This article originally appeared in The Generation Spring 2020 print edition. The theme for this edition is “Youth Voices.” A link to our online version of the print publication can be found here: https://www.flipsnack.com/thegen/the-generation-spring-2020.html
As the majority of Yemen’s population lies on the cusp of starvation and famine, urgent action in the field of international law is critical to set deterrents for future state actors and remedy the already inflicted harms from the current state actors involved in the civil war. My research will attempt to answer the following two questions: What is the status of current trends in international law regarding the use of child soldiers? Can international law offer pragmatic solutions to decrease the likelihood of conflict in Yemen, especially concerning child soldiers?
Part I of this essay will examine current recruitment strategies regarding child soldiers from both the Saudi-led coalition and the Houthi rebels. It will also analyze the role of the United States in the conflict, and offer some analysis on potential policy recommendations. Part II will explore the status of international law regarding the use of child soldiers. First, my discussion will engage international law from the perspective of Islamic jurisprudence. Then, I will examine Western approaches and norms. Lastly, Part III will delve into potential solutions for domestic reform in Yemen as based on the model of the new Iraqi constitution.
Part I: The Status Quo
Saudi Arabia’s child soldier recruitment strategy in Yemen is an extensive operation. The Kingdom began recruiting children from war-torn Darfur around 2016, telling children that Saudi Arabia would pay “as much as $10,000 if [they] joined its forces.”[i] The statistics are appalling. Some fighters have testified that as much as “40 percent” of their unit has been made up of children. For the residents of financially ravaged Darfur, the offer of ten thousand dollars from Saudi royals could be life changing for residents of financially ravaged residents of Darfur. When one considers the fact that “a Sudanese doctor working overtime at multiple jobs might earn the equivalent of $500 a month,”[ii] ten thousand dollars may be the difference between life and death. Saudi Arabia, along with Jordan, Kuwait, Morocco, Bahrain, Egypt, the UAE, Qatar, and Sudan, has launched operations against the Zaydi Shi’i group known as the Houthis. Ansar Allah, another name the Houthis adopted, gained control of the capital of Yemen, Sana’a, in 2014. This was a devastating blow for former President Hadi.[iii] The Islamic State of Iraq and the Levant and Al-Qaeda have also been critical actors in the Yemeni Civil War, routinely carrying out attacks against the Zaydi Shias on the basis of sectarian differences. ISIS and Al-Qaeda’s are primarily Sunni, abiding by a Salafist ideology, while Zaydi Shi’ism stands in direct opposition to Salafism theologically. The Kingdom of Saudi Arabia has attempted to securitize Zaydis as inherently violent, looking at every way to “reestablish a Zaydi Imamate,”[iv] which they believe is crucial to the soundness of political order, though much of this discourse are acts of hyper-securitization and fear-mongering.
However, child soldier recruitment is not a one-sided effort from Saudi Arabia. Though scholars may be quick to blame the Saudi-led coalition for violating international law as a state actor, they quickly forget that the Houthis are still equally guilty under international human rights conventions. The Houthis have “inducted 18,000 child soldiers […] since […] 2014.”[v] The strategy differs with every child, for some, it is promises of “money or the chance to carry a weapon […] But others described being […] abducted from schools or homes or coerced into joining in exchange for a family member’s release from detention.”[vi] The ability to protect one’s family or earn money are enticing opportunities for anyone living in a country with one of the worst humanitarian crises. The Zaydi Houthis have declined these allegations; however, on-the-ground journalism tells a different story.
Before diving into the legal issues at hand, it is critical to understand status quo levels of involvement from different state (and non-state) actors. The United States has an extremely important role in the Yemeni Civil War. Currently, US arm sales to Saudi Arabia total billions of dollars, as the “State Department has approved at least $30.1 billion in Saudi military contracts.”[vii] Saudi Arabia has extensively used these weapons in their coalition against the Houthis. In terms of sheer statistics, US weapons from companies like General Dynamics or Lockheed Martin have directly killed “at least 434 people and injure[d] at least 1,004 in attacks.”[viii] The US can implement a number of policy measures to prevent further carnage and help end the use of child soldiers in the conflict. First, the United States “should end its provision of military aid to Saudi Arabia,”[ix] guaranteeing that the Saudis receive a signal of noncompliance with their behavior in the region. This will signal that the United States no longer exclusively backs Saudi interests in Yemen and will significantly lessen the number of casualties from the conflict. The US may benefit from using a quid pro quo approach, conditioning arm sales and military aid on the end of the use of child soldiers. This can be legally justified under the Child Soldier Prevention Act.[x] Empirically, the conditioning of military aid on the cessation of the use of child soldiers has been very effective – the United States has “in at least three cases, […] been instrumental in securing foreign governments’ agreement to enter into a UN action plan to end their use of child soldiers.”[xi]
In addition, it may be necessary to hold elected officials accountable. While the laws may be in place, political elites like Secretary of State Mike Pompeo are able to manipulate moral questions into military ones. Pompeo “blocked the inclusion of Saudi Arabia on a list of countries that recruit child soldiers,”[xii] making it difficult to get the US legally behind any form of arms embargo against the Kingdom. Adding Saudi Arabia to that list may be the first step needed to pursuing conditional military policies with Riyadh. Establishing a quid pro quo relationship with Saudi Arabia bodes well as an effective mechanism in securing the rights of children and ending the use of child soldiers in the Middle East writ large.
Part II: Discussion on International Law
When one discusses customary international law, it is crucial to remember that not all states are as keen to adopt Western legal frameworks when dealing with issues like conduct in warfare. Though most Islamic countries do not follow word for word principles established in Sharia’, which may be broadly defined as Islamic jurisprudence, they still abide by large, overarching principles that can be found in the Quran, the Hadith, and through hermeneutic practices, including others like ijma (scholarly consensus) or qiyas (analogical reasoning). In order to make policy recommendations, it may be critical to examine Islamic law and jurisprudence in regards to child soldiers to better access frameworks that individuals in Yemen may be more inclined to adapt. It is imperative to abide by the frameworks of those who are most affected by the conflict.
Islamic fiqh in the context of family relations holds a deep literature base regarding the rights of children. Primarily, scholars contend that Islam necessitates “that children should be given a protective environment, and […] the right to have sufficient parental care, the right to have education, the right to healthcare, and the freedom of expression and thought.”[xiii] In fact, if a child does not have parents, it is encouraged greatly for the children to be “protected through sponsorship provided by people acting in the role of parents.”[xiv] Even when one looks at commentary concerning jihad from the most famous Muslim scholars, child recruitment for offensive jihad is explicitly denied. Ibn Rushd, known more famously as Averroes, stated that “the collective obligation lies with the freemen and adults.”[xv] Hanafi scholar and jurist al-Marghinani made clear that “jihad is not a requirement for the child.”
Islamic traditions would also contend that there are “two qualifications someone is considered to reach a majority age, namely, ‘âqil and bâligh.”[xvi] Reaching aqil and baligh set the benchmark for what being an “adult” constitutes. Aqil refers to being in possession of one’s mental abilities, while the latter means ‘physically grown up, bodily of age.”[xvii] Both of these benchmarks are hard to quantify; in many Islamic countries such as Indonesia, scholars can find indicators of adulthood in marital law, where it’s legislated to allow marriage without consent at the age of 21.[xviii] However, in Yemen, marital law might tell a different story. There is no formal age of consent in Yemen, and many cases have surfaced regarding child marriages as young as 8 years old.[xix] Theory and practice tell vastly different stories, making it very difficult to set a clear definition of what adulthood really is. Further research may be needed to understand the effect of culture as an alternative explanation for child marriages.
Even if we wanted to adopt a more conservative view of Islamic law regarding jihad for children, the story of ibn Umar would set the limit of child participation in war at fifteen years old. During the Battle of Badr, ibn Umar asked to fight alongside the companions of the Prophet Muhammad, who then forbade it. The hadith goes as such: “‘The messenger of God reviewed me the day [of the battle] of Uhud, when I was just a boy of 14 years, and I was not allowed [to fight]. Then he reviewed me the [day of the battle] of the Trench, I was 15 years old and he agreed.”[xx] This is strikingly similar to the age limit set in international law as well; “the age limit is set at fifteen in Article 38”[xxi] in the Convention on the Rights of the Child. Both Western, international law and Islamic law hold the age of fifteen as the proper age of participation in warfare.
Current trends in international law have attempted to raise the minimum age of child soldiers globally. Article 38 did not suffice, so in 1993, committee members attempted to push for the Optional Protocol to the Convention on the Rights of the Child. On “May 25, 2000,”[xxii] the United Nations ended up taking on the new changes, raising the minimum age of child warfare “from fifteen to eighteen years.”[xxiii] There are loopholes to this though – states may still be able to benefit from the voluntary participation of children in the armed forces, “so the notion of a “straight-eighteen rule” has yet to be fully accomplished.”[xxiv] Though Saudi Arabia and Yemen are parties to the Optional Protocol, it is clear that both of these countries do not abide by the rules they have agreed to. The Optional Protocol lacks an enforcement mechanism, effectively negating the power behind international law.
Part III: Potential Solutions
Yemen may be able to model domestic laws in Iraq in regards to children in armed conflict to further ensure the safety of children. The new Iraqi constitution, which was drafted post US invasion in 2003, incorporates both Western legal doctrines and the Sharia’. It holds in Article 29 that “family is the foundation of society… and the state guarantees the protection of […] childhood.”[xxv] Articles 33 and 37 were home runs for legal innovation regarding the use of child soldiers. This article contains provisions and statutes that are critical to “children who have become child soldiers in armed conflict,” prohibiting the use of force on any “person to join any party, society or political entity or force him to continue his membership in it.”[xxvi] It is critical for Yemeni policymakers to examine the new Iraqi constitution as a potential model for future laws regarding conduct of warfare. Though the efficacy of the new Iraqi constitution has not yet been determined, as witnessed with the rise of ISIS and political instability, the constitution still provides a base frame for Yemen to build upon domestically. Due to the impending humanitarian disaster, it is crucial that policymakers not focus on the small details of legal innovations, but rather adopt a framework quickly to resolve status quo harms as fast as possible. An external agency that monitors enforcement may need to be established to ensure productive results. Without external enforcement mechanisms, Yemen may fall into the same paradigms of failure and noncompliance that Iraq has witnessed.
In addition, Yemen is unique from Iraq since Yemen is home to the Zaydi Shia group. Preservation of Zaydi identity, or at least an attempt at negotiation of it, is critical to ensure the freedom of worship and minority rights. In the new Iraqi constitution, it was held that the “holy shrines and religious sites in Iraq are religious and civilizational entities […] the State is committed to assuring and maintaining their sanctity, and to guaranteeing the free practice of rituals in them.”[xxvii] This did not matter whether the minority was a Chaldean Christian or a Yazidi, Iraq attempted to maintain the ability for its citizens to uphold the freedom of religion. However, in Yemen, the idea of freedom of religion is a different story, at least post-Saudi airstrikes. Saudi Arabia has deliberately attacked Zaydi sites, such as Al-Hadi mosque, “the final resting place of Imam al-Hadi ila’l-Haqq Yahya, the first Shiite Zaydi imam of Yemen.”[xxviii] The destruction of Shiite religious and cultural sites is a clear violation of international law, and begs the question: What Islamic principles can be maintained in a future negotiation between the Houthis and Saudis? If both Saudi Arabia and the Houthis have different notions of Islam, then the potential for finding common ground severely diminishes. Adopting Iraq’s notions of religious freedom must be the stepping stone in Houthi-Saudi negotiation.
However, this conflict is much more difficult than it seems. Though sectarian differences regarding Zaydi Shi’ism and Sunni Islam are tantamount concerns, they are not the main drivers of the conflict. For one, Zaydi Shi’ism is actually considered “closer to Sunni Islam rather than to Twelver Shiism, which is the form of Shiism practiced in Iran.”[xxix] Theologically, there are critical differences regarding the status of the fifth Imam Zayd ibn Ali, but overall, Zaydi Shi’ism holds much more tolerant views of the earlier Sunni caliphs, granting them openness “towards other interpretations of Islam.”[xxx] The notion that this conflict is a new Cold War along sectarian lines between Iran and Saudi Arabia must be rejected and analyzed further. Economics, power politics, and the drive for natural resources may very well serve as alternative explanations for the ongoing proxy wars throughout the Middle East.
As examined in this essay, the recruitment of children as soldiers in Yemen goes against Islamic principles contained in the hadith and Western norms of international law broadly. As the Saudi-led coalition gains momentum and continues to pay children in Darfur to participate in war crimes, the world must attempt to restrain Saudi Arabia through means of coercion, whether that be economic sanctions or hardline military force. States must look at empirical examples and attempts at peace negotiations, such as the Stockholm agreement and the Riyadh agreement. Further research needs to examine the factors and conditions that led the Southern separatists to “have pulled out”[xxxi] of the Riyadh agreement near the beginning of this year. However, it is clear that an agreement that precludes any discussion regarding the use of child soldiers is problematic and destined to continue the suffering of many. The United States has a clear position in the conflict as Saudi Arabia’s guarantor of arms sales, and will need to serve a crucial role in diplomatic efforts with Saudi Arabia if it wants to see any resolution of the ongoing tragedies in Yemen.
[i] Kirkpatrick, David. “On the Front Line of the Saudi War in Yemen: Child Soldiers From Darfur.” New York Times, December 2018. Accessed 4 February 2020. https://www.nytimes.com/2018/12/28/world/africa/saudi-sudan-yemen-child-fighters.html.
[ii] Ibid.
[iii] Waseem A. Qureshi, The Crisis in Yemen: Armed Conflict and International Law, 45 N.C. J. INT’L L. & COM. REG. 227 (2020).
[iv] King, James. “Zaydī revival in a hostile republic: Competing identities, loyalties and visions of state in Republican Yemen.” Brill, Arabica 59 (2012) 404-445.
[v] Associated Press. “Children as young as 10 fight, kill and die in Yemen’s war.” NBC News, December 2018, https://www.nbcnews.com/news/world/children-young-10-fight-kill-die-yemen-s-war-n949721.
[vi] Ibid.
[vii] Kane, Alex. “Here’s Exactly Who’s Profiting from the War on Yemen.” In These Times, June 2019 Issue, https://inthesetimes.com/features/us-saudi-arabia-yemen-war-arms-sales.html
[viii] Ibid.
[ix] Lena Mizrahi, “The U.S. Must End Military Aid to Saudi Arabia – Berkeley Political Review”, Berkeley Political Review, https://bpr.berkeley.edu/2019/11/12/the-u-s-must-end-military-aid-to-saudi-arabia/, accessed 11-19-2019.
[x] Becker, Jo. “From Opponent to Ally: The United States and Efforts to End the Use of Child Soldiers, 22 Mich. St. Int’l L. Rev. 595 (2013), Available at: https://digitalcommons.law.msu.edu/ilr/vol22/iss2/5
[xi] Ibid.
[xii] Seligman, Lara. “The Child Soldier Crisis: ‘Kids Are Cheap’,” Foreign Policy, November 2019. https://foreignpolicy.com/2019/11/08/child-soldier-crisis-kids-are-cheap-yemen-isis-my-star-sky/
[xiii] Anna-Liisa Jacobson, “Lambs into Lions: The Utilization of Child Soldiers in the War in Iraq and Why International and Iraqi Laws are Failing to Protect the Innocent,” Richmond Journal of Global Law and Business 8, no. 2 (Winter 2008): 161-194
[xiv] Ibid.
[xv] https://www.oasiscenter.eu/en/sharia-law-does-not-call-child-soldiers
[xvi] https://media.neliti.com/media/publications/157450-EN-the-issue-of-child-soldiers-in-islamic-p.pdf
[xvii] Ibid.
[xviii] Ibid.
[xix] https://www.unicefusa.org/stories/after-years-civil-war-child-marriage-rise-yemen/33762
[xx] https://www.oasiscenter.eu/en/sharia-law-does-not-call-child-soldiers
[xxi] Anna-Liisa Jacobson, “Lambs into Lions: The Utilization of Child Soldiers in the War in Iraq and Why International and Iraqi Laws are Failing to Protect the Innocent,” Richmond Journal of Global Law and Business 8, no. 2 (Winter 2008): 161-194
[xxii] Ibid.
[xxiii] Ibid.
[xxiv] Ibid.
[xxv] Ibid.
[xxvi] Ibid.
[xxvii] Constitute Project, “Iraq’s Constitution of 2005.” https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en
[xxviii] Craig, Iona. “The Agony of Saada”: U.S. and Saudi Bombs Target Yemen’s Ancient Heritage.” The Intercept, https://theintercept.com/2015/11/16/u-s-and-saudi-bombs-target-yemens-ancient-heritage/
[xxix] Perteghella, Annalisa. “Yemen: the Sectarianization of a Political Conflict.” Italian Institute for International Political Studies, March 2018. https://www.ispionline.it/en/pubblicazione/yemen-sectarianization-political-conflict-19933
[xxx] Ibid.
[xxxi] Reuters, “Yemen’s southern separatists pull out of Riyadh agreement committees,” Reuters, January 2020, https://www.reuters.com/article/us-yemen-security/yemens-southern-separatists-pull-out-of-riyadh-agreement-committees-idUSKBN1Z01ZE
