Dear Secretary Rumsfeld,
Human Rights Watch is deeply concerned at recent reports that at least three children, ages thirteen to fifteen, are among the detainees being held at Guantanamo Bay. We assume that like adult detainees, these children are unable to talk with attorneys, have extremely limited, if any, contact with their families, are subject to interrogation, and are being held indefinitely.
We are writing to urge the U.S. government to strictly observe international standards governing juvenile justice and children deprived of their liberty, and the U.S.’ legal obligations under the recently-ratified optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
International standards recognize that children under the age of eighteen are a particularly vulnerable group, and entitled to special care and protection because they are still developing physically, mentally and emotionally. These standards include certain key principles, including the use of detention only as a measure of last resort, separation of children from adults, the right of children to maintain contact with their families, and the right to a prompt determination of their case.
In addition, new international standards binding on the United States recognize the special situation of children who have been recruited or used in armed conflict, and their rights to prompt demobilization, and rehabilitation and reintegration assistance.
Detention of Children:
A broad international consensus recognizes that for children (generally defined as persons under the age of eighteen), detention should be used only as a measure of last resort and for the shortest appropriate period of time. This consensus is reflected in international standards including the Convention on the Rights of the Child, U.N. Standard Minimum Rules for the Administration of Juvenile Justice, and the U.N. Rules for the Protection of Juveniles Deprived of their Liberty. These standards stipulate that alternatives to detention should be used whenever possible, ideally in a community-based setting.
According to recent reported statements by a U.S. military spokesperson, the children held at Guantanamo are being interrogated because they "have potential to provide important information." The possibility of providing the United States with military intelligence would certainly not justify the continued detention of these children.
If the children have allegedly committed specific offenses, they should be provided with counsel, and their situation adjudicated in an appropriate jurisdiction according to established juvenile justice standards. If the children are not being charged, they immediately should be returned to the custody of their parents or guardians. In all cases, the child’s best interests should be a primary consideration.
In general, any children detained solely because they are believed to have intelligence information of interest for the United States should be promptly questioned in their home country, and immediately released.
Risks to Children’s Well-Being:
U.S. authorities have stated that the children detained at Guantanamo are being held separately from adult detainees, in accordance with international standards. Nonetheless, the conditions at Guantanamo may pose serious risks to children. These conditions are believed to include:
-long periods of time in virtual isolation due to their very small numbers; -limited or no access to their families or legal counsel; -interrogation without the benefit of family members or legal counsel; -lack of staff trained in the rights and special needs of children; -indefinite detention, with no clear information regarding the timing of their release.
All of these factors are particularly detrimental to the well-being of children and violate internationally accepted standards for the protection of children. Studies have shown that isolated conditions are especially conducive to suicidal behavior, and that children held in adult jails (where they are more likely to be held in separate, secure housing and spend substantial periods of time in isolation) are up to eight times more likely to commit suicide than those held in facilities that are designed specifically for juveniles. The psychological impact of their detention environment is of particular concern for children held at Guantanamo, given reports that as many as twenty-five suicide attempts already have been made by detainees at Guantanamo. Children, as a particularly vulnerable group, may be at even higher risk.
Contact with Family: International standards related to children guarantee the child’s right to maintain contact with his or her family through correspondence and visits while deprived of their liberty, except in exceptional circumstances. Where there is no evidence that contact with family members would be detrimental to a child, they should under no circumstances be held incommunicado. Contact with family and opportunities to maintain family relationships can be crucial to the well-being of detained children, and a significant factor in preparing them for their eventual return to society. The U.S. government should make all feasible attempts to trace the family members of child detainees, and to facilitate regular contact.
Resolving Children’s Cases Expeditiously: International standards recognize that a child’s case should be resolved expeditiously and without unnecessary delay. The imperative for timely action on a child’s case is even more pronounced when the child is detained. Because of their relative immaturity, children often perceive time differently than adults, and periods of detention may seem even longer to a child than an older detainee, with consequent negative impact on their psychological health and well-being. This is particularly the case in circumstances where they may be isolated from their family and community, and denied educational, recreational and other programs appropriate for children.
Obligations and Considerations Regarding Former Child Soldiers:
The children held at Guantanamo may have participated in armed conflict in Afghanistan. An international consensus reflected in both international humanitarian law and international human rights law stipulates that under no circumstances should children under the age of fifteen be recruited into armed forces or be used to participate in hostilities. Protocol I Additional to the Geneva Conventions, which represents customary law, states in article 77.3 that if despite these prohibitions, children under the age of fifteen take a direct part in hostilities and fall into the power of an adverse party (in this case, the United States), they are still entitled to special protections, including whatever "care and aid they require," whether or not they are prisoners of war.
International law has already recognized the need for stronger protections for children involved in armed conflict. On December 23, 2002, the United States became a party to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Protocol prohibits all forced recruitment of children under the age of eighteen, and requires states parties to take all feasible measures to ensure that members of their armed forces that are under the age of eighteen do not participate directly in hostilities.
Under the protocol, the United States also has responsibilities to assist in the demobilization and rehabilitation of former child soldiers. Article 7 states that states parties "shall cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto."
These standards recognize the frequent abuse of children as soldiers in armed conflicts around the world. Whether "voluntarily" or forcibly recruited, the use of children in armed conflict is now widely recognized as detrimental to the development and well-being of children, and a serious abuse of their rights. In responding to this phenomenon, the rehabilitation of former child soldiers is paramount, with appropriate assistance, including family reunification, counseling, educational and vocational training, to aid their reintegration into society. If the child detainees at Guantanamo have participated in armed conflict, the United States should facilitate such assistance without delay.
Additional Child Detainees:
Recent reports have focused only on the presence of children under the age of sixteen among the detainees at Guantanamo. However, the accepted international definition of a child is any person under the age of eighteen. All children under the age of eighteen are entitled to the special protections and considerations outlined above. The United States should immediately clarify the exact number and ages of all children being detained at Guantanamo.
In addition, we also remind the United States of its obligation under international humanitarian law regarding alleged Taliban fighters. Because the international armed conflict between the United States and the former government of Afghanistan ended with the installation of the government of Hamid Karzai, the United States no longer has the authority to hold former Taliban fighters, including any such fighters that may be children. In such cases, they should immediately be repatriated.
We urge the United States immediately to make clear the steps that it is taking to comply with international standards relevant to the children detained at Guantanamo, including the specific concerns outlined above.
We look forward to your response.
Children’s Rights Division
Human Rights Watch