Razing Child Soldiers.

This article traces the usages of the term 'the child' as a legal concept set in dialectical relationships on three levels of narrative. First, the emergence of the child in international law is described and read critically as a progress narrative imparting a tale of the historical emergence of children's rights. The second section examines the text of the "Child Soldiers Case" in Sierra Leone as a moment of confronting, and ultimately repressing, the 'child soldier' as a legal fiction. The third section attempts to locate the dislocated author and addressee of the primary narratives of the child soldiers' story, and draws out the uses of childhood as a rhetorical stabilizer in the absolute unstable: war.

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Let us claim children as "zones of peace." In this way, humankind will finally declare that childhood is inviolate and that all children must be spared the pernicious effects of armed conflict.

--Graca Machel (1)

Salvation through the acceptance of vulnerability is the only kind of salvation there really is.

--Roberto Mangabeira Unger (2)

Introduction

Children have the right to know their rights. This revolutionary statement is often understood as a claim that children have become authentic subjects of human rights. However, being a subject of law entails being a participant in, and addressee of, legal narratives. What does it mean for 'the child'--a four-year-old, or a fourteen-year-old--to be an addressee of law? What sort of text could be considered properly legal--as a conventionalized form requiring study, or at least familiarity with complex concepts--and still be addressed to a child? (3) These questions, asked abstractly, cannot scratch the surface of the conceptual difficulties created when the ideal legal subject 'child' is located in relation to a legal problem and narrative. In many respects, the elusive entity of the child addressee of law links up with the same kinds of problems as the seemingly more concrete entity of the 'child soldier.' The problem is that the child of human rights is constitutively not supposed to have to take on adult roles--and there is no more of an adult role than that of a soldier, except perhaps the role of an addressee of law. The child addressee of law, similar to the child soldier, is thus an impossible subject--but in the first instance, the subject is unfathomable; in the second, unbearable. Within a particular idealization of the child, the compound or intersecting subjects are internally contradictory, or impossible subjects.

Still, the international community is following through on its promise to protect children's rights, and to make the child an addressee of law. The international community focuses on the most impossible subject of all--the child soldier as addressee--in order to inscribe its existence and prescribe its extinction. The attention of the international community, understood this way, can be seen as an attempt to inscribe 'objective' features into its 'gaze,' instead of leaving the subject as an open signifier. The children of Sierra Leone may be the first real child addressees of the international community.

The "Truth and Reconciliation Commission Report for the Children of Siera Leone" of 2004 (the "child-friendly" version) is an official narrative on the civil war in Sierra Leone that is consciously addressed to children. (4) Authored by UNICEF, the United Nations Children's Fund, with the participation/support of children, it is a unique artifact. It is written to address the issue of the experiences of children within the armed conflict of Sierra Leone, and defines itself as an "official account of the Commission's findings." Although the methodology page of this document asserts the claim that "[t]he child-friendly report was not written by children and does not attempt to speak for all the children of Sierra Leone but instead tells a story of the war from the children's point of view," it proceeds, written in a childish font and illustrated with pictures, to speak in the first person, narrating "our experience as children in the war." One gets the sense that this performance is more about creating a story for the adult than the child. Explaining the children's experience of war to children who have been fighting for years is like explaining sex in terms of 'the birds and the bees' to a teenage mother. It is unclear who the author, or the addressee, of this report really is.

The report's denial of speaking for children--while speaking as a child--is a perfectly beautiful illustration of the problematic endeavor of addressing children in international law. The ambiguity of the subject and addressee becomes manifest--as one is never sure in what sense the child is a 'subject' or 'addressee.' Is the child a participatory interpreter spoken to, or is the child the issue spoken of?. The report is framed as a compilation of different stories, and is supposed to represent the 'Truth' of the experiences of children in war, and specifically of the child soldiers in the war. However, the use of 'capital-T' Truth to relate the child soldier experience is a trope, a stylized capstone on a conflict that diverts attention from the complex relationship of legal discourses that have framed this particular story. The Report, an important artifact, is an outcome of the multi-layered relationship of different levels of voices, levels of authorship, and levels of storytelling in law, giving rise to a need to narrate a 'true' story of the child soldiers--told to children in the voice of the children of Sierra Leone.

What follows is an illustration of the multiplicity of uses of 'the child' as a legal construct found in three levels of legal narratives. First, the emergence of the child in international human rights law is sketched as a progress narrative imparting a tale of the emergence of legal instruments and institutions which protect humanity and provide the framework and tools for promoting the rights of children. The second part examines the text of a decision in the 'child soldiers' case' in Sierra Leone as a moment of confronting the construction of the child soldier as a legal fiction, and the repressive attempt to stabilize 'the child' by eliminating it from the legal process. The third part presents an examination of the primary narratives of the child soldiers' story as a symptom of the child as an impossible subject of human rights. It focuses on the uses of childhood as a rhetorical stabilizer in the context of the absolute unstable: war. The three sections trace the interaction of the particular content of 'the child' with the universal concept of 'the child,' tracing the discursive movements from one level of narrative to another. The three sections, taken together, provide an outline of a complex relationship of the child to legal narrative, as it tries to locate the dislocated as a subject, object, author, addressee, and, ultimately, a fantasy of the international community.

I. The Progress Narrative: A Child is Born in International Law

Children as a 'Vulnerable' Group

The modern move to recognize children as bearers of rights has been understood as a global transformation of the role of the child in society. The child emerged as a legal subject of human rights within the context of the international development of a protection system for children. As the story goes, following the atrocities of the World Wars, the international community collectively created a legal system to protect individuals against the excesses of governments. Children were of particular concern for the international community, as their "special needs" were seen as a priority. (5) There were declarations made as early as the 1920s recognizing that children have rights as humans, and should not be seen as mere property of their parents. Specific provisions for the protection of children are found in many of the major human rights treaties, such as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. But, the real watershed for children's rights came in 1989, when the UN General Assembly adopted the Convention on the Rights of the Child (CRC). (6)

The CRC, nearly universally ratified, has been viewed as a major advance for the protection of children. (7)Although it has been criticized for promoting a specific cultural, typically Western conception of the child, it has also been criticized for giving in too much to cultural customs and variations. (8) The CRC has been considered a comprehensive document in the kinds of protections it provides, and freedoms it guarantees, to children. (9) The CRC is notable insofar as it moves beyond the mere protection of the child and, always with the 'best interests of the child' as a grounding principle, sets out guidelines for states to promote an environment conducive to the development of the child. The convention includes protections and guarantees for the child, such as the right of the child to the enjoyment of the highest level of attainable health (Art. 24), the right to education (Art. 28), the right to freedom of expression (Arts. 12 and 13), the freedom of participation and assembly (Art. 15), and a right to information from the mass media (Art. 17), just to name a few. The CRC's provisions on education and information formulate a duty for the international community to facilitate information to children about the human rights system (Art. 42). Making children aware of their own rights is an aspect of the child rights' regime that indicates not only a transformation of the legal and social status of the child, but also the emergence of the child as addressee in and of international law. (10)

The treatment of children in international law is typically characterized as following a progressive path. International law and the world community have advanced from a time when the child was relegated to the private domestic sphere, outside the protection of law, basically property of the parents, to the modern legal construction of the child as an authentic subject of law. By entering the public international sphere, the child is finally able to be realized as an authentic subject in law--to be a bearer of human rights.

This account--the progress narrative--is, however, dubious. To have human rights is to become, in some important way, human in today's world. Yet, what sort of human is the child? As Joel Feinberg puts it: "Having rights enables us to 'stand up like men,' to look others in the eye, and to feel in some fundamental way the equal of anyone." (11) But is the child ever able to stand like a man? What does it mean for the child to be a subject of human rights? It is curious that the narrative of the rights of the child cannot be, or at least is not generally characterized as, a triumph for children (as if they had anything to do with the process), but rather as a triumph for the protection of children. The relationship of the child to the narrative is unclear, and leaves one asking if the child is the author, the addressee, or merely the object of the story. But the relationship of the child to the narrative is not the only curiosity. The progress narrative is simultaneously proffered as evidence of how far we have advanced, and a measurement against which it is shown that we have failed in our duties to children. The rhetoric on the rights of the child almost always includes a telling of this narrative in order to decry the gap between this picture and the actual treatment of children. (12)

The chasm between the legal narrative and 'reality' is regularly understood as a problem of enforcement. As the argument goes, states do not adhere to the legal obligations to which they have committed themselves, and this is the inherent weakness of international law. Following this type of logic, British legal philosopher John Austin famously called international law "not law properly so called." (13) This explanation, though recurrent, relies on a simplistic notion of why states or individuals follow legal norms and ignores the extent to which states do invest resources for the purpose of compliance with international law. (14) To understand the lack of fit between the narrative and reality as bad faith on the part of states is to be mistaken about the function of the narrative. It is, however, also to be mistaken about the function of reality. Another way to understand the 'gap' is to poke at the places in the narrative where silence stands for speech.

The CRC applies to every child. But who or what exactly is a child? The first article defines the child as "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier." (15) This slippery definition has been criticized as a failure of will at the international level to protect children, by allowing states to define differently the age of transition to adulthood. (16) The 'failure' to fix an age of majority, however, should not be seen as a failure of will, or a regrettable artifact of cultural differences, but as indicative of the kind of legal concept 'majority' is, and, consequently, 'child' as well. The age of majority is always relational, or dependent on context, as it is majority for some end. The age of majority to vote is different from the age of majority to drive, to drink, to work, to marry, to have children, etc. The failure to fix a single age of majority is thus not a problem of national differences. The desire to fix majority at any single age for every end would deny existing differentiation within domestic law for societal privileges, and the latter's relationship to the physical and mental differentiation that takes place in a life cycle. All societies designate different stages/ages to signal majority for different ends, while not for others. Thus, the failure of fixing the age of majority is not a problem of international law, but a faithful reflection of the fact that 'the child' is a relative legal construct.

There are certain articles within the CRC that require application to every individual under eighteen, even if under local laws s/he has reached the age of majority (such as the judicial protections against life imprisonment in Art. 37). For most of the convention, however, the child is assumed to be anyone under eighteen unless other laws allow for majority to be realized sooner. The slippery designation of the child, held together by an age that is both always assumed and always denied, begins to reveal the child of human rights, the legal construct, as an unstable fantasy of the international community. In its 2006 report, "The State of the World's Children," UNICEF, the United Nations Agency that deals primarily with children, describes a function of the CRC as establishing certain principles of Human Rights that form how we are to view the child. However, they do not clarify what exactly is being viewed, and who is doing the viewing. The grounding principle of the best interests of the child found in the CRC assumes that we know what the interests of the child are and, for that matter, what the child is.

Questions such as 'what is the child?', 'when does a child become an adult?', or, more esoterically, 'what is the nature of the child?' are precisely the questions being contested as the jurisprudence on the rights of the child develops. However, the terms of the debate are rarely spelled out as such, despite the fact that this is what is really at stake. As Costas Douzinas suggests:

   The successful mobilisation of human nature for the
   claims of women, gays or children or its metonymic
   extension to animals or the unborn, is an important component
   in the construction of the identity of woman, child
   or the foetus....[A] key aim of politics and of law is to
   fix meanings and to close identities by making the contingent,
   historical linkings between signifiers and signifieds
   permanent and necessary. (17)

Eighteen years designates the child as it marks the year s/he enters adulthood in international law: "Simply put, the age itself has emerged as the international norm for adulthood." (18) The focus on, and attempt to fix, the child at the moment childhood ends is enlightening. Age is used as a proxy for something that does not exist in itself. Even if adulthood is marked by the age of eighteen years and continues till death, the child is not defined by this year, as it remains unstated when the child is constituted as a legal subject. The CRC does not make explicit the moment the child begins to be covered by the law of the child. It prescribes 'prenatal' rights of health, legal protections before birth, as well as a right to life. But it does not mark the beginning of the child at conception, nor at birth, nor at a later age. Presumably, the concept of the child also encompasses the infant, but is the infant, a being not endowed with speech, the same legal subject as the seventeen-year-old? There is no stable image of the child subject. Instead, by obsessing over the age when the child becomes an adult, the child subject emerges as a non-adult. According to UNICEF, "childhood should be a separate space from adulthood.... This distinction embodies the spirit of the Convention on the Rights of the Child, which delineates rights that are particular to children as distinct from adults." (19) Here again, the child is revealed as a fantasy character, unfixed and unstable, in a fantasy narrative written by, and for, someone else. The child becomes a vessel of desire for an adult reader, since the child is capable of embodying whatever non-adult content is available and desirable.

Contestation over meaning has high stakes in legal discourse. This is even more evident when the debate is couched in the language of human rights, since human rights as a discourse is particularly saturated with symbolic power. The symbolic 'excess' of human rights turns the signifier into "something that combatants in political, social and legal struggles want to co-opt to their cause in order to benefit from its symbolic capital." (20) In some important way, the adults' struggle over definitions of the child has nothing to do with children: "The politics of age is part of ... the ideological, political, and social uses of children and the concept of the child. What is new is that the struggle over age has an increasingly global dimension." (21) The fantasy of childhood for the progress narrative takes on, moreover, a particular--and maybe more concrete--form when the scene changes from peace to war: In the context of the laws of war, the ideological struggle over the definition of the child as an object of protection aims more directly at excluding the child from the armed struggle altogether.

In the context of war, as regulated by international humanitarian law, children have never been subjects of rights, but objects of state obligations. In the Geneva Conventions of 1949 and their 1977 Additional Protocols, children are regarded as non-combatants, and, as part of the civilian population, they are given special protections. More specifically, the laws of war, historically considered separate from human rights law, have treated children as a special category characterized by their 'vulnerability,' during conflicts. (22) But as in times of peace, during times of war the age of majority is dependent on a purpose, an end. What is the age of majority to kill and be killed? This age has been extremely difficult to fix, and was one of the biggest sticking points in drafting the Convention on the Rights of the Child. (23)

The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict entered into force in 2002, and raised the age of involvement in hostilities to eighteen. This changed the previous standard of fifteen that had been set by the CRC and the 1949 Geneva Conventions and their 1977 Additional Protocols. (24) The ban on the enlistment of people under eighteen into armed forces may be seen as an unequivocal improvement in the lives of children. However, the progress narrative of the emergence of the child in peacetime does not conclude when war begins. The fantasy of childhood is employed even more vivaciously during conflicts than during peacetime, and the gap between the narrative and reality is even greater. The question remains: A narrative for what end?

The Children of Sierra Leone

The war in Sierra Leone began with an uprising in 1991 by the Revolutionary United Front (RUF), resulting in a bloody and prolonged civil war. The conflict attracted international attention because of the routinized brutal maiming of civilians, as well as the role and use of child soldiers in the war. (25) The war raged throughout the 1990s, during which around 5,000 children were said to be serving in one of the various military groups at any given moment. (26) The infliction of severe mutilation of the body, particularly the act of amputation used against the civilian population, was widespread. An estimated 400,000 people had body parts amputated during the war. (27) And although the use of child soldiers was not unique to the war in Sierra Leone, there was something about the child soldiers and the widespread kinds of violence that made Sierra Leone exceptional, warranting the establishment of a special kind of international criminal court. The war was notable, maybe not for its character as uniquely brutal, but for being paradigmatically brutal--a frightening model for modem warfare to come.

Towards the end of the conflict, but while hostilities were still taking place, there were several attempts to draw the violence to an end. In 1999, President Ahmed Tejan Kabbah, the Revolutionary United Front (RUF), and the Special Representative of the UN Secretary-General signed the Lome Peace Agreement. (28) The Agreement granted amnesty to members of the warring factions as well as requested the establishment of a Human Rights Commission and a Truth and Reconciliation Commission (TRC) to deal with the human rights violations. (29) The TRC was intended to be a forum within which both victims and perpetrators could tell their stories "in order to facilitate healing and reconciliation." (30) The TRC was imagined to present, in its final report, a true account of the war. However, as the Lome Agreement did not end the fighting, there was a second intervention.

In 2000, the Secretary-General issued a report to the Security Council that contained the text of the agreement establishing a "Special Court for Sierra Leone." (31) The United Nations, at the request of the Government of Sierra Leone, helped establish a court to indict "persons who bear the greatest responsibility" for crimes against humanity, war crimes, and other serious violations of International Humanitarian Law during the conflict in Sierra Leone. (32) The establishment of this 'special court' to prosecute international crimes is, legally speaking, a doubly unusual gesture, an uncommon event within the category of exceptional practices. The exceptional nature of the establishment of a court such as this is generally considered meaningful because it memorializes the acts that took place as a massive human rights tragedy in history. (33) But the creation of a 'special court' to deal with crimes that have already taken place is also unique because the procedures establishing these courts are exceptional. In 'normal' circumstances, an international court would be established by a treaty, in which states come together and agree to be bound by the decisions of a court created by that treaty. This is the case for the International Criminal Court established by the Rome Statute. (34) There are, of course, exceptions to this ideal rule, indeed more exceptions than instances of the rule. The most notable precedent was the International Military Tribunal at Nuremberg, created by agreement of the allied forces at the conclusion of World War II. In more recent history, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda were both created by Security Council Resolutions. (35) All the special tribunals have been criticized for having been created under imperfect, or irregular, conditions and procedures, affecting their perceived legitimacy.

The Special Court for Sierra Leone was unique as well among these tribunals, as it was the first hybrid court, created by an agreement between the Government of Sierra Leone and the United Nations. (36) It has still faced questions of legitimacy; however, many of the concerns are based on decisions made in setting up the Court rather than the authority to do so. (37) Among the most contentious issues facing the Special Court for Sierra Leone was the problem of how to deal with the child soldiers who perpetrated some of the most violent acts during the war. (38) Although under the Statute of the Court, it was within its jurisdiction to prosecute offenders between fifteen and eighteen, this possibility stimulated a fervent debate. (39) This is not surprising, given that the Special Court is in charge of trying crimes committed in the course of hostilities, and at the time when the Statute was drafted the UN was pushing for the adoption of the Optional Protocol raising the age of participation in war to eighteen. The position of many in the NGO community was that children should not be held criminally responsible for crimes committed in a war they should not have been a part of in the first place. (40) The prosecutor avoided dealing with this tension by announcing that he would not indict anyone under eighteen. (41) The position held by many in the international community working in the area was that the Truth and Reconciliation Commission would be a better venue for child soldiers. (42) Many Sierra Leoneans who suffered at the hands of soldiers under eighteen did not completely accept that all juveniles should go unpunished. (43) What was at stake in this struggle was the possibility of, and resistance to, the legal erasure of 'child soldiers.'

This tension was momentarily resolved in a seemingly banal decision of court procedure. The child soldiers of Sierra Leone would get their day in Court.

II. The (Child Recruit)'s Day in Court

The Jurispathic Performance of Jurisdiction: A Secondary Text

III. DISPOSITION

54. For all the above reasons the Preliminary Motion is dismissed.

This is the full text of the momentous final decision of the Special Court in the case officially cited as "Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment)," or the "Child Soldiers Case." (44) Although the legal outcome or decision of a case is generally more instructional than enlightening, some attention should be paid to the form of this procedural event, and the form the final crescendo takes in the decision. Given this single line, it must be difficult to imagine the importance of what had been decided in dismissing the motion. It may be difficult to imagine that the Court was able to establish what multilateral international negotiation had not at that time, that the voluntary enlistment of youths under fifteen in active combat is an international crime, applicable to every individual around the world. (45) But, the crime that was fixed in this decision happened by a very particular kind of speech act, even peculiar as far as judicial decrees go.

The Case of the Child Soldiers was a preliminary decision, answering a preliminary question, which all happened outside/prior to the regular hearing for Sam Hinga Norman, former Deputy Minister of Defence for Sierra Leone. The title of the case--which is not determined ad hoc, but by standard legal convention--is interesting insofar as the object of the case, child soldiers, enters the title almost as an afterthought, contained within brackets. The bracketing of child soldiers, as the object of the bracketed "child recruitment," visually recreates the treatment of the child in this case. They are managed through the text the same way they are managed by the Court: They are contained, displaced, repressed, and silenced. But seeing the metaphor in the judicial treatment of child soldiers within a procedural decision requires that we enter into the belly of the beast. The most highly conventionalized legalese in the genre of law is found in procedural cases (not coincidentally). To shed light on the way the child soldier is a symptom of the problematic figure of the child as addressee of law, what is required is some explanation of the legal questions of this case, and some translation of the legalese.

As a procedural prelude, the case turned on the question of whether or not the Court had the authority to decide matters relating to the recruitment of child soldiers. The contentious issue originated from 'a difference of opinion' between the defense and the prosecutor as to the state of customary law on the recruitment of child soldiers. The defendant in this case filed a preliminary motion claiming that enlistment was not an international crime at the time of the relevant events, and was thus outside the Court's jurisdiction. The Court was asked to decide if recruitment was in its jurisdiction, essentially if the activity of enlistment or recruitment was an international crime at the time of the actual recruitment. Incidentally, the Justices hearing the case also had a difference of opinion on this question, resulting in the issuance of three separate opinions. The majority opinion was written by Justices Emmanuel Ayoola and Renate Winter; the concurring opinion by Justice George Gelaga King; and the dissenting opinion by Justice Geoffrey Robertson.

The objection the defense raised (incidentally the same objection raised by defendants in Nuremberg) was that the Statute of the Court, which defines the crimes that the Court is supposed to prosecute, was the first articulation of the prohibition on the recruitment of children as a crime. Individuals who recruited children before the Statute came into force were not committing a crime. International law, both in international treaties and customary law (that is, unwritten law created by State practice informed by a sense of legal duty), prohibited the act but did not criminalize it. This argument is based on two fundamental principles of criminal law, nullum crimen sine lege and nulla poena sine lege (no crime without law, and, therefore, no punishment without law). One of the most basic principles of international criminal law is that it is never applied retroactively. The defense asserted that no crime existed at the time of recruitment in Sierra Leone, and, therefore, the Court had no authority to decide, or even to speak on the issue.

Clearly, differing opinions on the question abounded. Even within the bodies of the United Nations itself, there seemed to be disagreement about the state of the law when the Statute was drafted. The original wording of the Statute of the Court defined the crime as "abduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities." (46) Originally, the Secretary-General of the UN noted that it was unclear if mere enlistment had "crystallized" as customary law by 1996, the time in question when Sam Hinga Norman was to have enlisted children into the army. The position of the Secretary-General has historically been that to avoid retroactive application of international criminal law, in cases where customary law is unclear as to the existence of a particular crime, the Statute should not include it. (47) However, following consultation, including supportive letters from the President of the Security Council and the Executive Director of Human Rights Watch, the more expansive wording was adopted for the Statute. (48) The Statute of the Special Court in its final version cited "[c]onscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities" to be a serious violation of humanitarian law, and thus a crime punishable by the Court. (49) But, as already mentioned, this did not end the debate.

The majority of the Court relied on the argument that the prohibition was outlined in the 1949 Geneva Conventions and the 1977 Additional Protocols, as well as the Convention on the Rights of the Child. Taking these together, the Court reasoned that by 1996 the prohibition on recruitment had become part of customary law, given the very wide ratification of these treaties by the international community. The argument is slightly technical, but worth summarizing here. As mentioned, all conduct that is prohibited by the laws of war is not automatically criminalized by international law. Originally, in the Geneva Conventions for instance, only a handful of actions were considered war crimes (or "Grave Breaches," as they are called there). This means that only those crimes could be prosecuted internationally (either by a third State or an international tribunal). This select list has been expanded in recent history by the jurisprudence of International Criminal Tribunals for Yugoslavia and Rwanda. Yet, recruitment of children had still not been explicitly criminalized.

However, following a reasoning adopted by its sister International Criminal Tribunals, the Special Court argued that the "breach of a rule protecting important values [is] a 'serious violation' entailing criminal responsibility." (50) On the basis of the unequivocal condemnation of the practice of child recruitment by the UN Security Council as early as 1996, supported by "the numerous reports of various human rights organizations [on] the most atrocious consequences ]of recruitment] on children," the majority of the Court came to the conclusion that "the protection of children is regarded as an important value." (51)

The Amicus Brief (a legal argument coming from an amicus curiae, literally a "friend of the court") submitted by the University of Toronto International Human Rights Clinic and "Interested Human Rights Organizations" provided the Court with the legal argument of the horrendous effects of recruitment. (52) The brief outlines the argument that the criminal prohibition on recruitment of children existed in 1996, based on descriptions of the abhorrence of the act of recruiting children. There are several quotes from child soldiers, collected by Amnesty International, and several quotes from experts describing the psychological impact of war on children. The argument presented in the brief details the process of child recruitment as children being drugged and beaten until they are forced to join armed groups. It finally asserts the horror of the act of child recruitment in these terms: "The crimes that these children were forced to commit, at once turned them into the perpetrators and victims of horrific human rights abuses that the Special Court exists to address." (53) The brilliance of the legal argument is in the move that absolves the child from culpability constitutively. By committing criminal acts, the child is doubly victimized. The argument is not deductive as a detailed set of premises, but is supported by the unstated assumption that the ultimate form of abuse is the conversion of a child into its opposite--from a victim to a perpetrator of human rights abuses. The child as a human rights violator is the ultimate form of victimization. This does not require argumentation because it is always already assumed that the child is the victim.

The dissenting Justice, siding with the defense, based his case on the "principles of strict legality." That is, "it is precisely when the acts are abhorrent and deeply shocking that the principle of legality must be most stringently applied, to ensure that a defendant is not convicted out of disgust rather than evidence, or of a non-existent crime." (54) A close legal analysis could be constructed at this point to address the soundness of the majority and dissenting opinions, but that is not the purpose here. (55) The case is significant in what it reveals and conceals about differences over its unstated object: the child soldier as a legal subject. (56)

In one sense, the disagreement between the parties is quite obvious--essentially, they ask whether child recruitment was a crime or not. But both positions rely on lengthy and complex arguments justifying the existence or nonexistence of the law. Furthermore, both positions also rely on the same treaties, letters, and so-called travaux preparatoires, but come to opposite conclusions. The result is, in a seemingly simple question about the existence of a law, that it is actually quite difficult to pin down the exact places of disagreement.

To understand the difference between the majority of the Court and the dissent as a mere difference of opinion, or as an issue of unclear law, misses the nature of the problem. (57) Of the various ways to read the Child Soldiers decision, an interesting entrance is to ask what it reveals about the legal conventions of the unspeakable. How does it display what cannot be said and what cannot be read?

A judicial decision is a unique kind of text in many respects; it is even unique among legal texts. The figure of the judge is a kind of author that is constituted by, but also transcends, his texts. A Poet, Philosopher, or Artist will only be considered such after having produced something notable, but a Judge or Justice becomes so the moment he sits to write his first decision. The role of the judge entails more than a post or professional title, but carries with it an entire mythology. (58) The designation of status is important because the judge is a designated authority given the task of interpretation. The indeterminacy of law is, in some sense, always assumed by the designation of the judge to 'clarify,' or 'author' what the law says. It is precisely because there is an excess of possible meanings that the Court is assigned the task of interpreting, i.e., adjudicate. The act of interpretation for a judge, however, is not to create meaning, but to destroy it:

   Interpretation always takes place in the shadow of coercion.
   And from this fact we may come to recognize a special
   role for courts. Courts ... are characteristically "jurispathic."
   It is remarkable that in myth and history the origin
   of and justification for a court is rarely understood to be the
   need for law.... [I]t is understood as the need to suppress
   law, to choose between two or more laws, to impose upon
   laws a hierarchy. It is the multiplicity of laws, the fecundity
   of the jurisgenerative principle, that creates the problem
   to which the court and the state are the solution. (59)

The suppression of competing laws is a function of judicial interpretation. As Robert Cover dramatically puts it:

   Legal interpretation takes place in a field of pain and
   death. This is true in several senses. Legal interpretative
   acts signal and occasion the imposition of violence upon
   others: A judge articulates her understanding of a text,
   and as a result, somebody loses his freedom, his property,
   his children, or his life. (60)

A judicial decision is unusual insofar as its interpretation has immediate consequences for individuals. But, the violence of the word, according to Cover, is more basic than the mere consequences of the enforcement of a judicial decree. The real violence of judicial interpretation is that it is the imposition of a worldview that, by its very intention, forces out others.

The violence the judge wields in the act of interpretation is both fundamental to the role of the judge as the official narrator of the law, as well as heavily bound by conventions. The act of interpretation of legal texts is itself prescribed in law in terms of who can interpret, and how she should go about the act of interpretation. (61)

The court decision is an official narrative. It is thus privileged, but also parasitic. As an interpretation, it must rely on other narratives--primary narratives--to sustain itself. The relationship described as existing between primary and secondary narratives, (62) or as primary and secondary 'genres,' (63) is a reciprocal relationship that displays both the power and limitation of law.

A judicial decision is powerful as it reconstitutes primary narratives into its own logic. One of the most powerful conventions a Court has in its interpretive toolbox is the authority to define its own boundaries of authority, known as kompetenz-kompetenz (the competence of the competence)--that is, the ability of courts to decide what is within and beyond their jurisdiction. Jurisdiction, in international law, is used to describe "the authority to affect legal interests." (64) But quite literally, a court's "juris"-"diction" is its authority to speak or narrate the law. The move of asserting jurisdiction in the case of the Child Soldiers is about the Court claiming its authority to narrate the tragedy of children in Sierra Leone. The dissenting opinion is a refusal to speak. It is a move that rejects the jurispathic power of eliminating narratives. Often viewed as a dry, uninteresting procedural topic in law, jurisdiction conceals a massive potentiality in law. Actually, jurisdiction is the power of law--the authority to speak:

   In the face of challenge, the judge--armed with no inherently
   superior interpretative insight, no necessarily better
   law--must separate the exercise of violence from his own
   person. The only way in which the employment of force
   is not revealed as a naked jurispathic act is through the
   judge's elaboration of the institutional privilege of
   force--that is, jurisdiction. (65)

As the Court debates its authority to speak, interestingly, the child hardly appears, or rather, a child may be seen, but is certainly not heard. The narratives of childhood are visible somewhere in the background of the procedural decision on jurisdiction, i.e., the Child Soldiers Case. The Court asserts the abhorrent nature of child recruitment: "As can be verified in numerous reports of various human rights organizations, the practice of child recruitment bears the most atrocious consequences for the children." (66) The texts that outline the consequences of war on children were accepted by the majority of the Court, as well as by the dissent. Justice Robertson notes: "The Court has been made aware of literature detailing the appalling impact of war on children in Africa, and especially in Sierra Leone where more than 10,000 children under the age of fifteen are said to have served in the armies of the main warring factions." (67) While Robertson makes it explicit that he agrees with this literature and the terrible effects of war on children, he also implicitly challenges it. His refusal to act or to dismiss the motion is an admission of multiple primary narratives. It is not surprising that Robertson's dissent was treated with disdain in King's concurring opinion.

Although there are prescribed rules for judicial interpretation, as in most rule systems many of the most important textual conventions that govern what can and cannot be stated are not explicit. But the consequences for violating these rules reveal their centrality. The moments when non-traditional moves or arguments are disciplined in legal texts are fascinating as they exhibit a passion not often seen in legal decisions. In Justice Robertson's dissent, he points to the difficulty in distinguishing exactly what activities are prohibited in customary law. Asking how the norms we all agree on came to be agreed upon, he questions the wisdom of a central distinction of the norm--the distinction between active and passive participation in hostilities:

   This distinction is somewhat dubious--the baggage
   train, as Shakespeare's Henry V reminds us, is not
   always a place of safety for Children. Besides which,
   children enlisted for duties "unrelated to hostilities"
   may be all too willing to help on the front-line, dying on
   the barricades like the "powder monkey" Gavroche in
   Victor Hugo's Les Miserables. The enlistment of children
   of fourteen years and below to kill and risk being
   killed in conflicts not of their making was abhorrent to
   all reasonable persons in 1996 and is abhorrent to them
   today. But abhorrence alone does not make that conduct
   a crime in international law. (68)

The rejoinder from Justice King, uncommonly lively, makes the sterility of the rest of the Court's decision all the more striking. Referring to the above quoted passage in Justice Robertson's decision, he comments: "With all due respect to my learned colleague, it is this type of egregious journalese the relevance of which I cannot fathom that has made it impossible for me to appreciate his reasoning." (69)

The tone of the concurring opinion provides an interesting contrast to the tone of the majority decision. The assertion of jurisdiction eviscerates competing narratives, and this act of assertion is the disciplining action that hides the violence contained within it. Only in limited moments are we given a glimpse of the emotion behind the violence. Although the style of Roberston's argument is what is targeted as offensive to King, it cannot merely be the use of Shakespeare and Hugo in a legal decision that has provoked King. The claim by King that he cannot even appreciate Robertson's reasoning--that it is not merely that they disagree, but rather that Robertson's arguments do not even make sense--reveals a deeper resentment and miscomprehension. The picture within Robertson's examples challenges a norm that should not have been questioned in this context. The argument Robertson proposes here is more pernicious than merely questioning the wisdom of the distinction between active and passive participation. He also implicitly challenges the notion that a child is acted upon, by proposing that the child may choose to fight, and may even be 'willing to die.' It is this addition of child autonomy, child subjectivity, that destabilizes "(child recruits)"--as they are momentarily child soldiers, and not just children.

David Rosen, in Armies of the Young, has pointed to the elision of the relationship between children and violence in Sierra Leone prior to and during the war, as part of the campaign to eliminate child recruitment. He argues that the connection between the youth of Sierra Leone and violence was not an aberration of war, but had been part of the general conditions during peacetime in an economically and socially divided country. The gap between the majority living in the provinces and an economic elite who exercised control over the diamond industry created conditions for discontentment. Rosen notes that the children of Sierra Leone continue to this day to work effectively as slaves in the diamond industry, which made their recruitment into militaries and paramilitaries relatively easy. He also observed that the literature describing the effects of the atrocities of war on children usually omits that the beginnings of the RUF was a student movement whose core was comprised of "relatively privileged college and high school students, mixed with boys and youth from the poorest urban slums." (70) The youths were often used during peacetime in politically motivated street violence. Perhaps most interesting for anyone concerned with children's rights is that, although there was widespread recruitment including abduction and forced recruitment of children into the various militaries during the war, there were also protests held by youth who had tried to enlist but were refused. (71) The image in Rosen's book, of some child soldiers being politically active, economically discontented boys, tired of being exploited by an economic elite, cannot factor into the image of the vulnerable child recruited by manipulative adults.

The decision of the Court is centered on dates and sources, not harms suffered or alternative possibilities. The move to find a customary norm in international law was exceptional, and it summarily removed the question of the harm of children actively engaging in war off the table for debate.

Jurisdiction works within a secondary text. In this case, it privileged one primary narrative of the child and childhood over another. The role of the courts is not to create the narrative, but to eliminate and organize a hierarchy of narratives. (72) Like a sleight of hand, a judge's use of jurisdiction can make law appear where it could not be seen before. The law does not materialize out of thin air, but rather, by the performance of jurisdiction, the judge strikes down competing normative universes making a single one visible. The decision 'freezes' momentarily the signifiers to the content found in the primary narrative, and in this way the judge "makes the world." (73) The Court, through the move of jurisdiction, and without having to proffer justification, was able to impose a narrative of the child and childhood, to give a new meaning to the notion of 'the child' within the social sphere in Sierra Leone. (74)

III. Stabilizing the Child Subject in Law

The Special Court's assertion of jurisdiction was the assertion of a choice between primary narratives. However, through the language of jurisdiction, the Court distanced itself from the question of what the child or childhood should be in law. The distancing move made it appear as if this question was not open for contestation in the context of determining if a crime of "child recruitment" existed or not. But the descriptive and prescriptive questions are contested, and the split between the Justices, for a moment, allowed us to see the contingency of the primary narrative privileged by the majority using the trope of legal necessity. By pitting Shakespeare against Amnesty International, the dissent demystified the legal narrative of child soldiers as a form of prose, and the child as a fictional character. What follows is an exploratory analysis of the notion of the child in the primary narratives about child soldiers. (75)

Reading the Primary Narrative or How to Use the Child Soldiers' Voice?

P. W. Singer, known for his book Corporate Warriors, another topical aberration of war, has recently published a text on the phenomena of child soldiers. (76) Many of the same sources for the narrative the Special Court uses to make its decision are found in Singer's book, Children at War. (77) Singer relies on the extensive ethnographic work of human rights and humanitarian workers who have collected the war stories of children in order to analyze the 'new' practice of child recruitment. (78) The character of the child soldier appears in fact, to me, so similar to the child soldier found in the reports and briefs the Court relied on that Singer's child soldier looks like a shadow cast by the narrative written about the child soldier in the Special Court of Sierra Leone. But, as Singer endeavors to look directly at the child soldier, as opposed to avoiding it, it is an unusual shadow. Singer's child appears more robust, with discernable contours not visible in the repressed image found in the Court's decision. However, the child soldier is the same character insofar that it is never itself, but is always a denial of itself for some end. (79) The child either consumes the soldier, or the soldier consumes the child. However, the child soldier is denied as a possible subject.

The use of the 'real stories' of child soldiers to describe the atrocities they witnessed and committed takes on a very specific form in the primary narrative. The dialectical move from particular to universal and back to the particular provides the co-ordinates for the ideological construction of the child. The particular child subject authoring a description of her/his experiences disappears when the voice becomes a quote. One of the conventions used to protect the child soldier is absolute anonymity. No real names, or other potentially identifying information, are used when quoting a child. The consequence, however, is that the particular voice loses its particularity. The quote from a child is then placed within a story constructed by an author, and the voice does not tell a story at all, but is used as dialogue in someone else's story. The child's voice loses any power of authorship, although it is used authoritatively. The move between the particular and the universal of the child makes it appear as if the child was the author, whereas in fact the child is always an object interpellated by the discourse. That is, instead of being a subject interpellated by a discourse, the child is someone else's subject interpellated by someone else's discourse. (80) The subject is then inverted as a symbol, as the particular child is read back into a text that has come to represent a universal concept of the child. The nominalist finale in the dialectic completes the ideological construction as the particular child embodies the constructed universal, and, in this way, anything a child 'says' provides evidence for the ideology of the child within the author's narrative. (81)

The words of children are sprinkled throughout the text, to illustrate or support arguments that being a child soldier has horrendous effects on children. However, there is often no reference made to which conflict the children come from, or the possibility that different wars have different constructions of child soldiers and different consequences for them. (82) The conflicts which use child soldiers become as much of an abstraction as the child soldier itself. One quote in Singer reads: "I don't want to go back to my village because I burnt all the houses there. I don't know what the people would do, but they'd harm me. I don't think I'll ever be accepted in my village.--I., age sixteen." (83)

I checked the source of this quotation, as I knew I had read it before. It was cited in Singer as a broadcast from Radio Netherlands. (84) I found it again in a report I had read by Amnesty International, and again in the Amicus Brief from Toronto filed with the Special Court, which cited it as having originally come from the Amnesty International report. (85) The particular story of a child becomes the voice of the child soldier. There is no child soldier's voice, it is the child soldiers' voice expressed in a quote by a child. It is in this move from singular to the plural, and from the particular to the universal and back again to the particular, that the child is constructed as a fantastical character.

There is no discussion in Singer's book about how the quotes were collected, or how the child soldiers 'came to speak.' The analysis of the child soldier is framed within a socio-scientific, multi-disciplinary genre. In the author's note, Singer claims that he relied on the literature from different "fields, including psychiatry, pediatric medicine, anthropology, military history, sociology, and political science." (86) Singer does not mention using human rights reports or advocacy literature as such, although they are the primary sources of the interviews with the children, as found in the endnotes. There is no explanation of the interviewing methodology or even when the accounts were taken. (87) The lack of methodological justification does not necessarily mean that the voices are not authentic, only that there is no need to justify the methodology of collection in the context in which the book is framed, and incidentally the court case as well: violations of international law and war crimes. (88)

This allowance can be understood as an omission that shows a paradoxical trait of the child soldier as a character. The voice of the child is privileged in the literature as a 'true' account of events. The voice is represented as a naive, but honest, reflection of reality. Only a child in its innocence could proclaim that the Emperor was not wearing any clothing. Likewise, only a child can describe the events of war without the taint of ideology. However, the immaturity and irrationality of the child are simultaneously constituted and assumed if the subject is below eighteen: "Once they are judged able to conduct themselves in a mature and fully rational manner, they are granted equal standing as adults.... Around the world, eighteen years has become the generally accepted transition point to adulthood." (89) Within this hermeneutic, anything the child says is used as evidence of the child's irrationality. Take, for example, the quote of a twelve-year-old who asserts the lack of understanding of war at his own earlier age: "I don't know what I was fighting for. The rebels just told us that we were fighting for the people. I don't know what the war was all about because at the time, I was not really old enough to understand these things.--L., age twelve." (90)

The child could not understand the things of war at the time when he or she was fighting. There is a possible double existence of the subject as a knowing twelve-year-old who could identify her/his lack of maturity at an earlier age, and the naive twelve-year-old who simply states her/his own inability to understand the complexities of war. In Singer's argument, it is supposed to be evidence of the immaturity of anyone under eighteen. How is the twelve year old to be read? Adulthood is the marker of rationality and maturity, and, with eighteen as a global norm, the transformation from child to adult is not gradual. It effectively eliminates the possibility of rationality to be attributed to anyone under eighteen. The subjectivity of the child soldier is painted as inherently irrational, but simultaneously wise, in that it is a true voice. Take the next quote as exemplifying this image of the innocent wisdom of the irrational children as they speak the truth of action to end the legality of child recruitment: "It's a good start to write documents and stuff, but it's time to stop theorizing and start doing work to end this.--I., age thirteen." (91)

My first thought when I read this quote was that "theorizing" is an interesting word used by a thirteen-year-old who has presumably been fighting in war, and not getting an education. Not much more information could be discovered about this child other than that this quote is revealed as a comment made to "the UN special session on Children" in 2002. The staging of the child's voice is perhaps most striking for me in this quote, and I can picture the image of a child speaking at the United Nations, having been introduced in a flame of vulnerability and irrationality prior to his (or her?) presentation. It is almost like watching a play, where Sybil speaks and reveals the truth that only she can see. Like the mad seer, the child soldier is portrayed as another archetype of an unnatural combination of truth and irrationality.

David Rosen claims, in his survey of the humanitarian campaign against the use of child soldiers, that there is no credence given to the possibility that child soldiers are making rational choices when they choose to fight. Describing the way children are portrayed, he makes the following observation:

   Children are seen in these narratives, to be emotional or
   irrational decision makers. They volunteer to be soldiers
   because "they believe that this is the only way to guarantee
   regular meals, clothing, and medical attention" or because
   "they may feel safer ... if they have guns in their hands."
   They join because they are "susceptible to the lure of military
   life and the sense of power associated with carrying
   deadly weapons." ... Children only believe or feel or sense.
   They do not know, understand, judge, or decide. In such
   descriptions it seems as though no person below eighteen
   years of age has any capacity for rational judgment. No
   credibility is given to the fact that volunteering for the
   armed forces may be the only way to survive or that armed
   children may be safer than unarmed civilians. (92)

The exclusion of children from rationality reserves reasoned discourse for adults. By this intra-textual trope, access to reality through rational argumentation is established within the story. This way, even when the testimony is disturbing and unbelievable, the account can be portrayed as transparent. There is no explanation of how Singer reads the quotes, as if they stand on their own, necessarily supporting his arguments. We the readers, like the author, are supposed to know what the quote means, even if the child does not. In this way, we are all liberated from the complexity of the relationship of word and world, and never have to ask who the author, the addressee, or the object is.

There is another paradox in the child soldier as simultaneously immature and unpredictable, on the one hand, and disciplined and obedient, on the other. The arguments for why children are recruited span from their malleability (they are easy to control) to their unpredictability (they do not follow natural rules and are effective tools for terrorizing). The image of the use of children for their obedience conflicts with the image of the child soldier as an irrational, indiscriminate, vicious killer. The brutality of children is often linked to their lack of judgment and experience. (93) However, the use of the image of the child soldier as unusually brutal goes beyond cool description of the victimization of the child, and reveals a sense of urgency in the author. The senseless brutality associated with child soldiers relies on the fear that their violence cannot be contained. Child soldiers are not compelling merely because they should be protected as a vulnerable group in the world today; they are compelling because they challenge our sense of order. They are portrayed as somehow not human. Under the heading "The Mess that Children Make," Singer uses the following quote: "Sometimes, when I was angry, I'd kill some of my fellow rebels. If we fell into an ambush and these bigger boys made a mistake, we'd kill them.--P., age twelve." (94)

Again, this quote appears ambiguous to me. It does not seem extraordinary in a war situation to have mistakes punished with death. The killing of soldiers for mistakes may not be sanctioned even during war, but this behavior does not appear irrational or particular to children. The soldier explains that he would kill when he was angry, but there could have been a rationale for his anger. It is unclear to me which part should be emphasized as the "mess" children make. He killed because he was angry, but he was angry because they were in danger and another soldier made a mistake. There seems to be a possible issue of subverting a military hierarchy if younger children kill older children. However, the hierarchy is unclear as it is often ignored that younger children were in leadership positions, and the older boys the quote refers to could have been under his command. Their mistakes were punished by death because they should have known better, while a younger child who made a mistake may not have been killed because he was assumed not to know any better. This quote is used as exemplifying the most terrible kind of childish excess. However, it is unclear what the actual child meant. Singer takes a line from a child, strips it of its context, and uses it to describe the irrationality and inhumanity of its author, while infantilizing her/him by placing the quote under that heading: "The Mess that Children Make." The words destroy reality, and create in its place a fictional character that can be tolerated because his actions were only the consequence of not knowing better: "They kill because they are irrational or prerational or because their rationality has been stripped away by adults that have forced them to ingest alcohol or drugs. In this globalized version of the science fiction film Village of the Damned, the child soldier is portrayed as a killer automaton." (95)

The use of age as a proxy for 'child' is the only identity marker that makes this horrific being anything we can relate to. Age is the only relevant marker of identity where names, country of origin, and (often) gender are deemed irrelevant, stabilizing a subject that cannot otherwise be stabilized. When the speaker describes how he and others split a baby in half when torn from its dead mother, his age is placed next to the name to elicit an emotional response. If the reader has an image of childhood prior to reading the quotes, as we are all supposed to, the mixture of horror at the actions and affective emotions towards children creates an unlivable tension. The child soldier is neither properly a child nor a soldier, and this contradiction of ideals terrorizes the reader. The smearing of contradictory images of desire is inscribed into the gaze, to create "'objective' features" of the gaze with which we look at the child soldier. (96) The contradiction of the child soldier is actually only the contradiction of our own desires and, as such, unlivable.

In the progress narrative the child is shown to be an unstable signifier, capable of absorbing all the un-adult content necessary or desirable. The un-human nature of the child soldier is a starting place to examine what is stabilized outside, and opposite to, the child. In the context of war, the fictional child stabilizes the fictional soldier.

A Last Look at Child Soldiers

The question remains: What caused the exceptional to take root in this context? The images of the war in Sierra Leone were brutal and disturbing. What warrants attention is not why there was an exceptional reaction to protect child soldiers, but why there was not a similarly strong reaction to protect other children. Why are we less disturbed by images and knowledge of children as slaves in Sierra Leone, prior to, and after, the war? (97) Or why did the international community not take drastic measures to deal with child refugees since there are far more children made refugees by war than made soldiers, and the effects of being a refugee are arguably far worse? (98)

Rosen states: "What sets Sierra Leone apart from many other recent wars in Africa is, according to the U. S. Agency for International Development mission there, the difficulty of distinguishing perpetrators from victims." (99) The difficulty of separating and categorizing the subjects of the war in Sierra Leone required an exceptional response to deal with the exceptional circumstances of war crimes. There are several dichotomies stabilized in the narrative of the child soldier:

In regular circumstances of war:

Adult-Soldier

Rational

Autonomous

Free

Active

Combatant

Child-Civilian

Irrational

Vulnerable

Dependent

Passive

Victim

In exceptional circumstances of war:

Adult-Soldier

Rational

Autonomous

Free

Corruptible

Guilty

Aggressor 

Child-Soldier

Irrational

Manipulated

Coerced

Honest

Innocent

Victim

The child soldier as an entity not only challenges our comfort with respect to the nature of the child, but also about the nature of war and violence. The elimination of the child as an irrational element of warfare is a repressive act that regulates not only the child, but also violence. If children become threatening, instead of devouring our children like Kronos, we bind them with humanitarian benevolence. This act of repression not only returns children to their roles as innocent victims in war, it makes war and violence digestible for modern civilized societies.

The child soldier is a grotesque being that challenges our sensibilities. He is, like the wolf-child, not properly part of any world, but a character we create in a liminal space. As described in Agamben's The Open, the wolf-child appears at the moment in history when man is coming to know himself in the biological sciences. The wolf-child emerges in the classificatory system of biology under the category of homo sapiens, although he is in all ways opposite to the category. The inclusion of this fantasy character in the scientific classificatory system is a manifestation of the repression of that moment in history. As Agamben notes, in confronting this mute child, man became aware of the "precariousness of the human." (100) Likewise, the international community gazes upon, and classifies, the child soldier as a mechanism to control our own awareness of the precariousness of humanity.

When war becomes too irrational, too unprofessional, when it pollutes the "zones of peace" we consider off limits, that is when it cannot be sustained. The child soldier defies our desire for, in Zizek's terminology, decaffeinated war, or "war without warfare" (101)--that is, as much war as we want, but without the ugly side effects. What is disturbing about the child soldier is its ability to reveal the Real of modern warfare. The argument against child recruitment is not only about the effects of war on children; the underside of the arguments about the bad effects of war on children is that what is really disturbing is the bad effects of children on war. Take three quotes from Singer, for example:

--Children's presence as fighters also affects the norms of good behavior in war. (102)

--Child soldier units are recruited differently than regular military units and operate in different manners, also adding to the need for change. The key is to recognize the duality that is at the very nature of the problem: real threats offered by children operating in a place they should not be, the realm of war. (103)

--The result is that, with children present, political ideology is less necessary to the maintenance of warfare. Indeed, many conflicts fueled by child fighters have been simply about personal greed and the seizure of valuable mineral assets. (104)

The narrative of the child in war is a disruption of the idea of war as a place of order and civility, or that war is fought for just ends in the public sphere. The image of 'regular' war as a place governed by the Geneva Conventions and the rule of law sanitizes war and allows it to become normalized. (105) It cannot be left unquestioned merely because it appears unquestionable that the rules of war have, in fact, made war safer for children when governed by rationality.

In 2006, The American Congresswoman, Representative Cynthia McKinney, gave a speech appealing against the legal detention of an American soldier, who--over forty-years-old, a volunteer, and seasoned combatant--would not return to the war in Iraq. His qualms were not about committing illegal acts, but about fulfilling a duty to commit legal acts of war. These were her remarks:

   We know that collateral damage is not just a number:
   100,000; 200,000. It is people. It is little boys and little girls.
   It is women. Kevin Benderman said, I am not going to kill
   innocent people. Don't ask me to do that. I have done it once.
   Once is too much. He decided that he would apply for conscientious
   objector status. Well, Kevin Benderman is in the
   brig because he did not want to kill innocent little girls and
   little boys and women and men in Iraq. He is in the brig. (106)

From the perspective of the international community, in a legal regime of regular war, children are properly classified, but only when necessary, as "collateral damage." They are not soldiers or enemies. By making children victims, sad as it is, at least it does not disturb the rules of regular war. An interview with Kevin Benderman relays an image of regular war, and of the adult soldier that troubles many of the dichotomies the Child Soldiers' Decision worked to stabilize:

   If you go back and look through the history of wars, you
   can see that they're all the same. There's violence. It's
   young men killing each other for whatever reason....
   When I see the reality that war makes our young men and
   women do things they might not otherwise do and puts
   them in situations where killing is just--well, it's kind of
   hard to say really, because everybody looks at war in a
   certain way. It's all glamorised on TV and in the movies
   and everything else and you see all the stories.... But
   once you see the reality of war up close and personal ...
   it's hard to see because the way war is presented in the
   media is so different from the way it looks up close. (107)

The reality of war, regulated and rational, like the child, innocent and true, is a fantasy. The 'razing' of child soldiers can be seen as "a belief in the 'performative force' of the ideological illusion" that we need to continue in the face of abhorrence. (108) The child becomes a transcendental repository of hope for the international community. We eliminate the child soldier to deny the effects of war, and to project a part of humanity into the future, still innocent and untouched by brutal violence.

The child can be seen to emerge in international law at the moment we became aware of the precariousness of our own humanity with the coming of the first and second world wars. We dwell on the regulation of the exceptions to escape into a fictional reality. (109) The progress narrative of the emergence of the child in international law occurs in parallel with the emergence of many internationally contained, but still horrendous, wars. The child's innocence provides a needed space for escape beyond the realm of war; the child is constructed as a narrative to repress the knowledge of the inhumane of humanity.

The child of the majority of the Court is characterized by its inherent and exclusive vulnerability and lack of subjectivity. The soldier is the opposite. In this narrative, the child soldier embodies a combination of two ideals intimately repellant to one another. The Child Soldiers' Decision stabilizes, momentarily, an image of childhood that is innocent, inviolate, and irrational. It reserves for adults everything else. The interplay of the different levels of narratives, using the child's voice as representative of the child's interests, creates an illusion that the child is either the subject or the addressee of international law. But the child is subjected to, rather than subject of, the discourse. The translation of children's experience into a "child-friendly" report of the Truth and Reconciliation Commission by the United Nations could be interesting, not as an artifact in itself, but as a starting point to engage with the question of how children actually read and respond to the story of 'their experience' in legal narratives. As a legal decision, the Child Soldiers' Case is impressive as an example of the use of legal skill, literary tropes, and veiled force, as well as an impressive act of repression.

Notes

* I would like to thank the anonymous referees of Alif for their many helpful suggestions, Jesse McClelland and Edefe Ojomo for their assistance in preparing the printable version, and especially Alejandro Lorite for his close reading of, and thoughtful comments on, numerous drafts of the article and his serene support.

(1) United Nations, General Assembly, 51 st session, Promotion and Protection of the Rights of Children, Impact of Armed Conflict on Children, Report of the Expert of the Secretary-General, Ms. Graca Machel, Submitted Pursuant to General Assembly Resolution 48/157, UNGA, UN Doc. A/51/306, August 26, 1996, [section] 318. Machel is the former Minister of Education of Mozambique.

(2) Roberto Mangabeira Unger, Passion: An Essay on Personality (NY: Free Press, 1984), 300.

(3) In theories of children's responses to literature, the concept of the text tailored to the needs of children can be expanded to include, for example, the visual aspect of picture books. See Lawrence R. Sipe, "Children's Response to Literature: Author, Text, Reader, Context," Theory in Practice 38.3 (1999): 120-29.

(4) Truth and Reconciliation Commission of Sierra Leone, Truth and Reconciliation Commission Report For the Children of Sierra Leone, Child-Friendly Version (Freetown: Truth and Reconciliation Commission of Sierra Leone, n. d.), <http://www.trcsierraleone.org/drwebsite/publish/index.shtml>. Interestingly, the child-friendly version can be accessed from the UNICEF website, but is not found in the UN's Dag Hammarskjold Library along side the summary of the "adult" version prepared by the Permanent Mission of Sierra Leone to the United Nations: Truth and Reconciliation Commission's Report, Sierra Leone: Executive Summary (NY: Permanent Mission of Sierra Leone, 2004).

(5) Nigel Cantwell, "The Origins, Development and Significance of the 'United Nations Convention on the Rights of the Child,'" The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Preparatoires", ed. Sharon Derrick et al. (Dordrecht: Martinus Nijhoff, 1992), 19-30.

(6) United Nations Convention on the Rights of the Child, November 20, 1989, 1577 U. N. T. S. 3.

(7) See generally Cantwell, "The Origins, Development and Significance of 'The United Nations Convention on the Rights of the Child'" and Rebeca Rios-Kohn, "Implementation of the U. N. Convention on the Rights of the Child on the UNICEF Mission," Transnational Law and Contemporary Problems 6 (1996): 287-308.

(8) See Vanessa Pupavac, "The Infantilization of the South and the UN Convention on the Rights of the Child," Human Rights Law Review 3.2 (1998): 1-6. For an analysis of the use of the cultural relativism argument with the CRC, see Sonia Harris-Short, "International Human Rights Law: Cultural Relativism and the UN Convention on the Rights of the Child," Human Rights Quarterly 25.1 (2003): 130-81.

(9) Ann Davison, "Child Soldiers: No Longer a Minor Incident," Willamette Journal of International Law & Dispute Resolution 12 (2004): 130-32.

(10) See the United Nations website addressed to children and child educators, UN CyberSchoolBus, <http://www.un.org/cyberschoolbus/humanrights/index.asp>. See also examples advertised by UNICEF of initiatives to find creative ways to educate children about their rights, such as UNICEF-Cartoons for Children's Rights, <http://www.unicef.org/crcartoons/main.htm>.

(11) Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton UP, 1980): 151.

(12) UNICEF, The State of the World's Children 2006: Excluded and Invisible (NY: UNICEF, 2006), 1-3.

(13) John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (CA: Cambridge UP, 1995), 112.

(14) See Philip C. Jessup, "The Reality of International Law," Foreign Affairs 18 (1940): 244-53; Louis Henkin, How Nations Behave (NY: Columbia UP, 1979); and Harold H. Koh, "Why Do States Obey International Law?" Yale Law Journal 106 (1997): 2599-659.

(15) United Nations Convention on the Rights of the Child, Art.1.

(16) "[T]he failure of the international community to adopt a mandatory internationally acceptable definition of the term 'child' while unfortunate, seems to recognize these difficulties." See Alex Obote-Odora, "Legal Problems with Protection of Children in Armed Conflict," Murdoch University Electronic Journal of Law 6 (June 1999): [section] 72, <http://www.murdoch.edu.au/elaw/issues/v6n2/obote-odora62.html>.

(17) Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford: Hart Publishing, 2000), 259.

(18) Peter W. Singer, Children at War (NY: Pantheon Books, 2005), 8.

(19) UNICEF, The State of the World's Children 2006, 43.

(20) Costas Douzinas, The End of Human Rights, 255.

(21) David M. Rosen, Armies of the Young: Child Soldiers in War and Terrorism (Piscataway, NJ: Rutgers UP, 2005), 132.

(22) Various formulations exist for the nature or cause of the vulnerability of children, whether it is their 'natural' immaturity or the dependence on others for sustenance. However, regardless of the understanding of the source of vulnerability, the basis of special treatment for children is frequently rhetorically based on their particular vulnerability. Often, the formulation of vulnerability is used without addressing its source: "Children are the first victims of any war. Children are the most vulnerable to injury and death." See Dan Seymour, "Children's Rights in Armed Conflict," In the Firing Line: War and Children's Rights (London: Amnesty International United Kingdom, 1999), 83.

(23) The text of all reservations and interpretive declarations to the CRC is contained in United Nations, Convention on the Rights of the Child, Reservations, Declarations and Objections Relating to the Convention on the Rights of the Child, Note by the Secretary-General, UN Doc. CRC/C/2/Rev.8, December 7, 1999.

(24) "States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities." See United Nations Convention on the Rights of the Child, Art. 38.

(25) See generally Amnesty International, Sierra Leone. Childhood: A Casualty of Conflict (August 31, 2000), <http://web.amnesty.org/library/pdf/AFR510692000ENGLISH/$File/AFR5106900.pdf>. As reported in more specific terms, "Revolutionary United Front guerrillas committed the most unspeakable atrocities and war crimes--routinely mutilating children and raping and murdering civilians." See David Rieff, "The Precarious Triumph of Human Rights," New York Times Magazine (August 8, 1999): 39.

(26) Rosen, Armies of the Young, 61.

(27) Celina Schoken, "The Special Court for Sierra Leone: Overview and Recommendations," Berkeley Journal of International Law 20 (2002): 436.

(28) Michael P. Scharf, "The Special Court of Sierra Leone", ASIL Insights (October 2000), <http://www.asil.org/insights/insigh53.htm>. See Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front [the "Lome Peace Agreement"], UN Doc. S/1999/777, July 12, 1999, Annex.

(29) Micaela Frulli, "The Special Court for Sierra Leone: Some Preliminary Comments," European Journal of International Law 11 (2000): 868.

(30) United Nations, Security Council, Report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/1999/836, July 30, 1999, Para. 18.

(31) United Nations, Security Council, Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, October 4, 2000, Annex.

(32) United Nations, Security Council, Resolution 1315, UN Doc. S.RES/1315 (2000), August 14, 2000.

(33) See Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Oxford UP, 2000), 1131.

(34) Statute of the International Criminal Court [the "Rome Statute"], UN Doc. A/CONF.183/9, July 17, 2002.

(35) The International Criminal Tribunal for Former Yugoslavia was established by Security Council Resolution 808, UN Doc. S/RES/808 (1993), February 22, 1993. The International Criminal Tribunal for Rwanda was created by Security Council Resolution 955, UN Doc. S/RES/955 (1994), November 8, 1994.

(36) Geoffrey Robertson, "Powerful Enough to Bring Justice: Setting up the Special Court for Sierra Leone," United Nations Chronicle 40.4 (2003): 74. See generally Micaela Frulli, "The Special Court for Sierra Leone: Some Preliminary Comments," European Journal of International Law 11 (2000): 857-69 and Laura A. Dickinson, "The Promise of Hybrid Courts," American Journal of International Law 97 (2003): 295-309.

(37) Avril McDonald, "Sierra Leone's Shoestring Special Court," International Review of the Red Cross 845 (March 2002): 121-43.

(38) See Alison Smith, "Child Recruitment and the Special Court for Sierra Leone," Journal of International Criminal Justice 2 (2004): 1141-53; and Michael Hoffmann, "May We Hold Them Responsible? The Prosecution of Child Soldiers by the Special Court for Sierra Leone," International Children's Rights Monitor 14 (2001): 23-26.

(39) See the early debate between Sieff and Smith: Michelle Sieff, "A 'Special Court' for Sierra Leone's War Crimes," Global Policy Forum (2001), <http://www.globalpolicy.org/security/issues/sierra/court/2001/analysis.htm>; and Alison Smith, "A Response to 'A "Special Court" for Sierra Leone's War Crimes,'" Global Policy Forum (2001), <http://www.globalpolicy.org/security/issues/sierra/court/2001/ critique.htm#1>.

(40) Kenneth Roth (Executive Director of Human Rights Watch), Justice and the Special Court for Sierra Leone: Letter to the Security Council, November 1,2000, <http://hrw.org/press/2000/11/sl-ltr.htm>.

(41) "Crane announced on November 1, 2003 that his office would not prose cute any juvenile offenders." See Rosen, Armies of the Young, 149.

(42) See Children and the Truth and Reconciliation Commission for Sierra Leone: Recommendations for Policies and Procedures for Addressing and Involving Children in the Truth and Reconciliation Commission, A Report Based on a Technical Meeting Held at Leister Peak, Freetown, June 4-6, 2001, compiled by Natalie Mann and Bert Theuermann (Freetown: UNICEF, National Forum for Human Rights, UNAMSIL/Human Rights, n. d.), <http://www.unicef.org/emerg/SierraLeone-TRCReport.pdf>.

(43) David Rosen cites Richard Wilson, an anthropologist involved in creating the TRC operational guidelines, in these terms: "Most Sierra Leoneans did not want a TRC. They wanted major offenders put on trial and punished. Instead, the United Nations Mission in Sierra Leone imposed the TRC on Sierra Leoneans because it satisfied the needs of the international community." Rosen, Armies of the Young, 149-50.

(44) Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72(E), May 31, 2004, hereinafter Prosecutor v. Norman. The full text of the case is available, in non-consolidated format, on the Special Court's website: <http://www.sc-sl.org/CDF-decisions.html>. References to the case in the lines below are to the original non-consolidated version. The opinion of the majority can be found at <http://www.sc-sl.org/Documents/ SCSL-04-14-AR72(E)-131-7383.pdf> and <http://www.sc-sl.org/Documents/SCSL-04-14-AR72(E)-131-7398.pdf>. Individual opinions, as well as the dissenting opinion by Justice Robertson referred to below, can be found at <http://www.sc-sl.org/Documents/SCSL-04-14-AR72(E)-131-7413.pdf> and <http://www.sc-sl.org/Documents/SCSL-04-14-AR72(E)-131-7430.pdf>.

(45) The Rome Statute that established the International Criminal Court lists, among the crimes for which the Court is competent, that of conscription into armed forces of anyone under eighteen. Statute of the International Criminal Court, Art. 8.2.b.xxvi [international armed conflicts] and Art. 8.2.e.vii [non-international armed conflicts]. The Rome Statute, however, did not enter into force until July 1, 2002, after the sixtieth instrument of ratification was received by the Secretary-General of the United Nations, in conformity with the final provisions of the Statute. Statute of the International Criminal Court, Art. 126.

(46) Prosecutor v. Norman, 9, [section] 8.

(47) United Nations, Security Council, Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/2504, May 3, 1993, [section] 34 (stating, in the context of the creation of the International Criminal tribunal for Former Yugoslavia by the Security Council: "In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise").

(48) Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72(E), May 31, 2004, Dissenting Opinion of Justice Robertson, 10-11, [section] 3. There were actually many letters that were being sent on the issue. It is not surprising that many of the most vocal claiming that the broader norm had crystallized into customary law came from human rights organizations. The interesting aspect of the Kenneth Roth letter is not that it is difficult to see when a human rights organization is interpreting and when it is campaigning, but to see that this difficulty exists for every organization. It appeals to the Security Council to alter the crime in the Statute, which was being drafted, from "forced recruitment" to "recruitment." Kenneth Roth, Executive Director of Human Rights Watch, Justice and the Special Court for Sierra Leone: Letter to the Security Council, November 1,2000, <http://hrw.org/press/2000/11/sl-ltr.htm>.

(49) Statute of the Special Court for Sierra Leone, Article 4, <http://www.scsl.org/scsl-statute.html>.

(50) Prosecutor v. Norman, 17, [section] 30 (citing International Criminal Tribunal for Rwanda, Trial Chamber, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, September 2, 1998, [subsection] 616-17).

(51) Prosecutor v. Norman, 17, [section] 29.

(52) Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Sam Hinga Norman, Fourth Defence Preliminary Motion Based on Lack of Jurisdiction, Amicus Curiae Brief of University of Toronto International Human Rights Clinic and Interested International Human Rights Organizations, Case No. SCSL-2003-08-PT, filed October 29, 2003. The amicus brief is reprinted (in a slightly edited form) as: "The Special Court for Sierra Leone," San Diego International Law Journal 7 (2005): 427-59.

(53) "The Special Court for Sierra Leone," 433.

(54) Prosecutor v. Norman, Dissenting Opinion of Justice Robertson, 10, [section] 2.

(55) Legal analyses addressing the question of the soundness of the legal opinion and detailing the finer points of the case have been the subject of debate. See Alison Smith, "Child Recruitment and the Special Court for Sierra Leone," Journal of International Criminal Justice 2 (2004): 1141-53; H. Harry L. Roque, "The Criminal Nature of Child Recruitment under International Humanitarian Law," Asia-Pacific Yearbook of International Humanitarian Law 1 (2005): 113-33; and Mathew Happold, "International Humanitarian Law, War Criminality and Child Recruitment: The Decision of the Special Court for Sierra Leone in Prosecutor v Samuel Hinga Norman" Leiden Journal of International Law 18 (2005): 283-97.

(56) Prosecutor v. Norman, Dissenting Opinion of Justice Robertson, 19, [section] 24.

(57) The disagreement over the existence of the norm is not an accident of this particular norm, but can be found in the very structure of legal argument. See generally Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CA: Cambridge UP, 2005).

(58) "Describing the Judge in gender-neutral language distorts the figure, because he is one of the multiple archetypes of virtuous male power, defined by semiotic contrast with the Mother, the Sybil, ... and other images of female virtue and power." See Duncan Kennedy, A Critique of Adjudication: Fin de siecle (CA: Harvard UP, 1997), 3.

(59) Robert Cover, "Foreword: Nomos and Narrative," Harvard Law Review 97 (1983): 40.

(60) Robert Cover, "Violence and the Word," Yale Law Journal 95 (1986): 1601.

(61) The rules governing interpretation of legal texts are found in the Vienna Convention of the Law of Treaties of 1969, 1155 U.N.T.S. 331. See Detlev Vagts, "Treaty Interpretation and the New American Ways of Law Reading," European Journal of International Law 4 (1993): 472-505.

(62) See the critical commentary given by Robert Cover on H. L. A. Hart's idea of "secondary rules" in "Violence and the Word," 1612 ff, as well as his discussion of orders of narrative in relationship to the distinction between primary and secondary texts in "Nomos and Narrative," 53 ff.

(63) William E. Conklin, "Teaching Critically within a Modern Legal Genre," Canadian Journal of Law and Society 8 (1993): 38 (referring to the work of M. M. Bakhtin, "Discourse on the Novel," The Dialogic Imagination: Four Essays, eds. C. Emerson and M. Holquist (Austin: U of Texas P, 1981). Note that the authors refer to law in general as a secondary text, and not specifically to judicial decisions. Boundaries of the legal are not easy to determine.

(64) Louis Henkin et al., International Law: Cases and Materials (Westgroup: American Casebook Series, 1998), 1046.

(65) Cover, "Nomos and Narrative," 54.

(66) Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72(E), May 31,2004, Summary of the decision, [section] 4, <http://www.sc-sl.org/ summary-childsoldiers.html>.

(67) Prosecutor v. Norman, Dissenting Opinion of Justice Robertson, 6, [section] 6.

(68) Prosecutor v. Norman, Dissenting Opinion of Justice Robertson, 8, [section] 9. Robertson's reference to Shakespeare is a reference to a text written by a recognized authority in international law. See Theodor Meron, "Shakespeare's Henry V and the Law of War," American Journal of International Law 86 (1992): 1-45.

(69) Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-14-AR72(E), May 31, 2004, Concurring Opinion of Justice King, 2, [section] 7, <http://www.sc-sl.org/Documents/SCSL-04-14-AR72(E)-131-7398.pdf>.

(70) Rosen, Armies of the Young, 84.

(71) Rosen, Armies of the Young, 85.

(72) See Robert Cover, "Nomos and Narrative," 40.

(73) William E. Conklin, "Human Rights, Language, and Law: A Survey of Semiotics and Phenomenology," Ottawa Law Review 27 (1995): 159.

(74) Of course, it was not only the Court decision that stabilized the narrative of the child. The Court's decision was backed by an intricate legal framework that set the official narrative of the child (as under eighteen) against other conceptions. See Rosen, Armies of the Young, 152: "Throughout Sierra Leone, access to development funds requires that communities accept the official view that former child soldiers are children and victims worthy of reconciliation and reintegration into society. Sierra Leoneans do not, however, fully embrace the CRC definition of the child or the cultural connotations of innocence embedded in the Western concept of the child. Many communities take on this view only because it is tied to a resource structure that enables them to rebuild lives."

(75) The primary narratives found in the "secondary narrative" of the Court when dealing with child soldiers are always themselves of the "secondary genre" in the sense used by William Conklin. That is, they are immediate experiences that have already been filtered, collected, and categorized by authors. In this case, it is unclear what could count as an authentically 'primary' narrative. See Conklin, "Teaching Critically within a Modern Legal Genre," 38-39 (explaining how 'successful' legal training produces fluency in the secondary genre of legal argument that restates the primary narratives of victims and clients). See also Conklin, "Human Rights, Language, and Law": "Thus, in a metalanguage which is composed by expert knowers (of the forms associated with the signifiers in the chains of the metalanguage), the expert speaks about the first chain of signifiers. Each narrative of the legal process speaks about the signifiers of the previous story. The judge attempts to ground her or his narrative, not in the client's original experience, but through the play which counts: the lawyer's play of authoritative signifiers. As the secondary genre takes its hold of our consciousness, we citizens begin to believe that we are 'governed' by the 'rule of law'. Order is believed to ensue. That order is chains of signifiers which re-present the non-expert's utterances into a structure which experts will recognize as meaningful" (153).

(76) See generally P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca: Cornell UP, 2003).

(77) P. W. Singer, Children at War (NY: Pantheon Books, 2005).

(78) Singer goes to great lengths at the beginning of the book to claim that children have never been used in war throughout history in order to establish that child soldiers are a new phenomenon. He argues against the cases in history where children have been thought to be soldiers as myths, going as far as to argue that in the Children's Crusade, the children en route to the Holy Land were instead sold into slavery, never in fact becoming soldiers. Singer's story establishes a general moral rule throughout history that relies on children being slaves rather than soldiers. See Singer, Children at War, 12.

(79) There are several good surveys and general theories of how stories of 'victims' are used and misused in the act of representation in the legal narrative of human rights. See, for instance, Conklin, "Human Rights, Language, and Law," 134-43; and Kay Schaffer and Sidonie Smith, "Conjunctions: Life Narratives in the Field of Human Rights," Biography 27.1 (Winter 2004): 1-24.

(80) See Louis Althusser, "Ideology and State Ideological Apparatuses (Notes Towards an Investigation)," Lenin and Philosophy and Other Essays, Trans. Ben Brewster (NY: Monthly Review P, 1971), 127-86.

(81) Slavoj Zizek explains in detail the process or relationship by which ideology dialectically constructs its presupposed content. Zizek's dialectic is far more complicated than a linear process caricatured as "the olddies and the new is born," a process that is perpetually in motion. Using this complex dialectical relationship, Zizek explains the totalitarian leader as relying on an external reference to the "People," who exist as the presupposed content of the ideology that legitimates the totalitarian leader while simultaneously, and precisely because the leader is totalitarian, the "People" do not exist independent of their leader as he is their embodiment. See Slavoj Zizek, The Sublime Object of Ideology (Verso: London, 1989), 144-49.

(82) Different conflicts have very different impacts on children, as they are integrated into local ideological frameworks that 'use' and construct child soldiers differently. The construction of the girl soldier is an important case in point. Although it may be the case that in Sierra Leone girls were usually used in conflict as 'wives' or in other roles to get access to their bodies, this sexual exploitation has come to represent the experience of the girl soldier across the board. It has been found, however, that in Sri Lanka girls are almost never used sexually when they are recruited into armed groups. See Yvonne E. Keairns, The Voices of Girl Child Soldiers: Summary (NY: Quaker United Nations Office, 2002), 3.

(83) Singer, Children at War, 74.

(84) Singer, Children at War, 74.

(85) "The Special Court for Sierra Leone," 433, citing Amnesty International, Sierra Leone: Childhood A Casualty of Conflict (August 31, 2000), 12, <http://web.amnesty.org/library/pdf/AFR510692000ENGLISH/$File/ AFR5106900.pdf>.

(86) Singer, Children at War, xi.

(87) There are important and notable exceptions. See, for instance, Rachel Brett and Irma Specht, Young Soldiers: Why They Choose to Fight (Geneva: International Labor Organization, 2004), 1-5,137-64.

(88) This observation does not imply that Singer is doing 'bad' social science work. The art of storytelling exists in advocacy and in the social sciences. It is only curious that advocacy groups are excluded in the assertion of social scientific knowledge here.

(89) Singer, Children at War, 7.

(90) Singer, Children at War, 99.

(91) Singer, Children at War, 135.

(92) Rosen, Armies of the Young, 134-35.

(93) "The result is that when children are present in a conflict, experience has shown that they are among the most vicious combatants in the war. As one UNICEF worker put it, 'Boys will do things that grown men can't stomach. Kids make more brutal fighters because they haven't developed a sense of judgment'" qtd. in Singer, Children at War, 106.

(94) Singer, Children at War, 106.

(95) Rosen, Armies of the Young, 134.

(96) Slavoj Zizek, Did Somebody Say Totalitarianism? Five Interventions in the (Mis)use of a Notion (London: Verso, 2001), 150-54.

(97) Statistically, children in "forced and bonded labour," who are estimated by UNICEF to be 5,700,000, far outnumber children in "armed conflict," who are 300,000 according to common estimates, and remain "one of the most hidden problems of our times." UNICEF, The State of the World's Children 2006, 51.

(98) There are roughly fourteen million refugee or internally displaced children in the world, according to UNHCR's general estimation that about 45% to half of its target population is under eighteen. As far as refugee children (i.e. children who have fled across a border) are concerned, UNHCR leads an information and awareness-raising campaign through a website simply named "NineMillion.org," <http://ninemillion.org>. The accounts of children made refugees and IDPs, as they are often fleeing wars, are similar to those of child soldiers, except that child refugees do not generally commit human rights abuses. See Simon Russell, "Children as Refugees," In the Firing Line: War and Children's Rights, 70.

(99) Rosen, Armies of the Young, 61.

(100) Giorgio Agamben, The Open: Man and Animal, trans. Kevin Attell (Stanford: Stanford UP, 2004), 29-31.

(101) See, for instance, Slavoj Zizek, "From Politics to Biopolitics ... and Back," The South Atlantic Quarterly 103.2/3 (2004): 507.

(102) Singer, Children at War, 102.

(103) Singer, Children at War, 171.

(104) Singer, Children at War, 100.

(105) See David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton: Princeton UP: 2004), 269-72.

(106) Congressional Record. 109th cong., 1st sess., 2006, 152, no.20: H363.

(107) Aaron Glantz, "Soldier Who Chose Jail over Iraq Goes Home," Interview with Kevin Benderman, Inter Press Service News Agency (September 6, 2006), <http://ipsnews.net/print.asp?idnews=34602>.

(108) Slavoj Zizek, Welcome to the Desert of the Real.t: Five Essays on September 11 and Related Dates (London: Verso, 2002), 72.

(109) Zizek, The Sublime Object of Ideology, 148-49.