Child Soldiers Prevention Act: Security Assistance Restrictions



Updated November 6, 2020
Child Soldiers Prevention Act: Security Assistance Restrictions
The recruitment and use of children in armed conflict is
child soldiers and restricting certain types of U.S. security
broadly viewed as a human rights problem, a form of
assistance to these countries. In particular, the law requires
trafficking in persons, among the worst forms of child
that the Secretary of State publish annually a list of
labor, and a war crime. The United Nations (U.N.) has
countries within which “governmental armed forces, police,
identified the recruitment and use of child soldiers as
or other security forces,” or “government-supported armed
among six “grave violations” affecting children in war and
groups, including paramilitaries, militias, or civil defense
has established numerous monitoring and reporting
forces,” recruited or used child soldiers during the previous
mechanisms and initiatives to combat this practice. The
year. Pursuant to CSPA, the State Department, since 2010,
U.N. affirmatively verified over 7,000 children as having
has published a list of countries within the annual State
been recruited and used as soldiers in 2019 alone; more
Department Trafficking in Persons Report (TIP Report).
than 90% of these cases were attributed to recruitment by
non-State actors.
Types of Security Assistance Prohibited

The following types of security assistance are prohibited for
U.S. efforts to eradicate this phenomenon internationally
countries designated pursuant to the CSPA (subject to
are guided largely by the Child Soldiers Prevention Act of
exceptions and waivers, discussed below):
2008 (CSPA, Title IV of P.L. 110-457), which defines the
 licenses for direct commercial sales (DCS) of military
term “child soldier” under U.S. law and restricts certain
equipment;
security assistance to countries that recruit or use child
 foreign military financing (FMF) for the purchase of
soldiers, among other provisions. The Child Soldier
defense articles and services, as well as design and
Prevention Act of 2018 (Title II, Subtitle B of P.L. 115-
construction services;
425), which became law in January 2019, strengthened
 international military education and training (IMET);
some of the CSPA’s provisions.
 excess defense articles (EDA); and


Defining “Child Soldier”
peacekeeping operations (PKO).
The recruitment or use of persons under age 15 as soldiers
Department of Defense (DOD) “train and equip” authority
is prohibited by both the U.N. Convention on the Rights of
for building the capacity of foreign defense forces, codified
the Child (CRC) and the Additional Protocols to the
at 10 U.S.C. Section 333, may also be subject to prohibition
Geneva Conventions, and is considered a war crime under
for CSPA-listed countries. This authority is restricted where
the Rome Statute of the International Criminal Court. In
such security cooperation is “otherwise prohibited by any
addition, the Optional Protocol to the CRC on the
provision of law.” Presidential waiver determinations and
involvement of children in armed conflict further prohibits
State Department reports have referenced the authority as
persons under age 18 from being compulsorily recruited
being potentially restricted by the CSPA. Other forms of
into state or nonstate armed forces or directly engaging in
U.S. security assistance (not listed above) to CSPA-listed
hostilities (while permitting voluntary recruitment of
countries may continue to be provided under the law,
persons at least 15 years old). The United States is a party
although constraints may be applied as a matter of policy.
to the Optional Protocol.
Exceptions
Congress, through the CSPA, has defined child soldiers in a
The President may provide military education and training
manner consistent with the Optional Protocol. Under the
through certain institutions and/or nonlethal supplies to a
CSPA, the term “child soldier” refers to persons under age
CSPA-designated country upon certifying that the recipient
18 who:
government is taking steps to demobilize, reintegrate, and
 take direct part in hostilities as a member of
rehabilitate child soldiers and that such assistance will
governmental armed forces, police, or other security
support military professionalization. Similarly, the
forces; or
prohibition on PKO assistance does not apply to programs
 are compulsorily recruited into governmental armed
that support military professionalism, security sector
forces, police, or other security forces (or are under 15
reform, respect for human rights, peacekeeping preparation,
years old and are voluntarily recruited), including in
or the demobilization and reintegration of child soldiers.
noncombat roles; or
Presidential Waivers

The President has authority under CSPA to waive all, or
are recruited or used in hostilities by nonstate armed
certain types, of security assistance restrictions to a given
forces, including in noncombat roles.
country if the President determines that doing so serves
CSPA Reporting and Security Assistance U.S. “national interest” and certifies to Congress that the
Restrictions
relevant government is “taking effective and continuing
CSPA aims to combat the recruitment or use of children as
steps to address the problem of child soldiers.” The
soldiers by publicly identifying countries that recruit or use
President may similarly reinstate any assistance that would
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otherwise be prohibited by certifying that the country in
Media reporting has sometimes indicated internal State
question has implemented measures, including “an action
Department disagreement concerning CSPA list
plan and actual steps” to end government or government-
determinations. The State Department’s Office to Monitor
supported recruitment or use of child soldiers and to
and Combat Trafficking in Persons reportedly argued
prevent their future recruitment or use.
internally for Saudi Arabia’s inclusion on the 2019 TIP
Report
list, for example. That year’s report noted reports
Most Recent Designations
that Saudi Arabia had provided salaries, training, and other
The State Department designated 14 countries under CSPA
support to “Sudanese combatants which included children
in the 2020 TIP Report, which was published on June 25,
aged 14-17 years old, who may have been used in direct
2020, and covered the period of April 2019 through March
hostilities in Yemen.” Similarly, observers criticized the
2020. As compared to the prior year’s CSPA list, 11
2017 TIP Report for not listing Afghanistan, Burma, and
countries remained listed, while Cameroon, Libya, and
Iraq, which had been reported elsewhere to have recruited
Nigeria were added. In October 2020, President Trump
and used child soldiers; the decision not to list these
fully or partially waived restrictions on FY2021 assistance
countries reportedly prompted internal protest via the State
for all but five countries (see Table 1). As required by the
Department’s dissent channel.
CSPA, as amended, the President certified to Congress that
each of the countries receiving waivers were taking
Use of Presidential Waivers
“effective and continuing steps” to address the problem of
The executive branch has frequently waived security
child soldiers.
assistance restrictions for CSPA-listed countries, allowing
for the provision of hundreds of millions of dollars in
Table 1. 2020 CSPA and Waivers (FY2021 assistance)
otherwise restricted assistance. According to public
Country
Restriction Status
reporting from the State Department that is now required
Afghanistan
Waiver (ful )
due to a 2019 CSPA amendment, as of April 15, 2020,
Burma
Restricted
waivers for child soldier countries listed in the 2019 TIP
Cameroon
Waiver (ful )
Report had allowed for the obligation of more than $17
Democratic Republic of the Congo
Waiver (partial)
million in otherwise restricted FY2020 IMET, PKO, and
Iran
Restricted
DOD “train and equip” assistance. No relevant FY2020
Iraq
Waiver (ful )
assistance was planned for CSPA-listed countries that had
Libya
Waiver (ful )
not received a waiver.
Mali
Restricted
Nigeria
Waiver (ful )
Waiver Example: FY2020 Assistance
Somalia
Waiver (partial)
to Somalia
South Sudan
Waiver (partial)
Child soldier information (from 2019 TIP
Sudan
Restricted
Report): Reports of Somali National Army and allied
Syria
Restricted
militias (among others) “unlawfully recruiting and using
Yemen
Waiver (partial)
child soldiers” between the ages of 8 and 17.
Source: U.S. State Department; Federal Register, 85 FR 69117.
Executive branch’s waiver justification: U.S.
strategy focuses on “a stable and representative
Issues for Congress
government” in Somalia that is capable of combating
Country Determinations
terrorism and piracy, among other capacities. A
waiver for IMET and PKO assistance supports Somali
Some observers have previously criticized the State
Department’s child soldier country designations for
military professionalization and the building of
“effective and rights-respecting security forces, which
excluding certain countries described as having child
are indispensable to achieving greater military
soldiers in other reports, such as U.N. reports or the
Department of Labor’s reports on
effectiveness.” In addition, a waiver for DoD “train
the worst forms of child
and equip” assistance helps build capacity to conduct
labor. In some cases, these discrepancies may arise from
counterterrorism operations against al-Shabaab.
differences in reporting timelines or from definitional
differences. Notably, the CSPA does not require the
Some analysts and Members of Congress have criticized the
designation of countries in which child soldiers were
frequent use of waivers, arguing that it undermines U.S.
recruited or used by armed groups that are not supported by
efforts to deter countries from using child soldiers.
the government. Prior to its January 2019 amendment, the
Successive Administrations have justified exceptions and
CSPA also did not require the designation of countries in
waivers based on a stated need to support goals such as
which child soldiers were recruited or used by police or
counterterrorism or military professionalization.
other non-military governmental security forces.
Michael A. Weber, Analyst in Foreign Affairs
IF10901


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Child Soldiers Prevention Act: Security Assistance Restrictions


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https://crsreports.congress.gov | IF10901 · VERSION 10 · UPDATED