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Are JROTC and cap on a collision course with CROC?

I. INTRODUCTION
II. INTERNATIONAL LAW AND NATIONAL CADET PROGRAMS
   A. Child Soldiers Under International Law
   B. CAP and JROTC
III. ARE JROTC AND CAP CADETS CHILD SOLDIERS?
   A. Formally and Practically, Cadets are Not Members of the
      Armed Forces
   B. Are JROTC and CAP "Recruiting" For Purposes of the
      Optional Protocol?
IV. CONCLUSION


I. INTRODUCTION

For compelling humanitarian and practical reasons, international law prohibits the use of very young people in combat and forbids their joining the armed forces of a state. (1) In cruel and flagrant violation of the law of war, child soldiers have been deployed to commit atrocities, and children have been themselves injured or killed by performing dangerous tasks or otherwise abused. (2) This spectacle has led to several international agreements designed to ensure that only people of sufficient maturity are conscripted, serve in a nation's armed forces, or participate in combat. Most notable among these are the Convention on the Rights of the Child (CROC) (3) and its Optional Protocol (OP) on the Involvement of Children in Armed Conflict. (4) The United States is not a party to CROC, but is a signatory of the OP.

In pursuing important humanitarian and policy goals, the letter of the law may not always coincide precisely with the harm the law is intended to prevent. This article evaluates suggestions from the American Civil Liberties Union (ACLU) and other commentators (5) that military-related youth activities sponsored by the United States, such Junior Reserve Officers Training Corps (JROTC) and the Civil Air Patrol Cadet program (CAP), implicate international prohibitions on child soldiers. The issue is particularly serious because the Child Soldier Accountability Act of 2008 provides for up to 20 years in prison for those who recruit or use those under the age of 15 in a military force. (6)

On the one hand, these volunteer youth activities, which never involve combat, are a far cry from the travesty of children being exposed to the physical and psychological risks of warfare. Cadets in JROTC or CAP are not legally part of the U.S. armed forces.

However, JROTC and CAP involve training and operational activities, to include the use of weapons, by children as young as 12 who wear U.S. military uniforms. In addition they are often supervised, directly or indirectly, by active or retired military members and sometimes perform humanitarian or search and rescue missions at the direction of the military. Furthermore, military regulations provide that achievement in JROTC or CAP will allow young people to enter the military at an advanced rank, suggesting that the activities constitute military training. Accordingly, there is a non-frivolous argument that international agreements to which the United States is a party implicate such activities.

Part I of this article describes the international law restricting the use of children below a certain age in the armed forces of a nation, in particular the Optional Protocol on the Involvement of Children in Armed Conflict to the Convention on the Rights of the Child. Part I also describes CAP and JROTC, U.S. government-created programs involving young people which are affiliated with the United States military.

Part II explores whether the participation of children between the ages of 12 and 18 in CAP and JROTC cadet programs potentially violates international law. It argues that government activities involving children may implicate the treaties even if young people are not as a formal legal matter members of the armed forces; faithful application of international law requires a functional analysis of the duties of particular institutions and individuals participating in them. It is also clear that activities involving training and education can implicate the treaties, in addition to operational service and performance of duty.

Nevertheless, applying a broad, functional analysis, the article concludes that the youth programs are not prohibited by international law. Cadets are not formally in the armed forces nor do they perform military functions, which would make them de facto part of the military. Importantly, their activities do not expose them to harm or work that would otherwise be performed by military forces.

It is true that the programs may well be designed to encourage young people to consider military service and in many cases, cadets end up joining the armed forces. (7) It is also true that international law prohibits voluntarily or involuntarily "recruiting" children under certain ages into armed forces, as well as, utilizing them in combat. However, this article proposes that the term "recruiting" as used in international law means actual induction, enlistment, or otherwise becoming part of the armed forces. It does not cover advertising, provision of information, or sponsoring activities designed to encourage patriotism or favorable attitudes toward military service--even if all of these things may encourage children, months or years later when they become adults, to enter the armed forces. Therefore, while JROTC and CAP include training which may be useful in a military career, and may make military service appear attractive, the same can be said for high school education itself or membership in the Boy/Girl Scouts. The article concludes that CAP and JROTC violate neither the letter nor the spirit of international law.

II. INTERNATIONAL LAW AND NATIONAL CADET PROGRAMS

A. Child Soldiers Under International Law.

For decades, international treaties have restricted the voluntary enlistment or conscription of children into the armed forces, as well as, the use of children in combat. The Convention on the Rights of the Child set the minimum age of 15 for participation in direct hostilities (8) or recruitment into the armed forces. (9) The Rome Statute of the International Criminal Court (10) and the Additional Protocols to the 1949 Geneva Conventions also use 15 as the critical age. (11) The International Committee for the Red Cross has concluded that the principle that "[c]hildren must not be recruited into armed forces or armed groups" has become a rule of customary international law. (12) In addition, the Child Soldiers Accountability Act of 2008 prohibits recruiting or using children under 15 as soldiers. (13)

Many commentators and NGOs also believed that 15- and 16-yearolds should also be excluded from combat. (14) The United Nations Commission on Human Rights began the process of drafting an additional agreement in 1994; it became the Optional Protocol to the CROC on the Involvement of Children in Armed Conflict. As of February 2017, the Optional Protocol had been adopted by the United States and 166 other nations. (15) Another 13 have signed but not ratified it. (16) It provides separate rules for participation in hostilities, conscription, and voluntary recruitment. (17)

Regarding participating in combat, under Article 1, states are required to "take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities." (18)

Article 2 restricts conscription of children, requiring states to "ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces." (19)

While there was consensus that those under 18 should not be exposed to combat or conscripted, the drafters of the Optional Protocol could not agree on a fixed age for voluntary recruitment. (20) Instead, Article 3 sets out several substantive and procedural safeguards. (21) Paragraph 1 requires states to "raise the minimum age for the voluntary recruitment of persons into their national armed forces" from the age of 15 established by the CROC itself. (22) Paragraph 2 requires states to "deposit a binding declaration upon ratification" identifying the minimum age their national armed forces will require. (23) The U.S. ratification reserved the right to recruit children 17 years of age. (24) Under Paragraph 3, if a state permits voluntary recruitment of those under 18, that state must ensure that recruitment is knowing and voluntary, and based on parental consent. (25) Notably, the prohibition on participation in combat applies to those who voluntarily enlist. Accordingly, while 17-year-olds may enlist in the U.S. armed forces, they must be shielded from participation in hostilities. (26)

The protocol also creates an exception for military schools: "The requirement to raise the age in paragraph 1 of the present article does not apply to schools operated by or under the control of the armed forces of the States Parties." (27) Thus, some forms of military education may take place below the age required for enlistment.

B. CAP and JROTC

The U.S. armed forces operate or cooperate with several programs for young people, most prominently the Junior Reserve Officers Training Corps (JROTC), and the Civil Air Patrol (CAP) cadet program. All five military services maintain JROTC units. (28) Typically, they are located in high schools and staffed by retired service members although the law authorizes the detail of active duty military members. (29) The program is funded by an appropriation from Congress, however, host schools must pay the instructors the difference between their retired pay and what they would have earned if still on active duty. (30)

CAP is a congressionally chartered public benefit corporation. (31) Its three statutory missions are aerospace education, emergency services, and the cadet program. (32) Most of its funding also comes from Congress. (33) When it performs missions for the United States, it is the U.S. Air Force Auxiliary (34) and deemed part of the Total Force by U.S. Air Force doctrine. (35) As of 2015, CAP has 23,000 cadets in squadrons across the country. (36) Its members are authorized to wear U.S. Air Force uniforms with distinctive insignia. (37) It is supervised by a Board of Governors, some of whom are appointed by the Air Force and others who are elected by CAP members. (38) However, the Department of the Air Force is the ultimate authority over CAP by virtue of its statutory authority to issue regulations governing CAP activities. (39)

Even an informed observer might mistake a group of mid-to-late teen CAP or JROTC cadets, marching in formation wearing immaculate U.S. military uniforms, for young members of the American armed forces. But CAP and JROTC are not part of the armed forces of the United States as defined in Title 10 of the United States Code, (40) and likewise, CAP and JROTC cadets are civilians. (41)

At the same time, cadet activities are not wholly independent of the military. Neither CAP nor JROTC are, as a formal matter, part of the military recruiting apparatus, but it may well be that Congress funds these organizations in large part because they function as recruiting programs. (42) CAP and JROTC familiarize young people with the armed forces, educate them about military careers, and encourage them to think about military service as an honorable way of life. The Army JROTC regulation declares that one purpose of the program is to teach "basic military skills." (43)

Most cadet activities are educational. Cadets study military history, visit military installations, participate in lectures with current or former members of the armed forces, and engage in physical training. The programs also include marksmanship training. (44 Additionally, cadets may engage in some community-service-related operational activities. For example, properly trained CAP cadets may be members of search and rescue teams assigned by the Air Force to find missing aircraft.

JROTC and CAP training is recognized as related to military service. JROTC and CAP cadets who complete a certain portion of the cadet program are permitted to enlist in the military at an advanced pay grade. (45) The CAP and JROTC cadet programs, then, raise a question. They are not technically part of the armed forces of the United States. Yet, they have a reasonably close connection to the armed forces. The next section will address whether cadets, in any sense, are child soldiers.

III. ARE JROTC AND CAP CADETS CHILD SOLDIERS?

A. Formally and Practically, Cadets are Not Members of the Armed Forces.

Some commentators have suggested that allowing those under age 17 or 18 to participate in cadet programs violates the Optional Protocol (46) and the U.N. Committee on the Rights of the Child has inquired about U.S. cadet programs. (47) To be sure, if a nation's military cadet program made children a formal part of their armed forces, that might well violate the Optional Protocol. However, the opposite is not necessarily the case; simply because children are legally civilians cannot be wholly dispositive. If manipulation of details of domestic law could make the Optional Protocol inapplicable, then the agreement would have a fatal loophole. For example, if formal law were conclusive, it would be permissible, notwithstanding the clear prohibitions of Articles 1 and 2 of the Optional Protocol, for states to draft children not into their "armed forces" proper, but into the "National Labor Service," say, or even the "National Police Service" and then use those formations in combat or quasi-combat roles. Accordingly, if international obligations are to have any effect, "armed forces" must have a functional, operational definition, independent of the vagaries and technicalities of domestic law. (48)

Nor is it dispositive that CAP and JROTC cadets do not receive combat training or have combat duties. In general, even military members who do not have a combat function and may never carry weapons--medical personnel, chaplains, cooks and bakers--are not for that reason any less subject to military discipline, authority, and risk. In addition, it would violate the spirit and the letter of international law to use children even in unarmed roles where they were exposed to combat. International law is concerned both with the harm to children from participating in acts of violence and from being injured themselves. Concretely, it may be that, without violating the Optional Protocol, children under 18 could be drafted into, or allowed to volunteer for, a National Emergency Medical Services Corps, trained as medical technicians, and asked to provide services in the community. (49) However, it would be impermissible if the Corps was attached to the nation's army and used in combat operations. In that event, children would be exposed to the risks of combat even if they were not required to engage in it themselves. (50)

Nevertheless, even under a broad, practical definition, cadets are not part of the armed forces. Cadets do not participate in combat, and they are never deployed or used to support combat operations. Cadets do sometimes perform functions of use to the United States, but they are civil, community functions rather than military in nature. Emergency services and disaster relief missions performed by cadets are not traditional military activities, or substitutes for military forces, other than to the extent that they are substitutes for firefighters, EMTs, and other civilian personnel.

One defining characteristic of military service is legal compulsion. (51) Whether conscripted or volunteers, military members are obligated to carry out lawful orders regardless of risk. This loss of autonomy is a significant reason for the restriction of military service to those old enough to appreciate the nature of the obligation. By contrast, cadets may quit at any time. Federal law does not subject them to the Uniform Code of Military Justice, or otherwise obligate them to obey orders on pain of punishment. (Of course, they may be kicked out of the program for failing to obey a legitimate instruction, just as a student can be kicked out of the school band, soccer team, or any other club or extracurricular activity for violation of its rules.) Accordingly, even if cadets were put under the supervision of a rogue commander, no legal order could oblige them to perform combat or combat support duties in a way different than could a direction of a rogue little league coach. The lack of legal compulsion suggests that their participation is not equivalent to service in an armed force.

The strongest argument for considering CAP and JROTC as part of the armed forces is the training component. CAP and JROTC experience can directly translate to the form of military promotion if a cadet later enlists. (52) In spite of the absence of either danger or compulsion, for purposes of international law, the question remains whether CAP and JROTC are de facto training units of the U.S. armed forces. If so, the cadet programs are arguably protected to some degree by the exception for "schools operated by or under the control of the armed forces," which are not required to raise the age of voluntary recruitment above the age of 15 set in the CROC. (53) CAP is not a "school," however, and even a JROTC program located in a high school is not, itself, a school. Additionally, even if JROTC and CAP are somehow close enough to a school to benefit from the exception, because they allow students under age 15 to join, the question of whether cadet programs constitute military training remains.

Functionally, the training offered to cadets is insufficient to make them a de facto component of the armed forces. First, while JROTC and CAP accomplishments can earn promotions, so can other clearly non-military activities, such as completion of college units before enlisting, (54) or achievement in Boy or Girl Scouts. (55) Cadet training, like college or Scouting, signals interest, knowledge, and ability, and the capacity to accommodate to a bureaucratic enterprise, nothing more.

Second, cadets are not exempted based on their experience from any required training once they enter the armed forces. CAP and JROTC training is unlike Senior ROTC at a college or university which, upon completion, constitutes the military training necessary for the award of a commission. Senior ROTC is a substitute for attending a service academy or a dedicated form of commissioning training; JROTC and CAP are not. Similarly, the firearms training experienced by some cadets in JROTC or CAP does not lead to military qualifications or exemption from any otherwise required instruction of new recruits.

B. Are JROTC and CAP "Recruiting" For Purposes of the Optional Protocol?

While cadets are not legally or functionally in the U.S. armed forces, some commentators have proposed that the U.S. has violated its obligation not to "recruit" children under age 17. One scholar wrote: "The Protocol provides that children under the age of eighteen may not serve in the military and should not be recruited when under sixteen-years-old. It is clear that the United States falls short on both measures." (56) Another scholar argued: "The U.S., by binding declaration, set the absolute minimum age at seventeen years. Despite being part of this treaty, the U.S. military recruitment system openly targets high school students less than seventeen years of age." (57) The ACLU has claimed that JROTC is an impermissible recruiting method. (58) Again, it would be difficult indeed to deny that Congress funds JROTC and CAP in part because cadets often enter the armed forces. (59)

These critiques raise the question of precisely what "recruiting" means for the purposes of the Optional Protocol. The core meaning of "recruitment" is actual conscription, enlistment, or induction whereby the person "recruited" becomes a member of the armed forces and is obliged to obey orders and perform military duty. Thus, in a set of principles designed to carry out the international prohibition on use of child soldiers, UNICEF defined "recruitment" as "compulsory, forced and voluntary conscription or enlistment of children into any kind of armed force or armed group." (60)

As some commentators have argued, however, "recruitment" could conceivably include governmental marketing and provision of information or encouragement. Perhaps "recruitment" is broad enough to include any actions by a state party with the purpose or effect of resulting months or years in the future in "recruitment" in the sense of actual entry. The Blue Angels, Thunderbirds, and Golden Knights may well be, in part, designed to interest young people in military service. If the government knowingly permits a child of 12 to see them, or that child is given a brochure by a military recruiter at a mall or an airshow, and advised to keep physically fit and complete high school if the child wants to join the U.S. armed forces in the future, has a war crime been committed?

The structure and history of the Optional Protocol strongly suggest that "recruiting" has the exclusive meaning of entry into the armed forces, and does not include the provision of information, encouragement, or efforts to shape attitudes. For example, the drafting history reflects that at an early meeting, "[t]he attention of the working group was drawn to different meanings which the term 'recruitment' had in different languages. Alternative terms proposed for eventual use in the draft optional protocol included 'conscription', 'enlistment', 'enrolment' as well as 'admission' and 'registration.'" (61) None of these meanings included encouragement or advertising. The Quakers proposed a formal definition of "recruit," which would include "both compulsory conscription and voluntary enlistment or participation." (62) "Recruitment" was repeatedly used as synonymous with enlistment or actual joining an armed force. (63)

The purposes of the Optional Protocol, as set out in its preamble, are all aimed at the dangers of actual military service. For example, the Optional Protocol aimed to "increase the protection of children from involvement in armed conflict," and endorsed other international actions designed to "ensure that children under the age of 18 years do not take part in hostilities," and prohibit "forced or compulsory recruitment of children for use in armed conflict." (64)

All uses of "recruitment" in the text of the Optional Protocol contemplate actual joining. Thus, each state party is obligated to "set forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced." (65) Use of the word "into" suggests that it regulates actual entry; the language is simply inconsistent with the idea that it regulates mere exposure to information or encouragement to consider taking action in some future year.66 The Optional Protocol also obligates state parties "to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this protocol are demobilized or otherwise released from service." (67) Here, too, the implication is that children "recruited" have actually served in an armed force, not merely been encouraged to consider joining at some point. (68)

Nothing in the drafting history suggests that the Optional Protocol was intended to eliminate governmental promotion of military service. It is unimaginable that such a significant feature of the agreement was intended but unmentioned. Schools must teach some things in preference to other things, and communities must promote some values at the expense of others. The CROC itself recognizes a child's right to education, and provides that it shall include "[t]he development of respect ... for the national values of the country in which the child is living." (69) There is no hint in the text or drafting history of the Optional Protocol that this aspect of the CROC was being reconsidered.

In the United States, the Supreme Court has recognized that the government may inculcate values, including suggesting that military service is honorable and rewarding. For example, the Court stated that "local school boards must be permitted to establish and apply their curriculum in such a way as to transmit community values, and ... there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." (70) The Court has also recognized that teachers "influence the attitudes of students toward government, the political process, and a citizen's social responsibilities." (71) Brown v. Board of Education itself recognized that education "is required in the performance of our most basic public responsibilities, even service in the armed forces." (72) The Court has also recognized that the federal government (73) and states74 have a legitimate interest in promoting military service. (75)

The mere fact that the United States certainly would have objected to this interpretation had it been raised does not necessarily mean that the terms of the Optional Protocol must match U.S. values. It is simply not plausible that a major and highly controversial feature of the agreement could have been intended by the drafters, but with absolutely no attention or discussion. As it says in plain language, the Optional Protocol regulates "recruitment into the armed forces," and therefore solely affects activities and processes at the end of which the recruit is in the armed forces. Limits on education and encouragement the United States may offer to encourage children to be patriotic and, when they have reached the age required by the Optional Protocol, consider voluntarily joining the armed forces must be found in other law.

IV. CONCLUSION

International law prohibits young people from serving in combat or being inducted into the armed forces for excellent reasons: children should not be subjected to the physical and moral hazards of combat at all. Even voluntary induction is prohibited for people too young to make important decisions. But JROTC and CAP cadets are not formally or functionally in the armed forces, do not perform military duties, and are not subject to recruitment as the term is used in international law. As a result, they are not exposed to the dangers of combat, or asked to make commitments they are too young to understand. Accordingly, their creation and operation by the United States violates neither the spirit nor the letter of international law.

(1) See, e.g., Children in Armed Conflict: Interim Report of the Special Representative of the Secretary General, Mr. Olara A. Otunnu, submitted Pursuant to General Assembly Resolution 52/107, at 9 E/CN.4/1998/119 (Mar. 12, 1998) ("An alarming trend in recent years is the increasing participation, direct and indirect, of children in armed conflict. It is estimated that up to a quarter of a million children under the age of 18 are serving as combatants in government armed forces or armed opposition groups in ongoing conflicts. Indeed, the development and proliferation of lightweight automatic weapons has made it possible for very young children to bear and use arms. Many more children are being used in indirect ways which are more difficult to measure, such as cooks, messengers and porters. Children have also been used for mine clearance, spying and suicide bombing.").

(2) For a recent article on the topic, see Michela Wrong, Making a Murderer in Uganda, FOREIGNPOLICY.COM, Jan. 20, 2016, http://foreignpolicy.com/2016/01/20/making-amurderer-dominic-ongwen-uganda-icc/.

(3) G.A. Res 45/25, Convention on the Rights of the Child (Nov. 20, 1989) [hereinafter CROC], http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf.

(4) Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, G.A. Res. 54/263, U.N. Doc. A/RES/54/54/263 (May 25, 2000) [hereinafter OP],

(5) See infra notes 45, 55-57 and accompanying text.

(6) 18 U.S.C. [section]2442(2012).

(7) "Elda Pema & Stephen Mehay, The Effect of High School JROTC on Student Achievement, Educational Attainment, and Enlistment, 76 S. Econ. J. 533, 543 (2009) (stating "JROTC participants are 75-150% more likely to enlist" than non-participants.).

(8) CROC, supra note 3, art. 38, [paragraph] 2.

(9) Id. at [paragraph] 13.

(10) Under the Rome Statute of the International Criminal Court, war crimes include "conscripting or enlisting children under the age of fifteen years into national armed forces or using them to participate actively in hostilities" Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), art. 8(2)(b)(xxvi), https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94 -0a655eb30e16/0/rome_statute_english.pdf, (applicable to international armed conflict); Id. at art. 8(2)(e)(vii) ("conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities" (applicable to internal armed conflict).

(11) Protocols Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, art. 77(2), 1125 U.N.T.S. 3, 7. See also Michael J. Dennis, The ILO Convention on the Worst Forms of Child Labor, 93 AM. J. INT'L L. 943, 944 (1999) ("Several delegations, including the worker members and the African government group, proposed that the Convention impose an outright ban on the use of children (i.e., persons under eighteen) in all kinds of military activities. They argued that activities such as military training and participation in armed conflict necessarily jeopardize the health or safety of children and should therefore be considered as one of the worst forms of child labor.").

(12) JEAN-MARIE HENCKAERTS ET AL., INTERNATIONAL COMMITTEE OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 482(Rule 136) (2005).

(13) 18 U.S.C. [section] 2442(a) (2012).

(14) Mary Robinson, Genocide, War Crimes, Crimes Against Humanity, 23 Fordham Int'l L.J. 275, 282 (1999) ("I strongly support the raising of the age limit for recruitment of children into armed forces from fifteen to eighteen and I call upon governments--including the United States--to adopt the Optional Protocol to the Convention on the Rights of the Child, which would raise the age limit to 18.").

(15) United nations Human Rights Office of the High Commissioner, Optional Protocol to the Convention on the Rights of the Child on the Involvement of children in Armed Conflict, http://indicators.ohchr.org/ (last updated Feb. 20, 2017).

(16) Id.

(17) Nsongurua J. Udombana, War Is Not Child's Play! International Law and the Prohibition of Children's Involvement in Armed Conflicts, 20 TEMP. INT'L & COMP. L.J. 57 (2006) ("The wind was singing in the branches and leaves were echoing when the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts ("CRC Protocol") entered into force on February 12, 2002.2 That date heralded the beginning of an end to the heinous practice of recruiting children, which the CRC Protocol defines as persons less than eighteen years of age, 3 into armed forces by state and non-state actors to fight wars that they do not even understand.").

(18) OP, supra note 4, at art. 1.

(19) Id. at art. 2.

(20) One informed commentator explained:
   [M]ost countries around the world wanted to ban the recruitment of
   any individual under the age of 18. However, because the United
   States recruits students in high school, the U.S. military insisted
   that the age be reduced to 17. This position put the United States
   in the posture of preventing an international consensus and seeming
   to be in league with those who were not committed to banning this
   terrible abuse at all. It was Ed Cummings who originated the idea
   of allowing voluntary recruitment of 17 year olds but not allowing
   them in combat until they were 18, creating an international
   consensus that put the focus where it always should have been, on
   militias that conscript 12,13 and 14 year olds.


Honorable Tom Lantos, Extension of Remarks by Representative Tom Lantos of California February 28, 2006 in the House of Representatives, 38 GEO. WASH. INT'L L. Rev. 637, 639 (2006). See also Jo Becker, From Opponent to Ally: The United States and Efforts to End the Use of Child Soldiers, 22 MICH. ST. INT'L. L. REV. 595 (2014) (describing U.S. ratification process); Steven Freeland, Mere Children or Weapons of War-Child Soldiers and International Law, 29 U. LA VERNE L. REV. 19, 36 (2008) ("While the terms of the 2000 Children in Armed Conflict Protocol raise the minimum age to eighteen for non-government armed forces, they fall short of the standards set by some of the previous instruments--the 1999 ILO Convention and the African Charter--in relation to recruitment into State armed forces. In this regard, the 2000 Children in Armed Conflict Protocol fails to respond to the magnitude of the problem with appropriate prohibitions and restrictions on the recruitment of Child Soldiers."); Steven Freeland, Child Soldiers and International Crimes-How Should International Law Be Applied?, 3 N.Z.J. PUB. & INT'L L. 303, 316 (2005) ("Articles 2 and 3 of the Children in Armed Conflict Protocol have the combined effect of raising the minimum age of compulsory recruitment to 18 years, but allowing for voluntary recruitment at a younger age. States are obligated to raise--to some undefined level--the age of voluntary recruitment from 15 years. This article has previously highlighted the difficulties in regarding much of the "voluntary" recruitment that does occur as a genuine expression of the child's free will and, in any event, in many cases it will be difficult to prove a child's age when he or she volunteers.").

(21) See also Rose Mukhar, Child Soldiers and Peace Agreements, 20 Ann. Surv. Int'l & Comp. L. 73, 83 (2014) ("While the Child Soldiers Protocol reminds member states that children under the age of eighteen are entitled to special protection, it does not require a minimum age of eighteen for voluntary recruitment into the armed forces.").

(22) OP, supra note 4, at art. 3, [paragraph] 1.

(23) Id. [paragraph] 2.

(24) Declaration and Understandings by the United States to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=595&ps=P.

(25) OP, supra note 4, at art. 3, [paragraph] 3.

(26) As one commentator explained, the Optional Protocol:
   does not, however, preclude voluntary recruitment of sixteen- and
   seventeen-year-olds into armed forces. An express Protocol
   provision allowed the United States to sign and ratify the Optional
   Protocol even though it has not yet ratified the underlying
   Convention on the Rights of the Child. Thus, the key change in
   policy for the United States will be that seventeen-year-olds may
   still voluntarily join the armed forces, but must be kept out of
   combat until age eighteen.


Mark E. Wojcik, et al., International Human Rights, 35 Int'l Law. 723, 725-26 (2001). See also Major John T. Rawcliffe, Child Soldiers: Legal Obligations and U.S. Implementation, Army Law., Sept. 2007, at 1, 3 ("To ensure that all feasible measures are taken to ensure that those still seventeen when assigned to their first post-training unit do not take a direct part in hostilities, the U.S. military services have adopted implementation plans. All the service policies well exceed the requirement to take 'all feasible measures' to avoid 'direct participation' in hostilities").

(27) OP, supra note 4, at art. 3, [paragraph] 5. Note, however, that military schools may be legitimate targets under the law of war. See Gregory Raymond Bart, The Ambiguous Protection of Schools Under the Law of War-Time for Parity with Hospitals and Religious Buildings, 40 Geo. J. Int'l L. 405, 436 (2009). Accordingly, allowing young people to attend military schools may put them in harm's way.

(28) 10 U.S.C. [section] 2031(a)(1) (2012) ("The Secretary of each military department shall establish and maintain a Junior Reserve Officers' Training Corps....").

(29) Id. [section] 2031(c).

(30) Id. [section] 2031(d).

(31) Id. [section] 9448(a)(1).

(32) 36 U.S.C [section] 40302 (2012).

(33) CAP FINANCIAL REPORT 2014, at 48, http://www.capmembers.com/media/cms/ CAP_financial_report_2014_web_small_DAF2B2CE7FA34.pdf (reflecting $37 million in expenditures for program services, and $36 million in income from government appropriations, grants, and contributions).

(34) 10 U.S.C. [section] 9442(a) ("The Civil Air Patrol is a volunteer civilian auxiliary of the Air Force when the services of the Civil Air Patrol are used by any department or agency in any branch of the Federal Government.").

(35) LeMay Center for Doctrine, "Leadership," https://doctrine.af.mil/download.jsp?filename=V2-D04-Total-Force.pdf. ("[T]he total force includes the Civil Air Patrol, as the official Air Force Auxiliary.").

(36) CAP FINANCIAL REPORT, supra note 2, at 11.

(37) U.S. DEP'T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL, (31 July 2014) [hereinafter AFI 10-20701] at [paragraph] 1.3 ("Although CAP is not a military service, it uses an Air Force-style grade structure and its members may wear Air Force-style uniforms when authorized....").

(38) 10 U.S.C. [section] 9447.

(39) Id. [section] 9448(b).

(40) Id. [section] 101(a)(4) ("The term 'armed forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard.").

(41) AFI 10-2701, supra note 37, [paragraph] 1.3 ("CAP is not a military service, [and] its members are not subject to the Uniform Code of Military Justice...."). Of course, a cadet may have military status by virtue of independent enlistment in some branch of the armed forces.

(42) For example, the legislative history of the statute making the Civil Air Patrol permanent after World War II explains:
   One of the main missions of Civil Air Patrol is to interest the
   youth of the country in aviation.... The Department of the Air
   Force consider this training program of great potential importance
   to civil and military aviation. Civil Air Patrol has been of great
   assistance to the Air Force in their recruiting program.


1948 U.S.C.C.A.N. 1606, 1607-08 (quoting S. REP. No. 80-1374 (1948)). Air Force Chief of Staff Norton Schwartz testified before Congress in 2009:
   There are a number of programs that help I think to grow good
   citizens. I think that's fundamentally what they're about, and they
   have the side benefit of perhaps increasing the propensity of the
   young to serve in the armed forces or elsewhere in public service.
   Civil Air Patrol is one, Junior ROTC at the high schools is
   another, both of which are excellent programs I think that focus on
   citizenship but increase the propensity to serve.


Hearing, House Committee on Appropriations, Subcommittee on Defense (June 3, 2009) (2009 WL 1566892). Reports on appropriations bills make no bones about the connection between JROTC and recruiting:
   The committee finds that the Junior Reserve Officer Training Corps
   (JROTC) program in high schools has a significant and important
   benefit to the readiness and recruitment efforts of the United
   States Armed Forces. The committee encourages the military services
   to maximize the number of JROTC opportunities available in high
   schools; or, if a JROTC program is not feasible, the opportunity
   for a National Defense Cadet Corps program.


H.R. Rep. No. 114-102, at 136 (2015) (On National Defense Authorization Act for Fiscal Year 2016, H.R. 114-1735). Additionally notable:
   The committee strongly supports the Junior Reserve Officer Training
   Corps (JROTC) program. The committee recognizes that there is a
   direct relationship between the JROTC program and recruitment.
   Strong testimony from the Joint Chiefs of Staff this year confirmed
   this relationship. More than half of the young men and women who
   voluntarily participate in this high school program affiliate with
   the military in some fashion after graduation.


S. REP. No. 106-50, at 312-13 (1999) (On National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65).

(43) 32 C.F.R. [section] 542.4 (2016) ("The Army JROTC/NDCC objectives are to develop in each cadet--(a) Good citizenship and patriotism, (b) Self-reliance, leadership, and responsiveness to constituted authority, (c) The ability to communicate well both orally and in writing, (d) An appreciation of the importance of physical fitness, (e) A respect for the role of the US Army in support of national objectives, (f) A knowledge of basic military skills.").

(44) U.S. Dep't of State, Bureau of Democracy, H.R and Lab., List of issues concerning additional and updated information related to the consideration of the Second Periodic Report of the United States (CRC/C/OPAC/USA/2) Written replies of the United States of America, [paragraph][paragraph] 14, 18 (2012), http://www.state.gov/j/drl/rls/201652.htm (noting that JROTC and CAP have optional marksmanship programs); U.S. AIR FORCE AUXILIARY CIVIL AIR PATROL, CAP REG. 52-16 (E) (1 Nov. 2015) [hereinafter CAP Reg.] [paragraph] 2-9(b) ("Cadets may participate in firearm training if the wing commander approves the training facility and sponsoring personnel or agency in advance and in writing. Training must be sponsored and supervised by military personnel qualified as range safety officers; local law enforcement officers qualified as firearms instructors; or National Rifle Association, National Skeet Shooting Association or Amateur Trap Shooting Association firearms instructor"); NC High School Builds Indoor Shooting Range for JROTC Program, FOX NEWS INSIDER (April 24, 2016), http://insider.foxnews.com/2016/04/24/northcarolina-high-school-builds-indoor -shooting-range-jrotc; 2017 JROTC Air Rifle Service Championship, CIVILIAN MARKSMANSHIP PROGRAM, HTTP://THECMP.ORG/AIR/JROTC-AIR-RJFLENATIONAL-CHAMPIONSHIP/ (describing national multi-service JROTC championship).

(45) See infra note 51 and accompanying text.

(46) Nancy Morisseau, Note: Seen but Not Heard: Child Soldiers Suing Gun Manufacturers Under the Alien Tort Claims Act, 89 CORNELL L. REV. 1263, 1283 (2004) ("The United States was the strongest opponent of raising the minimum age for child participation in armed conflict to eighteen. Although comprising less than one-half of one percent of their armed forces, the United States's practice of recruiting seventeen-year olds, and the sheer number of Junior ROTC programs operating in high schools throughout the country, would directly violate such an age restriction."); see also Shannon McManimon, Protecting Children From War: What the New International Agreement Really Means, Y&M ONLINE MEDIA, AMERICAN FRIENDS SERVICE COMMITTEE NATIONAL YOUTH & MILITARISM PROGRAM (Mar. 2000), http://cyberspacei.com/jesusi/focus/co/cows/afsc/youthmill/ html/news/marOO/childsold_prt.htm, ("Government spending on pre- and para-military programs for youth has expanded dramatically in the last decade. There is a growing debate in Washington legislative circles about whether pre-enlistment military-run youth programs are more effective recruitment tools (in terms of both cost and productivity) than traditional recruiting programs. Programs such as the Civil Air Patrol, Project Focus, the Young Marines, and JROTC have as their primary targets young people under the age of 18, sometimes as young as elementary school.").

(47) Written replies of the United States of America, supra note 44.

(48) Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S.135 at art. 13(1-2). (Beneficiaries of Convention, include "[m]embers of the armed forces of a party to the conflict as well as members of militias or volunteer corps forming part of such armed forces, [and] [m]embers of other militias and members of other volunteer corps," so long as they are commanded, uniformed, carry arms openly, and comply with the laws of war.").

(49) This functional interpretation is consistent with domestic law. See, e.g., Child Soldiers Accountability Act of 2008, 18 U.S.C. 2442(d)(2) (2012) provides: "The term 'armed force or group' means any army, militia, or other military organization, whether or not it is state-sponsored, excluding any group assembled solely for non-violent political association."

(50) That being said, the Optional Protocol provides that those under 18 should not "take a direct part" in hostilities. OP, supra note 4, at art. 1. One hopes that working in a combat zone, even in a non-combat role, would constitute "taking a direct part" because of the potential effect on the child's mental and physical well-being. But the term has some ambiguity. See Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon?, 51 A.F. L. REV. 111,119 n.55 (2001). The Child Soldiers Accountability Act provides that "[t]he term 'participate actively in hostilities' means taking part in--(A) combat or military activities related to combat, including sabotage and serving as a decoy, a courier, or at a military checkpoint; or (B) direct support functions related to combat, including transporting supplies or providing other services." 18 U.S.C. [section] 2442(d) (1).

(51) This partially explains the Optional Protocol's concern that voluntary recruits "are fully informed of the duties involved in such military service." OP, supra note 4, at art. 3 [paragraph]3(C).

(52) U.S. DEP'T OF AIR FORCE, INSTR. 36-2002, Regular Air Force and Special Category Accessions (1 Oct. 2012) [hereinafter AFI 36-2002] at 52 (Attach. 4)[paragraph] A4.1.5.5 (CAP); Id. at [paragraph] A4.1.5.4 (2 years of college or high school ROTC allows enlistment at E-2); Id. at [paragraph] A4.1.5.7 (3 years of JROTC allows enlistment at E-3); U.S. Dep't of Army, Reg. 601210, Personnel Procurement: Active and Reserve Components Enlistment Program (12 March 2013),) [hereinafter AR 601-210] at [paragraph] 2-18 (3)-(4) (ROTC and JROTC may enlist at PV2); Id. at [paragraph] 2-18 (10) (CAP cadets may enlist at PV2); U.S. DEP'T OF HOMELAND SEC., COAST GUARD RECRUITING MANUAL, COMDTINST Ml 100.2F (Mar. 2016) at 3-3 (Table 3-1).

(53) At least one member of the group that drafted the Optional Protocol suggested that military schools where the pupils were not military members simply did not implicate the concern about child soldiers: if "schools [were] merely educational and did not imply recruitment into the armed forces, there was no need to have any reference to them in the protocol and even less in the article on voluntary recruitment." U.N., EDUC., SCI. & CUL. ORG. (UNESCO), RIGHTS OF THE CHILD: REPORT OF THE WORKING GROUP ON A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD IN INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS ON ITS SIXTH SESSION 16, [paragraph] 65 E/CN.4/2000/74 (Mar 27, 2000).

(54) AFI 36-2002, supra note 52, at [paragraph] A4.1.5.3.3 (enlistment at E-2 for 30 quarter hours of credit; E-3 for 67 quarter hours of credit); AR 610-210, supra note 52, [paragraph] 2-18a (6-7).

(55) AFI 36-2002, supra note 52, at [paragraph] A4.1.5.6 (Eagle Scout or Gold Palm Award recipient may enlist at E-2.); AR 610-210, supra note 52, [paragraph] 2-18a (12-13).

(56) Mae C. Quinn, WAR ON ... THE FALLOUT OF DECLARING WAR ON SOCIAL ISSUES: Symposium Article: The Fallout from Our Blackboard Battlegrounds: A Call for Withdrawal and a New Way Forward, 15 J. GENDER RACE & JUST. 541, 572 (2012). See also Lila A. Hollman, Note, Children's Rights and Military Recruitment on High School Campuses, 13 U.C. DAVIS J. INT'L L. & POL'Y 217, 220 (2007) ("[C]urrent U.S. military recruitment of high school students violates the Optional Protocol.").

(57) Phillip Ruben Nava, Equal Access Struggle: Counter-Military Recruitment on High School Campuses, 44 J. MARSHALL L. REV. 459, 466 (2011).

(58) Soldiers of Misfortune: Abusive US Military Recruitment and Failure to Protect Child Soldiers, AMERICAN CIVIL LIBERTIES UNION (ACLU) (2008) 13 ("With the stated goals of enhancing children's perceptions of a career in the military and enhancing military recruiting efforts, JROTC undeniably is a recruiting tool."); id. at 2 ("Public schools serve as a prime recruiting grounds for the military, and the U.S. military's generally accepted procedures for recruitment of high school students plainly violate the Optional Protocol.").

(59) See supra note 41 and accompanying text.

(60) UNICEF, THE PARIS PRINCIPLES: THE PRINCIPLES AND GUIDELINES ON CHILDREN ASSOCIATED WITH ARMED FORCES OR ARMED GROUPS (Feb. 2007), [paragraph] 2.4 at 7.

(61) U.N. ORG. FOR EDUC., SCI. AND CUL. (UNESCO), RIGHTS OF THE CHILD: REPORT OF THE WORKING GROUP ON A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD IN INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS 6,[paragraph] 28 (Feb 10, 1996) E/ CN.4/1995/96

(62) Id. at 15 [paragraph] 95.

(63) UNESCO, RIGHTS OF THE CHILD: REPORT OF THE WORKING GROUP ON A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD IN INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS ON ITS SECOND SESSION 8 [paragraph] 41 (MAR 21, 1996) E/CN.4/1996/102; UNESCO, RIGHTS OF THE CHILD: REPORT OF THE WORKING GROUP ON A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD IN INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS ON ITS THIRD SESSION 7, [paragraph] 30 (Mar 13, 1997) E/CN.4/1997/96 ("voluntary recruitment" equated to "volunteering to join the armed forces"); Id. at [paragraph]31 (noting position that "voluntary recruitment" was "a valuable source of employment, training and continuing education"); id. at [paragraph] 33 (noting differing views on "whether persons who had not attained the age of 18 should be allowed to enlist with or without the authority of their parents or guardians."); UNESCO, RIGHTS OF THE CHILD: REPORT OF THE WORKING GROUP ON A DRAFT OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD IN INVOLVEMENT OF CHILDREN IN ARMED CONFLICTS ON ITS SIXTH SESSION 22, [paragraph] 107 (Mar 27, 2000) E/CN.4/2000/74 (noting comment of International Committee for the Red Cross "that it might be difficult in the field to determine whether child soldiers had been voluntarily recruited or not"); Id. at 22-23, [paragraph] 111 (The Coalition to Stop the Use of Child Soldiers "regretted that it was not possible to reach agreement on a minimum age for volunteer recruits into government armed forces. The only way to ensure that persons under 18 years did not participate in war was not to recruit them in the first place.").

(64) OP, supra note 4, preamble.

(65) OP, supra note 4, art. 3, [paragraph] 2. See also CROC, supra note 3, Art. 38, [paragraph] 3 ("States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces."); Int'l Comm. Red Cross, Customary International Law, supra note 12, Rule 136 ("Children must not be recruited into armed forces or armed groups.").

(66) Indeed, the fact that states are obligated to ensure that those under age 18 "are fully informed of the duties involved in military service" (OP, supra note 4, Art. 3(3)(c)) prior to voluntary recruitment suggests that there is a distinction between provision of information and recruitment, and that, whatever the minimum age is for military service, those below that age may nevertheless be informed about it.

(67) OP, supra note 4, art. 6,[paragraph] 3.

(68) This usage is consistent with that of the Child Soldiers Accountability Act of 2008, 18 U.S.C. [section] 2442(a) (2012), which punishes anyone who "recruits, enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group." Senator Dick Durbin, discussing the bill on the Senate floor, stated: "In June 2007, the Special Court for Sierra Leone became the first international court to issue convictions for child soldier recruitment, finding three defendants guilty of crimes that included conscripting or enlisting children under the age of 15." 153 CONG. REC. SI5942 (2007). There, recruitment was synonymous with enlistment or conscription; it meant entry into service, not political education. See also 154 Cong. Rec. H7820 (2008) (remarks of Rep. Jackson-Lee, explaining that bill would "prohibit the recruitment ... of child soldiers").

(69) CROC, supra note 3, art. 29(1)(c). See also Id. art. 29(2) (recognizing that education "shall conform to such minimum standards as may be laid down by the State").

(70) Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982) (citation omitted). For a critique of patriotic education in public schools, see Brent T. White, Ritual, Emotion, and Political Belief: The Search for the Constitutional Limit to Patriotic Education in Public Schools, 43 GA. L. REV. 447 (2009).

(71) Ambach v. Norwick, 441 U.S. 68, 79 (1979).

(72) Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

(73) Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 67 (2006) ("Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces...."). See also, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2548 (2012) (plurality opinion).

(74) Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 620 (1985) (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 551 (1983) ("[Rewarding Veterans ... for their military service ... is, of course, plainly legitimate; only recently we observed that '[our] country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages.'"). See also, e.g., Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 265 (1979) ("The veterans' hiring preference ... has traditionally been justified as a measure designed to reward veterans for the sacrifice of military service, to ease the transition from military to civilian life, to encourage patriotic service, and to attract loyal and well-disciplined people to civil service occupations."); Soto-Lopez v. New York City Civil Serv. Comm'n, 755 F.2d 266, 277 (2d Cir. 1985) ("encouraging service in the armed forces is likewise a legitimate state interest"), aff'd sub nom. Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986); Klepper v. Ohio Bd. of Regents, 570 N.E.2d 1124, 1127 (Ohio 1991) ("In our judgment, Ohio has a legitimate interest, as does any state, in helping to promote the objectives of the federal government in providing for a common defense.").

(75) Of course, the United States has a proud tradition of free speech, and no one is obligated to acquiesce to the government's position. Indeed, there is an honorable tradition of anti-militarism in this country, often advanced by veterans. See, e.g., MAJOR GENERAL SMEDLEY D. BUTLER, USMC, WAR IS A RACKET (1935).

COLONEL DAVID J. WESTERN * AND PROFESSOR GABRIEL J. CHIN **

* Colonel David J. Western, United States Air Force; Staff Judge Advocate, 601h Air Mobility Wing, Travis Air Force Base. Thanks to William Dodge and Gary Solis for helpful comments. The opinions and conclusions expressed in this article are solely those of the authors and do not necessarily reflect the opinion of the U.S. Air Force, the Civil Air Patrol, The Judge Advocate General, The Judge Advocate General's Corps, or any other department or agency of the U.S. Government.

** Professor Gabriel J. Chin, Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor of Law, UC Davis School of Law.
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Title Annotation:Junior Reserve Officers Training Corps, Convention on the Rights of the Child
Author:Western, David J.; Chin, Gabriel J.
Publication:Air Force Law Review
Date:Aug 23, 2017
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