
information about recruiter harassment, including sexual harassment, 
was also based on credible sources and should be of concern to all 
parties, regardless of their position regarding the protocol.

    Question. The authors of this Protocol, as well as the United 
Nations, understand the Protocol to read that 17-year-old soldiers 
functioning in a support role in a combat zone, such as driving a truck 
transporting supplies to the front, are ``participating in 
hostilities.'' I am aware that the Pentagon has a different 
interpretation of this Article of the Protocol, but if the rest of the 
world reads it this way, then it is quite possible that the U.S. will 
be charged with violating the Protocol, and that U.S. commanders will 
be held responsible. Would you agree?

    Answer. Support roles such as cooking at an army camp, or carrying 
out certain administrative duties would not be considered direct 
participation in hostilities. However, as stated above, a soldier 
delivering ammunition to the front lines could be considered to be a 
direct participant in hostilities, if there was a sufficient causal 
relationship between the act of participation and its immediate 
consequences. For example, if a 17-year-old is ordered to deliver 
munitions to a unit that has exhausted its supplies and is dependent on 
additional weaponry or ammunition in order to continue carrying out 
hostilities, a direct causal relationship could be argued. However, 
much more would need to be known about the specifics of a particular 
case before being able to say whether or not the protocol was being 
violated.

    Question. The UN and proponents of this Protocol, such as Amnesty 
International, contend that any 17-year-old soldier deployed to a 
combat zone, regardless of whether he or she is in a combat unit, or in 
the front or rear, would constitute a violation of the Protocol. They 
argue that the Geneva Convention and its additional protocols define 
combatants, under international law, as members of a nation's armed 
forces. And as such, they can lawfully kill or be killed. Therefore, 
putting a minor in a situation in which they can be lawfully killed--
even if they are not in a situation where they will likely to be 
engaged in combat--would constitute a violation of the Protocol. What 
are your thoughts on this matter?

    Answer. There are two important issues here: First, the definition 
of a combatant, and secondly, the requirements of the protocol. 
Regarding the first issue, in principle, during armed conflict, any 
member of the armed forces is a legitimate target of attack. Since the 
protocol allows 17-year-olds to serve in the armed forces, they are 
therefore vulnerable to attack, even if they are simply in their 
barracks. Therefore, there may be situations in which a minor being 
killed as a result of an enemy attack does not automatically constitute 
a violation of the protocol.
    However, as stated earlier, the spirit and purpose of the protocol 
is to increase the protection of children from involvement in armed 
conflict. To be consistent with the spirit of the protocol, measures 
should be taken to avoid placing under-age soldiers in combat areas 
where they may face increased risks of attack, and as discussed 
previously, they should not be directly involved in hostilities.

    Question. Based on the views of some human rights groups have 
written, a 17-year-old in uniform constitutes a legitimate target (a 
combatant). And because under the Geneva Convention combatants can be 
legally killed, the U.S. would be in violation of the Protocol for 
placing a 17-year-old in such a situation. Should, therefore, there be 
an understanding that the U.S. is not in violation of the Protocol if 
17-year-olds are physically in a theater of operations or war zone and 
killed or banned by the enemy not as a result of ``direct combat''?

    Answer. See previous answer. An understanding of this type is not 
necessary.

    Senator Boxer. Thank you so much.
    And now we will hear from RADM. Eugene Carroll, who served 
in the Navy for over 30 years, rising to the rank of Rear 
Admiral. We are very happy you are with us, Admiral Carroll.

  STATEMENT OF RADM. EUGENE J. CARROLL, JR., USN (RET.), VICE 
PRESIDENT EMERITUS, CENTER FOR DEFENSE INFORMATION, WASHINGTON, 
                               DC

    Mr. Carroll. Thank you, Madam Chairman. It is an honor to 
be here to address the Committee today on this very sensitive 
issue of child soldiers.
    Because you have already heard excellent comments about the 
legal, moral, and political implications of the Child Soldier 
Protocol, I would like to confine my brief remarks to a very 
single pragmatic issue. Will implementation of the Child 
Soldiers Protocol in any way degrade the combat readiness and 
military effectiveness of the United States armed services?
    I claim some special insight into this problem because for 
2\1/2\ years I directed the Navy's military manpower 
requirements programs and personnel plans and policies 
immediately after President Nixon had ended the draft. I can 
assure you at that time the services were all in desperate 
straits trying to maintain military readiness and 
effectiveness. Considering that now we have about 1,400,000--
then we were trying to maintain a much bigger force--and the 
fact that there are retention and recruitment bonuses 
abounding, personnel management, procurement, and assignment is 
easier now for the services. We have been dealing with peope 
problems for a long time.
    Looking at the Child Soldiers Protocol, it becomes obvious 
that not a single one of the services' current recruiting 
programs will be in any way imperiled or degraded. Department 
of Defense military training programs can begin for children as 
young as 13 years of age, as now occurs, and recruiting begins 
on the 17th birthday.
    The only new requirement is that when we assign these 
recruits to duty we take ``all feasible measures to ensure that 
their members of the armed services who have not attained the 
age of 18 years do not take a direct part in hostilities.'' You 
discussed this with Mr. Billingslea. To meet this new 
requirement, however, is a very simple management matter.
    First, the great majority of those who enlisted at 17 years 
of age come in through the delayed entry program and, as was 
explained, are already over 18 by the time they report for 
duty.
    Second, the minimum time for basic and initial recruit 
training is from 4 to 6 months, so that another half of the 17-
year-old cadre passes their 18th birthday before completing 
recruit training.
    Finally, many of the recruits go directly from basic to 
advanced specialty or technical training which can take up to 
64 weeks. So, another group gets aged-out of the problem. In 
the most recent DOD report, fewer than 3,000 recruits below the 
age of 18 were available for assignment to general duties.
    It is impossible to make that figure any more precise 
because DOD simply has not provided the figures, but you can 
say that under normal circumstances today, observing the Child 
Soldiers Protocol will require us to find special assignments 
for about 100 recruits each month in each service who have not 
attained their 18th birthday.
    In addition to the very small numbers you have to find 
noncombat assignments for, there is another reason why such 
assignments are not a problem. In each service, there are 
combat units at varying levels of readiness: Equipment changes, 
just returned from deployment, state of training. These units 
are simply not in condition to be ordered out to combat 
service. You can have the assignment offices flag these low 
priority units and take the 10 or 20 people that they have each 
month and push them into those units. If you spread them out 
very evenly among the low priority units you are not going to 
have any bunched-up group of recruits who are suddenly going to 
be subjected to combat service.
    The way I would demonstrate this, by the way, is the army 
has just announced a program in which they will provide special 
assignment consideration for army members who are returning 
from arduous duties. Such duties involve family separation of 
more than 6 months. Army has announced that all such 
individuals will be posted to duties which will not result in 
further family separation for at least another 6 months. 
Because this policy will affect assignments for thousands of 
individuals, many of them senior with special skills and 
experiences, it will require major personnel management efforts 
to ensure that they are protected from deployment for 6 months. 
Protecting a very few inexperienced, unskilled 17-year-olds for 
3 months is no challenge whatever by comparison.
    Another point I would like to make is that those who argued 
against the optional protocol often claim that combat readiness 
and esprit would suffer if there was an early, unplanned 
deployment of a unit to combat duties that would require the 
transfer out of the 17-year-olds. Well, as I have noted, the 
numbers are small. They are inexperienced. They will have only 
been in the unit for a short time. This just is not going to 
tear up the unit's structure and readiness.
    The Navy, for example, before a carrier or a battle group 
deploys today, will find the enlisted members and officers 
whose service expires in the next 2 months, and they will move 
them all out rather than send them overseas and bring them 
back.
    So, the management system is in place. The numbers that 
will be involved are very limited, and people can be protected 
from combat service without either loss of unit strength or 
esprit.
    I would point out that the units most subject to early 
deployment, Rangers, Seals, Airborne forces, Air Force Special 
Operations units, all require special training, and they do not 
have any 17-year-olds. So, there is no problem with sudden, 
unexpected exposure there.
    In summary, I would say the 17-year-old recruits who are 
available for assignment to combat units probably number fewer 
than 100 on any one day, or about 0.1 percent of our current 
active force. This presents no personnel management problems 
nor threat to the combat readiness and effectiveness of the 
United States armed services.
    [The prepared statement of Admiral Carroll follows:]

  Prepared Statement of RADM. Eugene J. Carroll Jr., USN (Ret.), Vice 
           President Emeritus, Center for Defense Information

    You have already heard information and comments about the legal, 
moral and political implications of assigning individuals under the age 
of 18 to combat duties.
    For that reason I will confine my brief remarks to a more pragmatic 
issue: Will combat readiness and effectiveness of the U.S. Armed 
Services be reduced by restricting U.S. servicemen and women under the 
age of 18 from assignment to combat duties?
    I claim some special insight into this issue by virtue of two and 
one-half years concurrent service as both Director of U.S. Navy 
Manpower Planning and Programming and as Assistant Chief of Naval 
Personnel Plans and Programs. In these assignments I directed two 
staffs, which determined how many and what kind of people Navy needed; 
and then, determined how we would recruit, train, assign, promote and 
retire those people. This was during the period immediately after 
President Nixon had ended the draft and all of the services were in 
desperate straits to man forces much larger than today's 1,400,000 
active forces. Since then basic pay has more than tripled and 
recruitment and retention bonuses abound. Today the services face new 
problems in a terrorist world but personnel numbers and force 
management are not among them.
    Looking at the Child Soldiers Protocol, it becomes obvious that not 
a single one of the service's current recruiting programs is adversely 
affected in any way. Department of Defense Military training programs 
can legally begin for children as young as 13 years of age and 
recruiting for active service still begins at the 17th birthday.
    The only new requirement is that the United States government must 
``take all feasible measures to ensure that members of their armed 
services who have not attained the age of 18 years do not take a direct 
part in hostilities.'' To meet this new requirement is a very simple 
matter for three reasons:

          1. The great majority of those who enlist at 17 years of age 
        actually enter service under the Delayed Entry Program, which 
        permits them to delay service for up to 12 months. Only 6% of 
        all recruits are less than 18 years old when they finally 
        report for active duty.
          2. The minimum period of time for basic recruit training 
        ranges from 4 to 6 months. About half of the 17-year-old cadre 
        passes their 18th birthday before completing recruit training.
          3. Finally, the majority of recruits go directly from basic 
        to advanced specialty or technical training which can take up 
        to 64 months. Thus, all but one quarter of one percent of all 
        recruits are more than 18 years of age before they become 
        available for assignment to combat units.

    It is impossible to determine a precise number of 17-year-olds who 
complete basic training and become available immediately for combat 
assignments. In June 1999, DOD estimated that less than 100 17-year-
olds were serving in combat units. A different figure was offered by 
DOD as of 30 September, 2000 when they reported that there were a total 
of 3289 individuals less than 18 years of age on active duty but only 
468 had completed training and were available for assignment to service 
units. Thus, under the Child Soldiers Protocol, over a one-year period 
each service, on average, would have to find assignments, which would 
not expose 120 recruits to combat for a period of about three months 
until they attained their 18th birthday.
    In addition to the small numbers involved, there is another reason 
why such assignments would be no problem. In each service there are 
units at various stages of training and equipment readiness for 
deployment. In each service assignment offices would flag the lowest 
rated units and every month spaces would be found in them for about 10 
recruits. When one considers that every month each service must find 
spaces for about 3,000 to 4,000 recruits in the active forces, 10 
restricted assignments per month pose no personnel management problem 
at all.
    This can be demonstrated by the recent Army decision to provide 
special assignment consideration for all Army members returning from 
arduous duties, which involved family separation of more than six 
months. Army has announced that all such individuals will be posted to 
duties which will not result in further family separation for at least 
six months. Because each year this policy will affect assignments for 
thousands of individuals, many of them senior with special skills and 
experiences, it will require major management efforts to ensure that 
they are protected from deployment for at least six months. Protecting 
a few inexperienced 17-year-old recruits for about three months is no 
challenge, by comparison.
    As a last point, in the past those who argued against the Optional 
Protocol often claimed that combat readiness and unit esprit would both 
suffer if an unplanned deployment to a combat zone suddenly required 
the transfer out of 17-year-olds. As explained above, this would 
involve at most a few very junior, unskilled members who had been with 
the unit only a few weeks. The few vacancies could be quickly filled by 
lateral transfers of 18 year-olds from nearby units without loss of 
either unit strength or esprit. Also, it is noted that this would never 
happen in the highly mobile, readily deployable prestigious combat 
units such as Rangers, Seals, Airborne or Air Force Special 0ps units 
because the special training required to qualify for duty in such units 
ensures that no 17-year-olds serve in them.
    In summary, 17-year-old recruits who are available for assignment 
to combat units number fewer than 200, or about one tenth of one 
percent of the current 1,400,000 active duty force. This presents no 
personnel management problems nor threat to the combat readiness of the 
U.S. Armed Services.

                                 ______
                                 

  Responses of RADM. Eugene J. Carroll, Jr., USN (Ret.) to Additional 
       Questions for the Record Submitted by Senator Jesse Helms

    Question. Admiral Carroll, what is your view of the 
``understandings'' that the Defense Department wants placed in the 
resolution of ratification? Do these make sense, or will they be 
criticized by you and other Protocol proponents?

    Answer. I am unable to identify any ``understandings'' proposed by 
the Department of Defense. Assuming that the question refers to the 
Understandings set forth in a State Department Report which was 
forwarded to the Senate on July 25, 2000 by President Clinton, my 
answer follows. The apparent intent of the Understanding relating to 
Article 1 of the Protocol is to set the stage for a U.S. defense in the 
unlikely event of a 17-year-old becoming involved in combat action. The 
tortured legal circumlocution seeks to exculpate the U.S. in advance by 
narrowly defining the terms ``all feasible measures'' and ``direct part 
in hostilities.'' None of this in anyway reduces the services' 
obligation under the Protocol to make formal, effective provisions to 
assign several hundred 17-year-old recruits each year to duties outside 
of areas of active hostilities and/or to units scheduled for early 
deployment to such areas. As long as there is a good faith effort to do 
this, no individual or group would have any basis for complaint if one 
or more 17-year-old service members happened to come under fire through 
the exigencies of military service. As the events of September 11, 2001 
make clear, not all violence can be predicted or avoided.
    All of the Understandings under each of the other Articles except 
Article 9 are innocuous and should not interfere with full U.S. 
compliance with the letter and spirit of the Protocol. For this reason 
they should draw no public criticism.
    Article 9, however, raises once again all of the fundamental 
questions as to why the U.S. will not accede to the U.N. Convention on 
the Rights of the Child, a Convention which is American in spirit, 
objectives and values. Nevertheless, that is a separate debate which 
will go on without respect to the undeniable importance and value of 
the Child Soldiers Protocol which stands alone as an independent 
multilateral treaty. Taken altogether, the Understandings are sensible 
and should be accepted without complaint by all those who support the 
Protocol as drafted.

    Question. Will this protocol have any impact on the United States 
Armed Forces ability to enlist 17-year-olds, or on the military's 
ability to recruit at high schools, sponsor JROTC programs, or 
participate in other activities involving Americans who are not yet 
eighteen?

    Answer. The Child Soldiers Protocol permits the United States to 
continue all current recruiting and training practices, specifically 
the voluntary enlistment of 17-year-olds and enrollment of ninth grade 
students as young as 13 years of age in the JROTC and NJROTC programs. 
It interposes no restraints whatever on voluntary recruiting 
activities. The prohibition of conscription below the age of 18 is 
consistent with U.S. laws. For those several hundred recruits who 
complete entry level training each year before their 18th birthday, the 
Protocol requires only that the services ``take all feasible measures'' 
to assign them to units which will not be subject to hostile action 
before they attain their 18th birthday. Based on my personal 
experiences in personnel planning, management and assignment programs, 
this poses no significant problems for any of the services. It 
certainly will not impair combat readiness, unit integrity and esprit 
because it involves only a miniscule number of the least experienced 
members in a very few units. It could even have a positive effect on 
recruiting because it could encourage parents to grant permission for a 
child to enlist at age 17, secure in the knowledge that the services 
will endeavor to assure that the child will not be sent directly into 
combat.

    Senator Boxer. Thank you very much, Admiral Carroll.
    We will turn to Admiral Fanning of the Navy League and we 
welcome you.
    By the way, let me state that I am going to put all of your 
statements in the record, as you have submitted them, and that 
goes for the first panel as well. We appreciate that you are 
summarizing. Please proceed.

   STATEMENT OF RADM. TIMOTHY O. FANNING, JR., USNR (RET.), 
   NATIONAL PRESIDENT, THE NAVY LEAGUE OF THE UNITED STATES, 
                         WASHINGTON, DC

    Mr. Fanning. Thank you. Madam Chairperson, Senator Helms, I 
would like to thank you for the opportunity to testify before 
your Committee on the child soldier issue as it relates to the 
Protocol on Children in Armed Conflict. The practice by which 
young children are taken from their families and forced to join 
armed factions in endless conflicts is a scourge and should be 
eradicated as quickly as possible. Pursuit of that goal is a 
noble effort.
    However, care must be taken to avoid unintentional 
consequences in pursuit of that goal. A strict reading of the 
protocol raises questions with regard to the assignment of 
young armed service members. I am aware of the potential 
impacts on morale and readiness that restrictions on personnel 
assignments can have. I have acquired this knowledge through a 
series of command positions in the course of 31 years of active 
and reserve duty in the Naval Reserve, including an assignment 
on the Reserve Policy Board.
    I am also aware of the attitudes and circumstances 
associated with young volunteers and the benefits that can be 
provided by certain youth organizations. Among other 
activities, I founded a United States Naval Sea Cadet unit and 
went on to be President and Chairman of the Board of Directors 
of the United States Naval Sea Cadet Corps. This corps directs 
a nationwide youth leadership program involving young men and 
young women, ages 11 to 17. It has been my personal observation 
that for those who wish to participate in programs like the 
U.S. Naval Sea Cadet Corps, Junior ROTC in our high schools, 
and the Young Marines program provide an opportunity for young 
people to become involved in an alternative, structured program 
in which leadership skills are acquired and self-discipline is 
developed. Many of those who participate in these programs come 
from one-parent families under circumstances where these 
opportunities and appropriate role models are not otherwise 
available. Participation in these programs allows young people 
to make an informed decision as to whether they would be 
interested in joining our all-volunteer armed forces. I believe 
you will find a much higher retention rate in boot camps for 
volunteers who have been in these youth programs because they 
enter military life with better preparation and a more 
realistic view of its benefits and demands. I certainly hope 
the provisions of this protocol will not be manipulated by some 
groups to adversely affect the useful contributions of these 
volunteer civilian organizations.
    From a military point of view, our service chiefs are 
charged with developing a superior military force available to 
carry out the commands of the Commander-in-Chief for the 
defense of our great Nation. Currently our armed services are 
permitted to recruit 17-year-old volunteers with parental 
consent. This practice, as we have been shown, is carefully 
regulated and should be allowed to continue without additional 
hindrance. To impose on unit and ship commanding officers a 
requirement to consider birthdays when making duty assignments 
or forcing them on the verge of deployment to replace team 
members that have trained hard together and developed a mutual 
trust runs counter to our proven philosophy of readiness. It 
also places an unnecessary burden on commanders whose shoulders 
are already heavily ladened with responsibility.
    I agree that young children should not be soldiers and 
should never be forced into armed factions at a tender age of 
10 or 12, but care must be taken to ensure the protocol is not 
misused. If the protocol is ratified, we need to carefully 
establish how it will be applied and how we will interpret our 
obligations under it. In doing so, we should pursue two goals. 
First, we should ensure that the original problem is confronted 
and confronted without unnecessary collateral damage to our 
military readiness and requirements. Second, we should always 
keep in mind the duty we owe to our commanders to ensure that 
they are not subjected to additional burdens or liability for 
honest decisions made under adverse conditions.
    After hearing the previous panel, I believe that the 
protocol should be ratified but that the criminality provision 
should be carefully considered.
    Thank you very much, Madam Chairperson.
    [The prepared statement of Admiral Fanning follows:]

   Prepared Statement of RADM. Timothy O. Fanning, Jr., USNR (Ret.), 
        National President, The Navy League of the United States

    Madam Chairperson, Senator Helms, I would like to thank you for the 
opportunity to testify before your Committee on the child soldier issue 
as it relates to the Protocol on Children in Armed Conflict. The 
practice by which young children are taken from their families and 
forced to join armed factions in endless conflicts is a scourge that 
should be eradicated as quickly as possible. Pursuit of this goal is a 
noble effort. However, care must be taken to avoid unintentional 
consequences in pursuit of that goal. A strict reading of the Protocol 
raises questions with regard to the assignment of young armed service 
members. I am aware of the potential impacts on morale and readiness 
that restrictions on personnel assignments can have. I have acquired 
this knowledge through a series of command positions in the course of 
31 years of active and reserve duty in the Naval Reserve, including an 
assignment on the Naval Reserve Policy Board.
    I am also aware of the attitudes and circumstances associated with 
young volunteers and the benefits that can be provided by certain youth 
organizations. Among other activities, I founded a United States Naval 
Sea Cadet unit and went on to be President and Chairman of the Board of 
Directors of the United States Naval Sea Cadet Corps. This Corps 
directs a nationwide youth leadership program involving young men and 
young women ages 11-17. It has been my personal observation that, for 
those who wish to participate, programs like the U.S. Naval Sea Cadets, 
Junior ROTC in our high schools and the Young Marines program provide 
an opportunity for young people to become involved in an alternate 
structured program in which leadership skills are acquired and self-
discipline developed. Many of those who participate in these programs 
come from one parent families under circumstances where these 
opportunities and appropriate role models are not otherwise available. 
Participation in these programs allows young people to make an informed 
decision as to whether they would be interested in joining our all 
volunteer armed forces. I believe that you will find a much higher 
retention rate in boot camps for volunteers who have been in these 
youth programs because they enter military life with better preparation 
and a more realistic view of its benefits and demands. I certainly hope 
that the provisions of this Protocol will not be manipulated by some 
groups to adversely affect the useful contributions of these volunteer 
civilian organizations.
    From a military point of view, our service chiefs are charged with 
developing a superior military force available to carry out the 
commands of the Commander-in-Chief for the defense of our great Nation. 
Currently our armed services are permitted to recruit 17-year-old 
volunteers with parental consent. This practice is carefully regulated 
and should be allowed to continue without additional hindrance. To 
impose on unit and ship commanders a requirement to consider birthdays 
when making duty assignments or forcing them, on the verge of 
deployment, to replace team members that have trained hard together and 
developed mutual trust runs counter to our proven philosophy of 
readiness. It also places an unnecessary burden on commanders whose 
shoulders are already heavily laden with responsibility.
    I agree that young children should not be soldiers, and should 
never be forced into armed factions at the tender age of ten or twelve, 
but care must be taken to ensure that the Protocol is not misused. If 
the Protocol is ratified, we need to carefully establish exactly how it 
will be applied and how we will interpret our obligations under it. In 
doing so, we should pursue two goals. First, we should ensure that the 
original problem is confronted and confronted without unnecessary 
collateral damage to our military readiness and recruitment. Second, we 
should always keep in mind the duty we owe to our commanders to ensure 
tbat they are not subjected to additional burdens or liability for 
honest decisions made under adverse conditions.

                                 ______
                                 

 Responses of RADM. Timothy O. Fanning, Jr., USNR (Ret.) to Additional 
       Questions for the Record Submitted by Senator Jesse Helms

    Admiral Fanning, our Navy is deployed around the world. It can be 
difficult to determine when you are in a hostile environment. (For 
example, the Port of Yemen was not considered a combat zone at the time 
the USS Cole was attacked by terrorists.)

    Question. Is our Navy particularly susceptible to charges that it 
failed to keep its 17-year-old sailors out of direct combat?

    Answer. I don't think the Navy is particularly susceptible to 
charges that it failed to keep its 17-year-old soldiers out of direct 
combat. It is my understanding that the Navy can do this with minimum 
administrative impact due to fairly small numbers and a training 
pipeline which would take most new recruits past their 18-year-old 
birthday. Again, the point of my testimony is that I am more concerned 
with the principle of criminality rather than the actual impact.

    Question. Do you have any concerns about unit morale or readiness 
if, in the event of a real-world deployment, 17-year-old soldiers and 
sailors are pulled from the unit at the last moment?

    Answer. No, I don't think that there would be much of an impact on 
morale because the actual incidence in which this could conceivably 
occur is quite small. I am confident that our commanding officers can 
properly explain this to their people.

    Question. What impact will this Protocol have on U.S. military 
commanders for failing to pull their l7-year-olds from a deployment--if 
that becomes DOD policy--or not taking precautions to ensure their l7-
years-olds are not engaged in direct combat?

    Answer. As I said before, the actual impact is likely to be 
negligible because of the small number of affected personnel.

    Question. Could commanders be charged under the Uniform Code of 
Military Justice in certain situations related to this Protocol?

    Answer. Charging commanders with violation of the Protocol is not 
likely to happen. As your Committee is well aware, treaties are not 
self-executing and unless Congress passed a criminal provisions 
codifying the Protocol in the UCMJ it would not result in a UCMJ or 
federal prosecution. If DOD adopted the Protocol and made it binding 
via a lawful general order, then it would be possible for commanders to 
be prosecuted by U.S. military authorities although I think the 
likelihood is fairly remote. As I said before, I am most concerned 
about the underage serviceperson who slips through the cracks and that 
person or his/her commander is held accountable by foreign legal 
authorities.

    Question. What impact will this Protocol, and subsequent Pentagon 
policies to implement it, have on military recruiting, particularly 
since the military does a great deal of its recruiting at high schools?

    Answer. I don't think a bar on 17-year-old combatants will affect 
recruiting in any measurable way, but I'd defer to DOD's analysis of 
this.

    Question. Will this Protocol have any impact on the United States 
Armed Forces ability to enlist 17-year-olds, or on the military's 
ability to recruit at high schools, sponsor JROTC programs, or 
participate in other activities involving Americans who are not yet 
eighteen?

    Answer. No. The Protocol should not have any direct impact on our 
youth recruitment or sponsorship programs. I must reiterate that a 
ratification of the Protocol may mean that we have some public 
relations work to explain why JROTC, Sea Cadets and other youth 
programs are positive and separate and distinct from the intent of the 
Child Soldiers Protocol.

    Senator Boxer. Thank you very, very much, Admiral, and 
thanks to all of you.
    I just wanted to state I thought that your concerns were 
very well put forward here. I am very glad that, after 
listening, you feel now that you can support the ratification.
    I think that because it uses the word ``feasible,'' that is 
a very important word in the protocol itself because something 
could happen that you could not expect, and we are not going to 
be harmed if something like that happens. So, I hope you feel, 
as I do, that we can move forward.
    The point that you made, Admiral Carroll, that I thought 
was very good, that there are disruptions that happen in our 
military all the time and this would be a very small one, if 
that at all, given the numbers. You pointed out that the 
commanders have to make sure that families are not separated 
for too long. I remember when I was on the Armed Services 
Committee in the House, we were concerned about husband and 
wife being sent into combat in those years, and that took some 
work because there were a lot of people that it affected.
    So, I do not have any questions except to thank the panel 
for clearly, Jo Becker, your long labors in this field and, to 
my friends from the military, for looking at this and giving us 
a really honest assessment and giving us a heads-up on what 
could be a problem and explaining to us that there are 
occasions every day in the military where looking after 
particular personnel problems does occur. But this appears to 
be a smaller one than some of the others. I greatly appreciate 
it.
    I do not have anything else today. I will turn it over to 
Senator Helms.
    Senator Helms. Thank you, Madam Chairman.
    A question of each of you, and I have one question. Let me 
ask you first, Ms. Becker. Have you read the executive branch's 
proposal for three understandings and one declaration?
    Ms. Becker. Yes, I have.
    Senator Helms. Do you agree with it?
    Ms. Becker. My personal preference would be if the Defense 
Department would be willing to go just a little bit further and 
exclude 17-year-olds from combat units altogether. But on 
balance, certainly the understandings around the relationship 
between the protocol and the Convention on the Rights of the 
Child seem very reasonable given the current status of the 
Convention here in the United States. And I believe that the 
interpretation around feasible measures is one that also makes 
sense for the U.S. military. So, although, as I said, I would 
prefer operationally for the Defense Department to be able to 
go a little bit further, I think that what they have proposed 
is reasonable.
    Senator Helms. How about you, Admiral?
    Mr. Carroll. I have not read the statement, no.
    Mr. Fanning. I have not seen it either, Senator.
    Senator Helms. Obviously, she has, but make a copy, if you 
will, and hand it to them before they leave. I would ask you to 
write to me--and I will make it available for the Committee's 
records--whether you would be willing to agree to this proposal 
by the executive branch because I need to know. If you will do 
that, I will appreciate it. You will be handed a copy of this 
as you leave.
    [The following reply from Mr. Fanning was subsequently 
provided.]

    In reply to your question before the Senate Foreign Relations 
Committee, I believe that clarification of the terms ``feasible'' and 
``direct part in hostilities'' is acceptable provided that is the way 
that other countries, and their courts, interpret those words in their 
implementation of the Protocol. As I said before, I am in favor of the 
adoption of the Protocol for the reasons set forth by DOD. However, I 
have some continuing concerns about the possibility that a foreign or 
international criminal court would not agree with our interpretation of 
the Protocol in their prosecution of a U.S. serviceperson. I expect 
that there is a low probability that this will ever happen, but no U.S. 
serviceperson should ever have to stand trial because there is a 
difference of opinion between two sovereigns as to the meaning of 
certain words.

    Senator Helms. Madam Chairman, I have nothing further, and 
I commend you on the way you have conducted this meeting.
    Senator Boxer. Thank you very much.
    Again, our thanks to everyone. I am very hopeful that with 
Senator Biden and Senator Helms working together, we can really 
move this forward. I thank you so much for coming here today.
    The Committee stands adjourned.
    [Whereupon, at 11:53 a.m., the Committee was adjourned.]
                              ----------                              


                  Statements Submitted for the Record


           Prepared Statement of Senator Russell D. Feingold

    Madame Chair, thank you for calling this hearing today on two 
important protocols to the Convention on the Rights of the Child. One 
protocol addresses the sale of children, child prostitution and child 
pornography. The second protocol addresses the problem of child 
soldiers. Taken together, these two protocols address some of the most 
egregious human rights violations experienced by children in the world 
today.
    Having traveled extensively in Africa as Chairman of the 
SubCommittee on African Affairs, I have seen the devastating effects of 
armed conflict on children in Angola, the Democratic Republic of Congo, 
and Sierra Leone. I have also witnessed the heartbreaking exploitation 
of children in many other countries, particularly in societies where 
entrenched poverty and despair make children particularly vulnerable to 
neglect and abuse.
    I am pleased that the Senate is considering these treaties, and I 
look forward to hearing how they will strengthen the international 
regime to protect all children from violence and exploitation.

                                 ______
                                 

     Prepared Statement of Cris R. Revaz, American Bar Association

    The American Bar Association appreciates this opportunity to 
communicate its views on the issue of U.S. ratification of the Optional 
Protocol on the Sale of Children, Child Prostitution and Child 
Pornography and the Optional Protocol on the Involvement of Children in 
Armed Conflict. My name is Cris Revaz. I am a practicing attorney at 
the firm of Hale and Dorr in Washington D.C. and I co-chair the 
International Human Rights Committee of the ABA's Section of 
International Law and Practice.
    The American Bar Association supports U.S. ratification of the two 
Optional Protocols to the UN. Convention on the Rights of the Child 
(``CRC''). Indeed, the ABA has long supported U.S. actions to enhance 
legal protections to children throughout the world. The ABA has called 
for ratification of the CRC on several occasions, as well as the Hague 
Conventions on Abduction, Intercountry Adoption, and Parental 
Responsibility and Protection of Children. The ABA has endorsed the 
abolition of economic exploitation of children and enforcement of child 
labor protections, and the protection of the legal rights of immigrant 
children. Its work, particularly through the ABA Center on Children and 
the Law, also has included special attention to the issue of child 
victims of sexual exploitation. Our call for ratification of these two 
Optional Protocols extends a long tradition of child advocacy to two of 
the most heinous human rights abuses on the planet.
    The Optional Protocol on the Sale of Children, Child Prostitution 
and Child Pornography (``OP-SC''), which entered into force on January 
18, 2002, takes on the modern-day slavery and exploitation of children. 
This scourge includes a growing, global, multi-billion dollar industry 
that is now a principle bedrock of transnational crime--trafficking for 
sexual exploitation and forced labor. Thanks to the public debate that 
presaged enactment of the Trafficking Victims Protection Act, as well 
as ongoing federal and law enforcement initiatives, media reports and 
continuing pressure from the NGO community, the public is more aware of 
the scope and severity of the trafficking phenomenon. However, a 
sometimes overlooked aspect of this problem is the increasing number of 
innocent children, who are bought and sold into a living hell of 
degradation, torture, rape, disease, and alienatioa The OP-SC deals 
with the trafficking of children by making punishable its underlying 
legal act, the sale of a child. In addition, it separately extends to 
two other insidious and related aspects of commercial sexual 
exploitation--child prostitution and child pornography.
    The Optional Protocol on the Involvement of Children in Armed 
Conflict (``OP-AC''), which entered into force February 12, 2002, 
addresses the despicable use of children to fight and die in numerous 
battlefronts across the globe. It sets the age of eighteen as the 
minimum age requirement for direct participation in armed conflict and 
conscription, i.e., forced recruitment.
      the underlying problems addressed by the optional protocols
The Sale of Children for Commercial Sexual Exploitation or Forced Labor
    UNICEF estimates that one million children are forced into 
prostitution in South Asia alone, and another one million worldwide. 
The child victims of commercial sexual exploitation are both boys and 
girls, although they are primarily girls between 10 and 18 years of 
age. Research suggests that the age of the children involved is 
decreasing, and sexual exploitation of children as young as 6 has been 
documented. Illicit trafficking is expanding through the use of child 
pornography on the Internet which attracts sex tourists and pedophiles. 
Children are favored targets for commercial sexual exploitation, and 
certain disadvantaged groups--minorities, refugees, street children, 
poor children, juveniles from broken homes, and disabled minors--are 
often the most vulnerable to exploitation. In addition, children are 
trafficked out of orphanages for illegal adoptIon or prostitution.
    The United States certainly is not immune to the trafficking and 
exploitation of children for sexual purposes or forced labor. The U.S. 
State Department conservatively estimates that 50,000 women and 
children are trafficked into the United States annually, primarily from 
Latin America, the former Soviet Union and Southeast Asia. Roughly half 
of this amount end up in coerced or bonded sweatshop labor and domestic 
servitude, and the rest are sexually exploited. Trafficking of children 
is highly lucrative--a single trafficked child can earn a trafficker as 
much as $30,000 or more in fees.
    A recent landmark study on the commercial sexual exploitation of 
children in the United States by Dr. Richard Estes and Dr. Alan Weiner 
of the University of Pennsylvania conservatively estimates that 17,000 
children make up these 50,000 victims, with half of this group 
exploited for sex and the other half exploited for labor. According to 
ECPAT-International, there are numerous reports of trafficking of 
children into the United States, but the cases are difficult to verify 
because of the underground and illegal nature of the trade.
    Children sold or trafficked into sexual servitude often suffer 
extreme physical and mental abuse, including rape, torture, starvation, 
imprisonment, death threats, and physical brutality. They are 
continually exposed to deadly diseases, including HIV/AIDS, and 
experience stigmatization, depression, and post-traumatic shock. 
Children sold into domestic servitude, bonded sweatshop labor, and 
other industries are subjected to violence and may be literally worked 
to death.
Child Prostitution
    UNICEF estimates that there are between 90,000 and 300,000 minors 
engaged in prostitution in the United States. ECPAT believes the figure 
could be substantially higher. According to a 1990 Department of 
Justice study, over 577,000 children annually were runaways or had been 
kicked out of their homes. The Estes report found that children and 
youth older than 12 years are prime targets for sexual exploitation, 
and are most often runaways or homeless youth. It further found that 
approximately 30% of shelter youth and 70% of street youth engage in 
prostitution to meet their daily needs for food, shelter, drugs and the 
like. Some 80% of child prostitutes were sexually abused at home.
    The Estes report found that up to 70% of female juvenile 
prostitutes were raped by their customers an average of 31 times per 
prostitute. According to ECPAT-USA, child prostitutes experience 
depression, self destructive tendencies, the inability to enter 
mainstream society, and ostracism. Child victims of prostitution may 
experience a lifetime of recurrent illnesses, such as venereal 
diseases, fertility problems, pregnancy complications, malnutrition and 
tuberculosis and severe mental illness.
Child Pornography
    Thanks to the internet, strong demand and ready supply, child 
pornography is on the rise. According to ECPAT-USA, there has been a 
major increase in the commercial production of child pornography since 
the early 1970s and computer bulletin boards and other on-line services 
have become a major avenue. Regionally, the most likely source of 
pornographic films and photos is now Eastern Europe and Southeast Asia, 
with Japan the largest producer and consumer of child pornography in 
the world. In August, 2001, the FBI and U.S. Customs shut down an 
internet company based in Ft. Worth, Texas, that provided its 250,000 
subscribers with access to sexual images of adults and children through 
websites based in Indonesia and Russia, and arrested 100 people. 
According to authorities, the company grossed as much as $1.4 million 
in a single month. The number of children involved is unknown, but a 
child as young as 4 years old was identified. The FBI estimates that 
over 50% of all child pornography seized in the United States depicts 
boys.
Child Soldiers
    The Coalition to Stop the Use of Child Soldiers reports that 
approximately 300,000 children in over 40 countries worldwide are 
engaged in military conflict. Another 500,000 are recruited into 
paramilitary organizations, guerrilla groups and civil militias in more 
than 85 countries. The exact number, ages, and distribution of child 
soldiers are extremely difficult to calculate because of the efforts to 
hide the use of child soldiers, the tendency of many youth to lie about 
their true age, because armed opposition groups do not operate under 
public scrutiny, and because of the constantly changing locations and 
intensity of armed conflicts. According to UNICEF data, armed conflict 
killed more than two million children in the decade between 1986-1996, 
injured 6 million, traumatized over 10 million and left more than 1 
million orphaned.
    Children are easily manipulated and drawn into violence they are 
unable to resist or understand largely because of their emotional and 
physical immaturity. The most vulnerable children are those who are 
poor, separated from their families, displaced from their homes, living 
in a combat zone, or with limited access to education. Serving as 
frontline grunts, sexual servants, spies, and porters, child soldiers 
are exposed to serious injury and death, as well as disease, physical 
assault, and rape.
    As soldiers, both boys and girls may be sent to the front lines of 
combat or into minefields ahead of other troops. In certain countries, 
such as El Salvador, Ethiopia and Uganda, nearly a third of the child 
soldiers were reported to be girls. Child soldiers have been used for 
suicide missions and have been forced to commit atrocities against 
their own family and neighbors. In some places, young soldiers have 
been given drugs to increase their courage and dull their sensitivity 
to pain. Because of their inexperience and lack of training, child 
soldiers suffer far higher casualty rates than adult soldiers. Those 
who survive may be permanently disabled, with the most common injuries 
being loss of hearing, loss of limbs, and blindness. Others bear 
psychological scars from being forced to both commit and witness 
horrific atrocities. The difficulty of demobilizing and reintegrating 
child soldiers into peacetime society and values is one of the greatest 
challenges facing a number of post-conflict societies.
 the protocols in the context of international human rights agreements
The OP-SC
    The OP-SC is not the first international instrument to condemn 
trafficking or other modern-day forms of slavery. There are a number of 
such agreements, some dating back to the early 20th century, such as 
the ``1904 International Agreement for the Suppression of White Slave 
Traffic.'' Others include the 1926 Slavery Convention; the 1930 ILO 
Forced Labor Convention; the 1957 Supplementary Convention on the 
Abolition of Slavery, the Slave Trade and Institutions and Practices 
Similar to Slavery; and the 1949 Convention for the Suppression of the 
Traffic in Persons and of the Exploitation of the Prostitution of 
Others. While many of these conventions took laudable stances against 
slavery-like practices or forced labor, they often suffered from 
imprecise definitions and offered few tools for combating the problem. 
The result was that the international community remained without a 
clear set of comprehensive, meaningful standards, the agreements were 
largely ignored, and the practices festered.
    In recent years, with the commercial sexual exploitation of women 
and children exploding, the U.N. has struggled to more effectively deal 
with the problem. In 2000, after six long years of negotiations, it 
adopted the OP-SC. Later that same year, the U.N. also adopted the 
Protocol To Prevent, Suppress and Punish Trafficking in Persons, 
Especially Women and Children, to the U.N. Convention Against 
Transnational Organized Crime. This Protocol offers the first 
comprehensive definition of trafficking, one that incorporates notions 
of coercion, deception or fraud in the recruitment phase, and an 
emphasis on the exploitation victims suffer in the slavery phase. It 
also articulates a comprehensive enforcement strategy.
    By comparison, sex trafficking per se is not the express focus of 
the OP-SC; yet the OP-SC clearly aims to make punishable its underlying 
acts, methods and outcomes. It does so by being the first international 
instrument to define and require criminalization of the sale of 
children, child prostitution and child pornography. By encompassing 
attributes of trafficking without limiting its terms as such, the OP-SC 
can be a tool against trafficking even as it makes actionable a broader 
spectrum of commercial sexual exploitation. In addition, just as ILO 
182 did with the worst forms of child labor, the OP-SC focuses only on 
commercial sexual exploitation as to children.
    More directly, the OP-SC advances clear prohibitions in the CRC 
against sexual exploitation and abuse, including prostitution and 
involvement in pornography, and the sale, trafficking and abduction of 
children, as well as the right to be protected from ``economic 
exploitation and from performing any work that is likely to be 
hazardous or to interfere with the child's education, or to be harmful 
to the child's health or physical, mental, spiritual, moral or social 
development.'' Comparable language is found in ILO Convention 182 on 
the Worst Forms of Child Labor, whose scope encompasses trafficking, 
and which the United States was among the first countries to ratify.
The OP-AC
    Under the CRC, the general definition of a child is any person 
under the age of 18. However, Article 38 of the CRC, governing children 
and armed conflict, uses 15 as the minimum age for recruitment and 
participation in hostilities. This is the only explicit departure from 
the general definition of a child based on the 18-year minimum age.
    Other international legal instruments reflect the view that 18 
should be the minimum age for involvement in military conflict. The 
African Charter on the Rights and Welfare of the Child adopted shortly 
after the CRC defines a child as being up to 18 years (without 
exception), and Article 22(2) provides: ``States Parties to the present 
Charter shall take all necessary measures to ensure that no child shall 
take a direct part in hostilities and shall refrain, in particular from 
recruiting any child.'' In December, 1995, the 26th International 
Conference of the Red Cross and Red Crescent passed a recommendation 
whereby parties to armed conflict must take every feasible step to 
ensure that children under 18 do not participate in hostilities.
    In addition, ILO Convention No. 182, adopted unanimously by the 174 
members of the ILO, requires each ratifying Member to take immediate 
and effective measures to secure the prohibition and elimination of the 
worst forms of child labor as a matter of urgency; defines a ``child'' 
as all persons under the age of 18, and ``the worst forms of child 
labor'' as, inter alia, ``forced or compulsory recruitment of children 
for use in armed conflict'' and ``work which, by its nature or the 
circumstances in which it is carried out, is likely to harm the health, 
safety or morals of children.''
    Several years after the CRC's adoption, the anomaly between its 
general definition of a child as under 18 and the age 15 minimum for 
armed conflict, led the U.N. Commission on Human Rights to establish an 
open-ended inter-sessional working group to elaborate, as a matter of 
priority, a draft optional protocol to the CRC that would raise the 
minimum age for recruitment and participation in hostilities to 18.
    The practices addressed by both protocols violate longstanding 
human rights principles embraced by the international community and 
extended to all persons. The Universal Declaration of Human Rights, the 
International Covenant on Civil and Political Rights (which the United 
States has ratified), the CRC and the International Covenant on 
Economic, Social and Cultural Rights (both of which the United States 
has signed), proclaim a range of human tights that are mocked by the 
sale of children, child prostitution and child pornography, and the use 
of child soldiers. Such rights include, among others, the right to 
life; the right not to be tortured or subjected to cruel and degrading 
treatment; the right to personal liberty and security of person and to 
be free from physical violence; the right to freedom of choice of 
residence and movement; the right to consensual marriage; the right to 
work and just, fair, and safe working conditions; and the right to 
education, health and social services.
             principal provisions of the optional protocols
Principal Provisions of the OP-SC
    The key elements of the OP-SC relate by varying degrees to the 
widely-accepted mantra for fighting commercial sexual exploitation--
prevention, prosecution and punishment, and protection.
    The thrust of the OP-SC is prosecution and punishment. It requires 
states parties to prohibit the ``sale of children, child prostitution 
and child pornography,'' and clearly defines these terms. (Art. 2) It 
makes actionable, under a state party's criminal or penal law, certain 
broadly-defined practices relating to these acts, including attempts, 
complicity, or participation, and requires punishment by appropriate 
penalties that take into account the ``grave nature'' of the offense. 
(Art 3) These provisions are to apply both domestically and 
internationally, as well as to individuals and organizations.
    Why is the OP-SC's demand for strong national legislation 
important? According to the Protection Project, as of one year ago only 
48 countries had laws that criminalized trafficking for sexual 
purposes. While many countries have laws that prohibit the procuration 
of women and children for prostitution or forced labor, they are rarely 
enforced. The fact is that even where laws exist, law enforcement 
personnel and prosecutors often do not give high priority to 
trafficking-related offenses. Quite often, penalties are so weak as to 
be ineffective, and progress is stifled by complicity and corruption in 
law enforcement.
    The OP-SC sets forth the bases for states parties to assert 
jurisdiction over actionable practices. (Art. 4) It requires each party 
to take necessary measures to establish its jurisdiction over such 
offenses when the offense is committed in its territory, and also 
provides for jurisdiction when either the alleged offender is a 
national of that state or habitually resides there, or the victim is a 
national of that state. It also clarifies and strengthens the ability 
of states parties to pursue extradition of offenders. (Art 5) These 
provisions are helpful in facilitating the prosecution of offenders 
regardless of their location.
    With respect to prevention, the OP-SC mandates that states parties 
take certain legal and policy measures to prevent the sale of children, 
child prostitution and child pornography, and must pay particular 
attention to protecting those children who are especially vulnerable to 
the proscribed practices. (Art. 9) It further mandates promoting public 
awareness through education and training about the preventative 
measures and harmful effects of these offenses, and seeks the 
involvement of the community and children and child victims in this 
campaign. These provisions, which might foster internationally the 
sorts of programs the U.S. is already required to establish under the 
new trafficking law, also are welcome. According to the Protection 
Project, few countries have developed programs to prevent trafficking 
by educating women and children about how to avoid being trafficked, or 
to educate men and boys against the sexual exploitation of women, or to 
educate government officials about prevention.
    Admittedly, the protection and assistance provisions are not as 
strong as they might be. In particular, various NGOs expressed a 
legitimate concern that the OP-SC did not go far enough to ensure the 
non-criminalization of child trafficking victims. Nonetheless, the 
protection language may be of significant benefit to sexually exploited 
children. States parties are to pursue ``all feasible measures'' in 
rendering appropriate assistance to victims of such offenses, including 
their ``full social reintegration, and their full physical and 
psychological recovery.'' (Art. 9.3) Child victims are to have access 
to adequate procedures to seek, without discrimination, compensation 
for damages from those legally responsible. (Art. 9.4). Moreover, 
states parties must adopt ``appropriate measures'' to protect the 
rights and interests of child victims at all stages of the criminal 
justice process. (Art. 8.1)
    This last provision enumerates numerous duties for states parties, 
such as the duties to: recognize the vulnerability of child victims and 
adapt procedures to recognize their special needs; inform child victims 
of their rights; allow the views, needs, and concerns of child victims 
to be presented and considered in proceedings where their personal 
interests are affected; provide appropriate support services to child 
victims; protect the privacy and identity of child victims and act to 
avoid disseminating information that could identify child victims; 
protect child victims from intimidation and retaliation; and avoid 
unnecessary delay in disposing of cases and executing compensation 
orders or decrees for child victims. As a guiding principle, Article 
8.1 states that where the judicial treatment of child victims is 
concerned, the best interest of the child must constitute the primary 
consideration.
    In addition, our new U.S. trafficking law helps address the non-
criminalization of child victims by providing that while in federal 
custody and to the extent practicable, victims of severe forms of 
trafficking (which include children) shall not be detained in 
facilities inappropriate to their status as crime victims.
    Importantly, the OP-SC seeks a cooperative global approach to 
ending commercial exploitation of children. It requires that states 
parties ``afford one another the greatest measure of assistance in 
connection with investigations or criminal or extradition 
proceedings,'' including obtaining evidentiary support. (Art. 64) It 
also calls for all necessary steps to strengthen international 
cooperation by multilateral, regional, and bilateral arrangements for 
the prevention, detection, investigation, prosecution, and punishment 
of those that commit acts involving the sale of children, child 
prostitution, child pornography, and child sex tourism. (Art. 10.1)
Principal Provisions of the OP-AC
    The OP-AC extends to eighteen years-old the minimum age requirement 
for direct participation in armed conflict and conscription, i.e., 
forced recruitment. It states that governments ``shall take all 
feasible measures to ensure that members of their armed forces who have 
not attained the age of eighteen years do not take a direct part in 
hostilities.'' (Art. 1) It provides that governments ``shall ensure 
that persons who have not attained the age of eighteen years are not 
compulsorily recruited into their armed forces.'' (Art. 2) The OP-AC 
forbids rebel or other non-governmental armed groups under any 
circumstances from recruiting persons under the age of eighteen years 
or using them in hostilities. Article 4(1) Governments are required to 
take all feasible measures to prevent the recruitment and use of 
children by such groups, including the criminalization of such 
practices. Article 4(2)
    The OP-AC departs from the age eighteen minimum, however, with 
respect to voluntary recruitment into a state's armed forces. 
Governments must raise the minimum age for voluntary recruitment beyond 
the current minimum of fifteen, as established under Article 38(3) of 
the CRC. (Art. 3) This means the minimum age for voluntary recruitment 
is sixteen. Governments that recruit persons under eighteen must 
maintain a series of safeguards, which ensure such recruitment is 
genuinely voluntary and conducted with the informed consent of the 
person's parents or legal guardians, that recruits are fully informed 
of the duties involved in military service, and proof of age is 
established.
    With respect to implementation, the OP-AC requires governments to 
``take all necessary legal, administrative and other measures to ensure 
the effective implementation and enforcement'' of the Protocol, and 
must take ``all feasible measures to ensure'' demobilization of 
children recruited or used in violation of the Protocol, and ``when 
necessary,'' provide appropriate rehabilitation and reintegration 
assistance. (Art. 6)
    It is important to note the relationship of both Optional Protocols 
to the CRC, from which they originate. The CRC is the most widely-
acclaimed human tights treaty in history, with 191 countries now having 
ratified it. Only the U.S. and Somalia have not done so. On three 
separate occasions, the ABA has called for U.S. ratification, going so 
far in 1994 as to suggest certain appropriate reservations, 
understandings and declarations. The ABA remains hopeful that someday 
the United States will join other members of the international 
community in seeking to realize the CRC's universal principles for the 
rights and protection of children. Until then, however, there is no 
legal impediment to ratifying either the OP-SC or the OP-AC. Both 
Protocols expressly provide they may be signed and ratified by 
countries regardless of whether they have ratified the CRC. This 
language was actually negotiated at the behest of the United States, 
and the ``freestanding'' nature of the Optional Protocols are supported 
by a legal opinion from the U.N. Office for Legal Affairs.
 impact of ratification on u.s. law and opportunity for u.s. leadership
    In its July 2000 report to Congress, the State Department did a 
very thorough job of examining the impact of both Optional Protocols on 
U.S. law. With respect to the OP-SC, Congress subsequently enacted the 
Trafficking Victims Protection Act, which significantly enhances our 
ability to deal with the commercial sexual exploitation of children.
    Briefly reviewing State's analysis, several provisions of Title 18, 
among other laws, satisfy the OP-SC's requirement to make punishable 
the offering, delivering or accepting of a child for the purpose of 
sexual exploitation, or for forced labor. Sec. 1591, added by the new 
trafficking law, provides punishment for defendants who knowingly 
recruit, entice, harbor, transport, provide or obtain a person knowing 
that either force, fraud, or coercion will be used to cause the person 
to engage in a commercial sex act, or the person is under 18 and will 
be caused to engage in a commercial sex act. Depending on the age of 
the child or whether force, fraud or coercion was involved, penalties 
under this provision can include prison for any term of years to life. 
Sec. 2423(a) prohibits the transport in interstate or foreign commerce 
of any individual under age 18 ``with the intent that the individual 
engage in prostitution and or in any sexual activity for which any 
person can be charged with a criminal offense, or attempts to do so.'' 
Penalties include fines and prison term up to 15 years. Sec. 2251A 
criminalizes the selling or buying of children for pornographic 
purposes. Penalties include fines and 20 years to life.
    Where the sale of the child is for forced labor, Sec. 1589, part of 
the new trafficking law, punishes those who knowingly provide or obtain 
the labor services of another by use of threats of serious harm or 
physical restraint against a person, or by a scheme or plan intended to 
make the person believe that if they did not perform the labor or 
services, they would suffer physical restraint or physical harm. The 
penalties are fines and prison terms of up to 20 years, and life in 
prison under certain aggravating circumstances.
    In addition, the involuntary servitude statutes, Sec. 1581 
(peonage), Sec. 1583 (enticement into slavery), and Sec. 1584 (sale 
into involuntary servitude) may also be used to prosecute the sale of a 
child or any person for forced labor. Sec. 1590, also part of the 
trafficking statute, provides punishment for defendants who knowingly 
harbor, transport, or are otherwise involved in obtaining a person for 
peonage, slavery, or involuntary labor or services. These provisions 
carry fines and prison terms of up to 20 years, and life in prison 
under certain aggravating circumstances. Title 8, Sec. 1328 also 
prohibits importing any alien into the United States for prostitution 
or other immoral purposes.
    Section 404 of the Hague Intercountry Adoption Act, which imposes 
fines up to $250,000 and/or 5 years in prison, meets the OP-SC's 
prohibition on the sale of children in connection with improperly 
inducing consent as an intermediary for adoption.
    State laws prohibit prostitution, pimping, pandering, procuring and 
other related activities. And a provision of the Mann Act, 18 U.S.C. 
Sec. 2421, generally prohibits transporting a person across foreign or 
state borders for purposes of prostitution, and a separate provision, 
Sec. 2423(a), specifically prohibits transportation across foreign or 
state borders of any individual under 18 with the intent that the 
``individual engage in prostitution or in any sexual activity for which 
any person can be charged with a criminal offense, or attempts to do 
so.'' The punishment is fines and/or imprisonment up to 15 years. Other 
provisions with comparable penalties prohibit coercing and enticing 
persons to travel across state lines for prostitution or for any sexual 
activity for which any person may be charged with a crime (Sec. 2422), 
and travel with intent to engage in any sexual act with minor 
(Sec. 2423(a)).
    In addition, federal and state criminal statutes address the OP-
SC's prohibition on child pornography. Federal law prohibits the 
production, distribution, receipt and possession of child pornography 
if produced using materials transported across interstate or foreign 
commerce. (18 U.S.C. Sec. 2251-2252(A)). Penalties depend on the 
provision, but can run up to 30 years or even life in prison. And each 
state has its own laws addressing child pornography.
    With respect to the OP-AC, State concludes current U.S. law meets 
its standards. Specifically, the U.S. does not permit compulsory 
recruitment of any person under 18 for any military service. Under 10 
U.S.C. Sec. 505(a), the United States does not accept voluntary 
recruits under age 17. And the United States is prepared to take all 
feasible measures to ensure that persons under 18 do not take a direct 
part in military hostilities, and can do so without undermining 
military readiness.
    Although both Optional Protocols are thus consistent with U.S. law, 
the Administration has recommended a number of understandings and 
declarations in connection with U.S. ratification. These understandings 
and declarations were first presented subsequent to the ABA's policy 
urging ratification of the two Optional Protocols, and so were not 
subject to the ABA's formal review process. However, in my personal 
view, these understandings or declarations are generally appropriate 
and noncontroversial.
    Notwithstanding that U.S. law already reflects the Protocols' 
requirements, U.S. ratification is critical to the extent the U.S. 
wants to demonstrate real global leadership on these issues. The 
success of both Protocols will be judged by their implementation rather 
than ratification. However, it is only through ratification that the 
United States can help compel a truly global effort towards realizing 
the objectives of these Protocols.
    The horror of trafficking, child prostitution, child pornography 
and child soldiering is the anguish and suffering inflicted upon 
children preyed upon and betrayed by the very people they look to for 
protection. These children are robbed of their freedom, their 
childhood, their hope and their humanity, and there is nothing more 
wrong than that, legally or otherwise. The United States should do 
everything in its power to abolish these evils, and back up 
ratification of both protocols with strong, decisive action, taken in 
concert with other nations.
    Thank you.
                               __________

 Responses to Additional Questions for the Record Submitted to Various 
                   Witnesses and Government Agencies


     Responses of the Departments of State, Defense and Justice to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

    Question 1. In submitting the Protocols to the Senate, the Clinton 
administration recommended that the Senate include several 
understandings and declarations in the resolution of advice and 
consent. Does the Bush administration support these recommendations 
without change?

    Answer. Yes, the Bush administration supports the Understandings 
and Declarations presented in the transmittal package. We do not seek 
any changes to the language provided.

    Question 2. Was the testimony today coordinated and approved by the 
affected departments of the Executive Branch?

    Answer. Yes. The testimony also reflects the independent views and 
judgments of the various affected departments, all of which supported 
these treaties.

    Question 3. Are there any confidential or classified side 
agreements or understandings between the United States and any other 
signatories or negotiating partners of which the Committee should be 
aware?

    Answer. No.

    Question 4. Are there any statements by the U.S. delegation 
pertinent to the meaning or interpretation of treaty terms which are 
not contained in the Executive Branch's submittal to the Senate?

    Answer. No. All significant statements are reflected in the 
Executive Branch's submittal to the Senate, or in testimony on behalf 
of the treaties.

    Question 5. Are there any significant statements in the preparatory 
work of the treaty (traveux preparatories) to which you would direct 
the Committee's attention?

    Answer. All significant statements are reflected in the Executive 
Branch's submittal to the Senate, or in testimony on behalf of the 
treaties.

    Question 6. Please explain why, as a matter of law, the United 
States may become a party to the Protocols even though it is not a 
party to the underlying Convention on the Rights of the Child?

    Answer. As discussed in the Executive Branch's submittal to the 
Senate, Article 9 of the Children in Armed Conflict Protocol is subject 
to ratification or open for accession by any State, i.e., it is not 
limited to parties to the Convention on the Rights of the Child. Thus, 
the United States is eligible to become a party to the Children in 
Armed Conflict Protocol even though it has not ratified the Convention.
    Similarly, Article 13 of the Sale of Children Protocol is subject 
to ratification or open for accession by any State that is a party to 
the Convention on the Rights of the Child, or has signed it. Thus, the 
United States is eligible to become a party to the Protocol because it 
signed the Convention in February of 1995.
    To reflect the fact that both Protocols are independent 
international agreements, the following understanding has been 
recommended to accompany the U.S. instrument of ratification for each 
Protocol:

          ``The United States understands that the Protocol constitutes 
        an independent multilateral treaty, and that the United States 
        does not assume any obligations under the Convention on the 
        Rights of the Child by becoming a party to the Protocol.''

    Question 7. Each Protocol provides for amendments. Does the 
Executive Branch commit to submit amendments approved by the UN General 
Assembly to the Senate for its advice and consent?

    Answer. Any amendment or modification of the Protocols would enter 
into force with respect to the United States only pursuant to the 
treaty-making power of the President, by and with the advice and 
consent of the Senate, as set forth in Article II, Section 2, clause 2 
of the Constitution of the United States.

    Question 8. Each Protocol requires States Parties to submit 
periodic reports to the Committee on the Rights of the Child 
established by the underlying Convention. Does the Committee have any 
enforcement power?

    Answer. No. As explained in the Executive Branch's submittal to the 
Senate the Protocols grant the Committee on the Rights of the Child no 
authority other than receiving reports and requesting additional 
information relevant to the implementation of the protocols. During the 
negotiations, States rejected proposals for language that would have 
permitted the Committee to, inter alia, hold hearings, initiate 
confidential inquiries, conduct country visits, and transmit findings 
to the concerned State Party.
                                 ______
                                 

    Responses of the Departments of State and Justice to Additional 
   Questions for the Record Submitted by Senator Joseph R. Biden, Jr.

     questions with regard to the protocol on the sale of children
    Question 1. What is the legal basis for ``suspending'' an 
obligation, as envisaged by the proposed declaration with regard to 
Article 4(1)? What precedents are there in recent U.S. practice for 
such an act?

    Answer. The legal basis for the proposed declaration would be the 
condition in the Senate's resolution of advice and consent and the 
decision of the President to ratify the Protocol subject to that 
condition. Since existing United States law does not provide for 
criminal jurisdiction over some of the offenses identified in Article 
3(1) when such offenses are committed on board a ship or aircraft 
registered in the United States, legislation will be necessary to fill 
the gaps. In order to proceed with ratification before enactment of 
that legislation and to protect the United States against a charge of 
non-compliance in regard to Article 4(1) pending enactment of the 
legislation, the declaration would make clear that until the condition 
was fulfilled, the United States would not be bound by the obligation 
in Article 4(1) to the extent that its law was not fully in compliance 
with that article.

    Question 2. Article 5(2) provides that a State Party may consider 
this Protocol as a legal basis for extradition with respect to offenses 
covered by it in a case where it has no extradition treaty with the 
requesting State Party. The United States generally does not extradite 
criminal suspects in the absence of a bilateral extradition treaty. 
Does the Executive Branch intend to require the existence of a 
bilateral extradition treaty in cases under this Protocol?

    Answer. Yes. The United States would not use these Conventions as 
an independent legal basis for extradition from the United States in 
cases where the United States has no extradition treaty with another 
State Party seeking extradition. We will continue our practice of 
extraditing persons under the authority of bilateral extradition 
treaties, in conjunction with multilateral conventions, and other 
agreements as applicable.

    Question 3. The proposed understanding with regard to Article 2(c) 
focuses on the definition of child pornography in that article. The 
understanding states that the term means ``visual representation'' of a 
child, ``engaged in real or simulated sexual activities.'' Is this 
``visual representation'' standard the same standard used in U.S. law?

    Answer. Yes. As is explained more fully in the Executive Branch's 
submittal to the Senate, 18 U.S.C. Sec. 2251 establishes as criminal 
offenses the use, enticement, employment, coercion or inducement of any 
minor to engage in ``any sexually explicit conduct for the purpose of 
producing any visual depiction'' of that conduct. That provision 
further prohibits the transportation of any minor in interstate or 
foreign commerce with the intent that the minor engage in sexually 
explicit conduct for the purpose of producing any visual depiction of 
such conduct. Parents, legal guardians and custodians are punishable 
under this provision if they permit a minor to engage in sexually 
explicit conduct for the purpose of producing a visual depiction of 
that conduct and the parent or guardian knows or has reason to know it 
will be transported or has been transported in interstate or foreign 
commerce. The provision also subjects to criminal penalty those who 
produce and reproduce the offending material, as well as those who 
advertise seeking/offering to receive such materials or seeking/
offering participation in the visual depictions of minors engaged in 
sexually explicit conduct.
    Federal law also prohibits (1) the transfer, sale, purchase and 
receipt of minors for use in production of visual depictions of minors 
engaged in sexually explicit conduct, 18 U.S.C. Sec. 2251A; (2) 
knowingly transporting, shipping, receiving, distributing, or 
possessing any visual depiction involving a minor in sexually explicit 
conduct, 18 U.S.C. Sec. Sec. 2252 and 2252A; (3) the use of a minor to 
produce child pornography for importation into the United States, and 
the receipt, distribution, sale or possession of child pornography 
intending that the visual depiction will be imported into the United 
States, 18 U.S.C. Sec. 2260. For purposes of these statutes, minor is 
defined as anyone under age 18. 18 U.S.C. Sec. 2256(1).
    Sexually explicit conduct is defined in these federal statutes as 
``actual or simulated--(A) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether between 
persons of the same or opposite sex; (B) bestiality; (C) masturbation; 
(D) sadistic or masochistic abuse; or (E) lascivious exhibition of the 
genitals or pubic area of any person.'' 18 U.S.C. Sec. 2256(2).
    Further, each state has enacted laws addressing child pornography. 
The precise scope of these statutes vary from state to state; however, 
they all prohibit the visual depiction by any means of a child engaging 
in sexually explicit conduct. While the exact wording of the statutes 
may differ, all state statutes address the following three areas: (1) 
production: employment or use of a minor to engage in or assist in any 
sexually explicit conduct for the purpose of producing a depiction of 
that conduct; (2) trafficking: distributing, transmitting or selling 
child pornography; and (3) procurement: inducing or persuading a minor 
to be the subject of child pornography.
    Hence, both federal and state law cover the ``visual 
representation'' of a child, ``engaged in real or simulated sexual 
activities.''

    Question 4. What is the rationale for the proposed understanding 
related to Article 2(a)? The stated purpose is that it is needed to 
clarify the definition. What about the definition is unclear? What 
circumstances is the proposed understanding designed to address?

    Answer. The Protocol broadly defines the sale of a child as a 
transfer from a person or group of persons to another for remuneration 
or other consideration. Since this could conceivably be construed to 
include lawful transfers, the United States' understanding is intended 
to make clear that the definition is only intended to reach transfers 
where the person receiving the child does not have a lawful right to 
custody and, through the transfer, gains the ability to exercise 
control over the child.

    Question 5. Article 3(1) requires parties to ensure that the acts 
covered by the article are ``fully covered'' under its criminal or 
penal law, whether these offenses are committed domestically or 
transnationally.'' What does ``committed trasnationally'' mean in this 
context?

    Answer. The terms ``domestically or transnationally'' need to be 
read together. During the negotiations some delegations proposed the 
adoption of universal jurisdiction for the Protocol. However, 
delegations finally concluded that the assertion of such broad 
jurisdiction for the offenses covered by the Protocol was not 
appropriate. In contrast, the text finally adopted requires a State 
Party to criminalize the stated offenses when they occur entirely in 
that State (i.e., domestically) and when they involve conduct committed 
in that State and another State (i.e., transnationally). This 
understanding of the term ``transnationally'' is also confirmed by 
Article 4, which requires the United States to establish jurisdiction 
only with respect to conduct that occurs in its territory.
    Accordingly, the use of the term ``transnationally'' does not 
obligate the United States to assert jurisdiction over offenses that 
occur wholly outside its territory. Subject to the proposed 
understandings and declaration, the United States can prosecute all of 
the offenses under Article 3 committed in its territory, irrespective 
of whether the conduct is entirely domestic in nature, or part of a 
course of conduct that is transnational in nature.

    Question 6. In the proposed understanding relating to Article 
3(1)(a)(ii) (relating to the Hague Convention), is not the second 
sentence a reservation? If so, should it be styled as such?]

    Answer. No. The fact that the United States has not yet ratified 
the Hague Convention on Protection of Children and Co-operation in 
respect of Intercountry Adoptions does not require that it take a 
reservation to Article 3(a)(ii) of the Protocol. Article 3(a)(ii), 
which was based upon a joint U.S. and Egyptian proposal, obligates 
States Parties to criminalize ``improperly inducing consent, as an 
intermediary, for the adoption of a child in violation of applicable 
international legal instruments on adoption.'' The term ``applicable'' 
when used in reference to international instruments refers only to 
those instruments to which the state is a party. Therefore, the plain 
meaning of Article 3(a)(ii) is that States Parties have an obligation 
to criminalize ``improperly inducing consent as an intermediary'' if 
they are also already parties to an international instrument that bars 
such conduct.
    Article 3(a)(ii) is drawn from Article 4(c)(3) of the Hague 
Convention on Protection of Children and Co-Operation in Respect of 
Inter-country Adoptions (Hague Convention), adopted May 29, 1993, which 
requires that an adoption within the scope of the Convention shall take 
place only if the competent authorities of the State of origin 
determine, inter alia, that consent has not been induced by payment or 
compensation of any kind. During the negotiations of the Sale of 
Children Protocol, both Japan and the United States stated their 
understanding that ``applicable international instruments on adoption'' 
meant the Hague Convention and that since they were not parties to that 
instrument, they would not be bound to penalize the conduct barred by 
the Hague Convention, i.e., improperly inducing consent. These 
understandings are reflected in the negotiating record of the last 
session. No State stated a contrary understanding.
    On September 20, 2000, the United States Senate gave its advice and 
consent to ratification of the Hague Convention. The Executive Branch 
intends to deposit the instrument of ratification for that Convention 
once regulations for implementation of the Convention and the 
Intercountry Adoption Act are in place and other preparations for 
implementation of the law have been completed. The implementing 
legislation for the Hague Convention criminalizes an intermediary's 
knowingly and willfully inducing consent by offering or giving 
compensation for the relinquishment of parental rights. See 42 U.S.C. 
Sec. 14944. This legislation will come into force at the time the 
United States ratifies the Hague Convention.

    Question 7. What is the scope of the obligation under Article 10 to 
provide assistance to other nations?

    Answer. Article 10(4) of the Sale of Children Protocol provides 
that States Parties ``in a position to do so'' shall provide financial, 
technical or other assistance through existing multilateral, regional, 
bilateral or other programs. This language was specifically designed to 
reserve to contributing States the determination of what specific 
assistance they might provide under the Protocol. The protocol will not 
create any financial obligation for U.S. taxpayers since the Protocol 
does not require States Parties to provide a specific type or amount of 
assistance.
    As is explained more fully in the transmittal memorandum, Article 
10 is consistent with the U.S. commitment to bring about an end to the 
sexual exploitation and trafficking in children. Consistent with the 
provisions of Article 10(1), the United States regularly engages in 
bilateral and multilateral efforts to deter and prevent the increased 
international traffic in children for labor and sexual exploitation. 
With respect to Articles 10 (2) and (3), the United States is committed 
to working with other governments to address the root causes of these 
crimes and to developing rehabilitation approaches that are effective. 
The Sale of Children Protocol should serve as a means of encouraging 
such programs and constitute an important tool for increasing 
assistance to children who are victims of sexual exploitation.
                                 ______
                                 

Responses of the Department of Defense to Additional Questions for the 
            Record Submitted by Senator Joseph R. Biden, Jr.

          questions with regard to the child soldiers protocol
    Question 1. Have the Joint Chiefs of Staff considered this Protocol 
and its effect on U.S. military readiness? Have they closely reviewed 
the proposed understanding on Article 1?

    Answer. Yes. Secretary of Defense and the Joint Chiefs of Staff 
have assessed that ratification of the Protocol would not affect their 
ability to carry out their national security missions.

    Question 2. What preparations have been made for the implementation 
of Article 1 of the Protocol by the Office of the Secretary of Defense 
and the military services? Can you outline how you anticipate that it 
will be implemented?

    Answer. Should the United States ratify the Protocol, the Services 
will promulgate implementation plans, as approved by the Secretary of 
Defense, that both fulfill U.S. commitments under the Protocol and 
ensure there is no adverse affect on each Service's military readiness. 
The Protocol gives the Services sufficient leeway to assign 17-year-
olds (once they are fully trained) to their units and to then deploy 
these personnel on a wide variety of operational assignments, so long 
as we take ``all feasible measures'' to ensure these personnel do not 
take ``a direct part in hostilities.''

    Question 3. During the negotiations, the U.S. delegation made a 
statement about its understanding of the obligation under Article 1. 
Did other delegations respond to this statement, and if so, how?

    Answer. No other delegation disputed the U.S. understanding of the 
obligation contained in Article 1 of the Protocol. Some other 
delegations expressed disappointment that the Protocol did not bar 
``indirect'' participation in hostilities and that the discretionary 
power granted to States through use of the term ``feasible measures'' 
weakened the Protocol. The Russian delegation acknowledged that since 
States were not required to prohibit participation, but only called on 
to take ``all feasible measures'' to prevent such participation, the 
Protocol left States open to the possibility in any emergency of 
involving persons under 18 years of age in hostilities. We agree with 
the Russian interpretation. When it signed the Protocol, the United 
Kingdom stated the following declaration:

          The United Kingdom understands that article 1 of the Optional 
        Protocol would not exclude the deployment of members of its 
        armed forces under the age of 18 to take a direct part in 
        hostilities where: (a) there is a genuine military need to 
        deploy the unit or ship to an area in which hostilities are 
        taking place; and (b) by reason of the nature and urgency of 
        the situation: (i) it is not practicable to withdraw such 
        persons before deployment; or (ii) to do so would undermine the 
        operational effectiveness of their ship or unit, and thereby 
        put at risk the successful completion of the military mission 
        and/or the safety of other personnel.

    This understanding is consistent with the U.S. view discussed in 
the administration's submittal letter.

    Question 4. Are there any regulations or Department (or service) 
directives with regard to the provisions of Section 505(a) of Title 10?

    Answer. In addition to Section 505(a) of the U.S. Code establishing 
the minimum and maximum age for voluntary enlistment, there also is a 
DOD Directive, a Military Entrance Processing Command directive, a 
Joint regulation, and Service Directives that set forth the age 
requirements (minimum and maximum) for enlistment.

    Question 5. The proposed understanding related to Article 3(2) 
indicates that each person recruited into the military ``receives a 
comprehensive briefing and must sign an enlistment contract which, 
together specify the duties involved in military service.'' Please 
summarize the nature of the briefing and the contract and information 
contained therein.

    Answer. The Military Entrance Processing Command (MEPCOM) gives 
each applicant a briefing that outlines Title 10, applicable 
regulations, and the enlistment form (DD Form 4). This briefing is 
outlined in MEPCOM Regulation 601-23, and the regulation also includes 
a list of questions that each applicant must be asked (e.g., you 
understand that you are joining the Army for 6 years). The briefing 
also defines fraudulent enlistments and its associated penalties.

    Question 6. The proposed understanding related to Article 3(2) 
states that ``[a]ll recruits must provide reliable proof of age before 
their entry into the military service.'' What measures are taken to 
ensure that proof of age presented is reliable? Is this requirement 
made of ``all recruits'' or only those who appear to be around age 18 
or younger?

    Answer. The Military Entrance Processing Command (MEPCOM) has 
programs that check to ensure that the date of birth entered by a 
recruiter falls into the age window outlined by Title 10, MEPCOM 
regulations, and other joint regulations. Additionally, each recruiter 
is required to obtain an original (or certified) government document 
that states an individual's age. Typically, this is an original birth 
certificate. If the individual is 17 years old, the recruiter is 
required to witness both parents' signatures. If a parent is divorced, 
then only one signature is required provided the custodial parent can 
produce the original (raised seal) divorce decree.

    Question 7. What is the scope of the obligation under Article 6(2)?

    Answer. Article 6(2) provides that States Parties ``undertake to 
make the principles and provisions of the present Protocol widely known 
and promoted by appropriate means, to adults and children alike.'' The 
provision is phrased generally, and States Parties do not assume 
detailed ``obligations'' under the protocol with respect to Article 
6(2). If the Senate provides advice and consent to ratification, the 
administration intends to take appropriate measures to ensure that the 
provisions of the Protocol become widely known. Additionally, the 
Department of Defense would issue appropriate internal directives 
providing implementation guidance relating to the Protocol's 
provisions.
                                 ______
                                 

 Responses of the Department of State to Additional Questions for the 
            Record Submitted by Senator Joseph R. Biden, Jr.

    Question 8. What is the scope of the obligation under Article 7?

    Answer. Article 7(2), like Article 10(4) of the Sale of Children 
Protocol, specifies that States Parties ``in a position to do so'' 
shall provide financial, technical or other assistance through existing 
multilateral, bilateral or other programs. This language was 
specifically designed to reserve to contributing States the 
determination of what specific assistance they might provide under the 
Protocol. The protocol will not create any financial obligation for 
U.S. taxpayers since the Protocol does not require States Parties to 
provide a specific type or amount of assistance.
    Article 7 reflects the U.S. commitment to assist in bringing an end 
to the tragedy of child soldiers through international cooperation and 
assistance among concerned States Parties and relevant international 
organizations. The United States has contributed substantial resources 
to programs aimed at reintegrating child soldiers into society and is 
committed to continue to develop rehabilitation approaches that are 
effective in addressing this seriously difficult problem. The United 
States actively supports activities to assist children affected by war, 
including demobilization, rehabilitation and integration into civilian 
society. The Children in Armed Conflict Protocol should serve as a 
means for encouraging such programs and constitute an important tool 
for increasing assistance to children who are victims of armed 
conflict.
                                 ______
                                 

     Responses of the Departments of State, Defense and Justice to 
  Additional Questions for the Record Submitted by Senator Jesse Helms

                questions for all first panel witnesses
    Question 1. Will this protocol have any impact on the United States 
Armed Forces ability to enlist 17-year-olds, or on the military's 
ability to recruit at high schools, sponsor JROTC programs, or 
participate in other activities involving Americans who are not yet 
eighteen?

    Answer. No. As Deputy Assistant Secretary of Defense for 
Negotiations Policy, Marshall Billingslea, stated during his testimony, 
U.S. ratification of the Protocol would have no effect on U.S. military 
recruiting practices. The current U.S. military practice, which 
comports with U.S. law (10 U.S.C. Sec. 505), sets 17 as the minimum age 
for voluntary recruitment, provided parental consent is obtained. This 
would not change if the United States ratifies the Protocol.
    Similarly, nothing in the Protocol would prohibit the U.S. military 
from continuing to recruit in high schools, sponsor JROTC programs, or 
participate in other activities involving Americans who are not yet 18. 
The JROTC programs and other activities entail no commitment of any 
kind to serve in the U.S. military, participants do not sign an 
enlistment contract, and participants are not members of the U.S. Armed 
Forces. Voluntary recruitment into the armed forces applies solely to 
an actual commitment to serve, such as signing an enlistment contract.

    Question 2. A United Nations report on Child Soldiers, the 
preparation of which was assisted by Amnesty International, makes the 
following allegations against the United States:
    1) Recruiters with the Delayed Entry Program (DEP) often harass, 
intimidate and threaten young people to enlist and or keep their DEP 
commitment. They cite a 1999 investigation by an Atlanta TV station for 
this evidence. (According to DOD statistics, in 1998 between 11 and 19 
percent of DEP enlistees as to be released.)
    2) Girls are vulnerable to sexual harassment by recruiters. In 
1999, a Washington state school district banned recruitment in schools 
after allegations of sexual harassment by recruiters.
    3) The report is extremely critical of military training programs 
and schools. They cite the Young Marines program (with participants as 
young as 8 years old), and JROTC. JROTC, although not an official 
recruiting tool, is accused by the report of engaging in this activity 
as well as promoting violence in schools. Furthermore, JROTC is 
criticized for its disproportionate number of minority participants and 
programs in poor schools.
    Why should the United Stated sign up to a protocol whose chief 
sponsors and proponents make these misleading charges about our 
country, and attempt to make a comparison or link between the 
recruiting policies of countries such as the U.S., Canada, and Britain, 
and the forced conscription of 8 and 10-year-olds in Africa and East 
Asia?

    Answer. It is our understanding that the referenced report was not 
prepared by the United Nations. It was instead prepared by a non-
government organization, the Coalition to Stop the Use of Child 
Soldiers. We do not find the allegations in this report concerning the 
United States or other countries to be credible.

    Question 3. The authors of this Protocol, as well as the U.N., 
understand the Protocol to read that 17-year-old soldiers functioning 
in a support role in a combat zone, such as driving a truck 
transporting supplies to the front, are ``participating in 
hostilities.'' I am aware that the Pentagon has a different 
interpretation of this Article of the Protocol, but if the rest of the 
world reads it this way, then it is quite possible that the U.S. will 
be charged with violating the Protocol, and that U.S. Commanders will 
be held responsible. Would you agree?

    Answer. As pointed out above, the Protocol does not contain any 
provision that would permit States to be charged with violating the 
Protocol. Nor does the Protocol authorize the trial of any person 
before an international criminal tribunal for a violation of the 
protocol or include any mechanism for cooperation in prosecution before 
international tribunals.
    Furthermore, there is no legitimate basis for challenging the U.S. 
proposed understanding concerning ``direct participation in 
hostilities'' as used in Article 1. That understanding is based upon 
the well understood meaning of the term in the law of armed conflict. 
The term ``direct'' has been understood in the context of treaties 
relating to such law of armed conflict (including International 
Committee of the Red Cross (``ICRC'')) commentaries on the meaning of 
the provisions of Protocol I to the Geneva Conventions) to mean a 
direct causal relationship between the activity engaged in and the harm 
done to the enemy at the time and place where the activity takes place. 
The standard recognizes that there is no prohibition concerning 
indirect participation in hostilities or forward deployment.
    Throughout negotiations with respect to Article 77(2) of Protocol I 
to the Geneva Conventions, Article 38(2) of the Convention on the 
Rights of the Child, and Article 1 of the Children in Armed Conflict 
Protocol (which all use the same terminology--``direct participation in 
hostilities''), various delegations, as well as the ICRC, repeatedly 
attempted to remove the reference to ``direct.'' However, other 
delegations, including the United States, insisted that there should be 
no deviation from existing treaties using the same terminology. For 
example, during negotiation of the Convention on the Rights of the 
Child, the ICRC explained its position in the Working Group as follows:

          Likewise, the Working Group could have strengthened 
        protection by removing the word ``direct.'' The ICRC suggested 
        this too during the Diplomatic Conference but the proposal was 
        not approved. This being the case, it can reasonably be 
        inferred from the present Article 20 of the Draft Convention 
        that indirect participation, for example gathering and 
        transmitting military information, transporting weapons, 
        munitions and other supplies is not affected by the provision.

    At the conclusion of the Children in Armed Conflict Protocol 
negotiations, a number of delegations expressed disappointment that the 
Protocol did not bar ``indirect'' participation in hostilities. 
However, we consider crucial the fact that the Protocol explicitly 
applies only to ``direct'' participation in hostilities.

    Question 4. The U.N. and proponents of this Protocol, such as 
Amnesty International, contend that any 17-year-old soldier deployed to 
a combat zone regardless of whether he or she is in a combat unit, or 
in the front or rear, would constitute a violation of the Protocol. 
They argue that the Geneva Convention and its additional protocols 
define combatants, under International Law, as members of a nation's 
armed forces. And as such, they can lawfully kill or be killed. 
Therefore, putting a minor in a situation in which they can be lawfully 
killed--even if they are not in a situation where they will likely be 
engaged in combat--would constitute a violation of the Protocol. What 
are your thoughts on this matter?

    Answer. The Protocol places no geographical limits on where 17-
year-old servicemembers may be deployed. It simply requires that 
parties take all feasible measures to ensure that servicemembers under 
18 do not take a direct part in hostilities. This standard does not 
prohibit 17-year-old servicemembers from being forward deployed, from 
taking an indirect part in hostilities, or from taking a direct part in 
hostilities under exceptional circumstances.
    During the Protocol negotiations, a number of states and NGOs took 
the position that states should ensure that participation in armed 
conflict did not occur below the age of 18. The United States and other 
delegations pointed out that if individuals under the age of 18 were 
permitted to enter the military, from a practical and logical 
standpoint states could not ensure that they would not take part in 
hostilities, since during the time of war, members of the armed forces 
are lawful subjects of attack no matter where they are located. 
Ultimately, the compromise reached requires that States Parties take 
``all feasible measures to ensure that members of their armed forces 
under the age of eighteen do not take a direct part in hostilities.''
    The understandings recommended by the administration in the 
transmittal package adequately describe the U.S. interpretation of what 
the phrases ``all feasible measures'' and ``direct part in 
hostilities'' entail. Furthermore, the U.S. interpretations of these 
terms correspond with the meanings attributed to them under the law of 
armed conflict, as the U.S. delegation so stated without contradiction 
during the negotiations.

    Question 5. Should there be an additional understanding regarding 
the meaning of our Article I obligations that ``direct participation'' 
does not include situations of self defense, such as the U.S. may face 
in a peacekeeping operation, routine duty, or active patrol in the case 
of a naval vessel?

    Answer. There is no need for this. The declaration and 
understandings recommended by the administration in the transmittal 
package are adequate to protect U.S. interests under the Protocol. 
Specifically, the Protocol's ``all feasible measures'' formula provides 
U.S. commanders with the necessary flexibility they need to address 
self-defense and other exceptional situations that might arise. The 
Protocol in no way limits the U.S. inherent right of self-defense.

    Question 6. Based on the views of some human rights groups have 
written, a 17-year-old in uniform constitutes a legitimate target (a 
combatant). And because under the Geneva convention combatants can be 
legally killed, the U.S. would be in violation of the Protocol for 
placing a 17-year-old in such a situation. Should, therefore, there be 
an understanding that the U.S. is not in violation of the Protocol if 
17-year-olds are physically in a theater of operations or war zone and 
killed or harmed by the enemy not as a result of ``direct combat?''

    Answer. There is no need for this. As stated more fully in the 
response provided by Mr. Billingslea to a similar question, the 
Protocol places no geographical limits on where 17-year-old 
servicemembers may be deployed. It simply requires that States Parties 
take all feasible measures, to ensure that servicemembers under 18 do 
not take a direct part in hostilities. The understandings recommended 
by the administration in the transmittal package adequately describe 
the U.S. interpretation of what the phrases ``all feasible measures'' 
and ``direct part in hostilities'' entail. Accordingly, an additional 
understanding is not necessary. That said, the Protocol does not 
prohibit the deployment of 17-year-olds under the circumstances you 
have listed.
                              ----------                              


     Responses of Amb. E. Michael Southwick and John G. Malcolm to 
  Additional Questions for the Record Submitted by Senator Jesse Helms

    Question 1. The Child Trafficking Protocol, if brought into force 
for the United States, would affect areas which are traditionally the 
province of state and local governments. Is it your judgment that state 
and local statutes and practices, coupled with recent federal 
legislation on trafficking, is not already more than adequate to 
achieve the goals set out in the Protocol? If not, why not?
    On the other hand, if you conclude that our domestic legal 
infrastructure is adequate, what possible concrete benefit to victims 
will flow from subjecting state and local law enforcement and victim 
assistance providers to scrutiny and criticism from an international 
body of dubious credibility and no intelligent understanding of the 
challenges they face?
    Please coordinate your response with the U.S. Department of 
Justice.

    Answer. With the adoption of the conditions to ratification that 
have been proposed, existing U.S. law, at the state, local and federal 
level, would enable the United States to comply with the obligations 
that the United States would assume as a Party to the Protocol.
    Ratification of this Protocol could provide U.S. victims of the 
offenses concerned concrete benefits. Most importantly, the Protocol, 
by requiring that the offenses covered be included as extraditable 
offenses in all bilateral extradition treaties, would help ensure the 
prosecution of offenders who commit crimes in the United States and 
flee to other countries. The Protocol also requires States parties to 
offer the greatest measure of assistance in obtaining evidence for 
investigation and prosecution of these crimes, which could facilitate 
U.S. prosecution of those who victimize children in the United States.
    In addition, to the extent that the crimes covered by the Protocol 
may be perpetrated against U.S. citizens overseas, the Protocol 
provides an enhanced legal framework for other States Parties to take 
action against such offenses and to provide protection to victims.
    The Administration is not concerned about explaining our state, 
local and federal laws and practices in this area to the UN Committee 
on the Rights of the Child. To the contrary, the Administrations 
welcomes the opportunity to present the extensive law enforcement 
measures and assistance practices that are present in the United 
States.
    Ratification of this Protocol will also give us standing to 
address--and if necessary, to challenge--opinions of the Committee on 
the Rights of the Child that interpret the Protocol in manners with 
which we disagree. We would lack such standing if we were not a State 
Party.

    Question 2. Your response to Question #1 (which I submitted 
previously) on the Child Soldier Protocol did not address the first 
part of the question. How will United States participation in this 
agreement halt the conscription of ``child soldiers'' in those areas of 
Asia and Africa where this practice still exists?

    Answer. Ratification of the Protocol on Children in Armed Conflict 
will empower us to speak--and be heard--as a full participant in a 
regime to end the scourge of the use and abuse of underage combatants. 
This will have a positive effect.
    As a witness before the Committee stated:

          (1) The protocol has already made a difference. . . . Even 
        before the protocol was finalized, some countries began to 
        change their practices. In Colombia, thousands of children were 
        demobilized from the Colombian armed forces. In June of 2000, 
        President Kabila of the Democratic Republic of Congo issued a 
        decree calling for the demobilization of child soldiers from 
        the Congolese
        army, and is cooperating with UNICEF to put rehabilitation 
        programs into place. . . .
          (2) The protocol can influence non-governmental forces. . . . 
        Last February, over 2500 children between the ages of 13 and 18 
        were demobilized from the Sudan People's Liberation Army. From 
        May to November over 1500 children were demobolized from the 
        Revolutionary United Front in Sierra Leone. In these and other 
        cases, non-state forces can be persuaded to comply with 
        international standards to enhance their own credibility.

    As our prior response to this question noted, several countries in 
Africa and Asia, namely Bangladesh, the Democratic Republic of Congo, 
Kenya, Sri Lanka and Vietnam, have already ratified this Protocol. If 
the United States ratifies this Protocol it will encourage those States 
to give effect to the commitments they have undertaken and encourage 
other States to do the same.

    Question 3. Your response to Question #3 (which I submitted 
previously) on the Child Soldier Protocol states that the Protocol does 
not ``authorize the trial of any person before an international 
criminal tribunal for a violation of the protocol.'' Is it the position 
of the administration that a violation of any provision of the Protocol 
would not form a basis for prosecution before an international criminal 
tribunal?
    Your response also included a quote from the ICRC delegation to the 
Working Group that appeared to define the term ``indirect 
participation'' in the context of Article 20 of the Protocol. Does the 
administration accept this definition of ``indirect participation'' and 
is the definition complete without reference to forward deployments?

    Answer. An alleged violation of a provision of the Protocol cannot 
form a basis for prosecution before an international criminal tribunal. 
Historically, international criminal tribunals, e.g., the Nuremberg 
Tribunal, the International Criminal Tribunal for Yugoslavia, the 
International Criminal Tribunal for Rwanda and the International 
Criminal Court, provide for the prosecution of offenses specified in 
the respective statutes establishing those tribunals. None of these 
tribunals provides for the prosecution of any alleged violation of this 
protocol.
    The ICRC statement cited in our response by its own terms is not 
exhaustive in describing the forms of ``indirect participation.'' The 
ICRC said ``. . . it can reasonably be inferred from the present 
Article 20 of the Draft Convention that indirect participation, for 
example gathering and transmitting military information, transporting 
weapons, munitions and other supplies is not affected by the 
provision.'' (emphasis supplied) We believe that the Protocol permits 
forward deployment of military personnel under 18 years of age so long 
as all feasible measures are taken to ensure that they do not take a 
direct part in hostilities.
    Ambassador Southwick, Mr. Billingslea and Mr. Malcolm concur in 
this response.

    Question 4. Is your response to Question #3 (which was submitted 
previously) by Senator Biden on the Child Trafficking Protocol affected 
by the recent Supreme Court decision in Ashcroft v. Free Speech 
Coalition, No. 00-795, 535 U.S. (2002), decided April 16, 2002?

    Answer. No, the answer remains the same. Free Speech explicitly 
recognizes the authority of the Justice Department to prosecute child 
pornography cases in which actual children are depicted, and that is 
the only type of child pornography that must be criminalized under the 
Protocol.

    Question 5. Do the Departments of Justice and State concur with the 
responses of Mr. Billingslea to Questions #1 through 8 by Senator Helms 
(which I submitted previously) and to Questions #1 and 2 of Senator 
Boxer (also submitted previously) on the Child Soldier Protocol?

    Answer. Yes.
                               __________

Responses of Amb. E. Michael Southwick and John G. Malcolm to Additional 
 Questions for the Record Submitted by Senator Joseph R. Biden, Jr.

    Question 1. Biden question #2 (which I submitted previously) on the 
Child Soldiers Protocol is unresponsive. The question posed was:
    What preparations have been made for the implementation of Article 
1 of the Protocol by the Office of the Secretary of Defense and the 
military services? Can you outline how you anticipate that it will be 
implemented?

    Supplemental Answer. The Department of Defense is currently 
reviewing how it would implement the Child Soldiers Protocol in the 
event that the Senate elects to provide its advice and consent to 
ratification of the treaty. Once the Department finalizes its review, 
we would be pleased to brief the Committees on Foreign Relations and 
Armed Services of the Senate.

    Question 2. Biden question #4 (which I submitted previously) on the 
Child Soldiers Protocol asked about DOD regulation and directives 
related to Section 505(a) of Title 10 of the U.S. Code. The question 
also asked for copies of these regulations, etc. Those copies were not 
provided. The question as retyped by you folks omits that part of the 
Biden question.

    Answer. In addition to Section 505(a) of the U.S. Code establishing 
the minimum and maximum age for voluntary enlistment, there also is a 
DOD Directive, a Military Entrance Processing Command directive, a 
Joint regulation, and Service Directives that set forth the age 
requirements (minimum and maximum) for enlistment.

    Supplemental response:

    Copies of the following documents are attached [These documents are 
in the Committee's files]:

          1. Department of Defense Directive 1304.26 dated December 21, 
        1993, entitled ``Qualification Standards for Enlistment, 
        Appointment and Induction''

          2. United States Military Entrance Processing Command 
        Regulation No. 601-23 dated May 13, 1997, entitled ``Personnel 
        Procurement, Enlistment Processing''

          3. Army Regulation 601-270, Air Force Regulation 33-7, Marine 
        Corps Order P1100.75A dated November 20, 1999, entitled 
        ``Military Entrance Processing Station (MEPS)''

          4. Army Regulation 601-210 dated February 28, 1995, entitled 
        ``Regular Army and Army Reserve Enlistment Program''

          5. Commander, Navy Recruiting Command Instruction 1130.8F 
        dated February 28, 2000, entitled ``Navy Recruiting Manual-
        Enlisted'' (Title page and Chapter 2)

          6. Air Force Instruction 36-2002 dated April 7, 1999, 
        entitled ``Regular Air Force and Special Category Accessions''

          7. Marine Corps Order P1100.72B dated December 10, 1997, 
        entitled ``Military Personnel Procurement Manual, Volume 2, 
        Enlisted Procurement'' (Short Title: MPPM ENLPROC)