Defence CommitteeWritten evidence from the Peace Pledge Union
Introduction
1. The Peace Pledge Union (PPU) is an independent secular pacifist organisation, founded in 1934.
2. This submission is directed specifically at the 6th and final topic for the inquiry set out in the Committee’s announcement dated 25 April 2013, “Personnel challenges, including recruitment, retention, and training”, and particularly at the recruitment and retention of persons below the age of 18 and therefore below the age of majority. The PPU has taken up this issue over the past fifty years, holding that minors have no place in war, whether as victims, trainees or participants, and therefore no place in the armed forces of the Crown.
Minimum Age for Recruitment
3. When the UN Convention on the Rights of the Child was agreed in 1989 there was one exception to the general rule that protection for minors continued until age 18 was reached. That exception was in Article 38, which uniquely provided that minors could be recruited into armed forces from age 15. The reason for the exception was the insistence of the UK (and a few other states), which still recruited below age 16 when school leaving regulations permitted it in the case of certain individuals. In the early 1990s the three UK armed forces, each separately from the others, raised the minimum recruiting age to 16 for boys. The Select Committee on the Armed Forces Bill 1991 had commented on the disparity with girls, whose minimum recruiting age had previously been lowered from 18 to 17; the opportunity could have been taken to raise the minimum age for boys further, to match that for girls, at 17, but the MoD chose, against the normal expectation that in removing anomalies the best standard is settled upon, to lower the age for girls from 17 to 16. The new across-the-board minimum age of 16 remained, however, no more than a ‘house rule’, without any sanction in domestic or international law.
4. As a result of long campaigning by many groups (including the PPU) in Britain and abroad, an Optional Protocol to the Convention on the Rights of the Child on the Involvement if Children in Armed Conflict was agreed, and came into force in 2002; it was ratified by the UK in 2003. However, again because of intransigence by the UK and a few other states, the minimum recruiting age was set at 16 instead of a near world-wide consensus on age 18 (signatory states recruiting under age 18 have to make a special declaration to that effect). The UK’s formal ratification of the Protocol effectively gave the minimum recruiting of 16 legal status, but it was not brought into British domestic law until the promulgation of the Armed Forces (Enlistment) Regulations 2009 as a statutory instrument. Decades after the establishment of a legal minimum age for the paid part-time delivery of newspapers to households there was now a legal minimum age, 16, for recruitment and training to kill and be killed; in contrast, the minimum age for joining the police or fire service is 18.
5. Whereas several states took the Optional Protocol as a nudge to raise their minimum recruiting age, the UK now has the lowest minimum recruitment age among members of the European Union, members of the Council of Europe and permanent members of the UN Security Council; there are some twenty states elsewhere (out of over 180) which recruit at 16.
6. Even within the concession allowed by Article 38 of the Convention on the Rights to Child to recruit persons under the age of 18, there is an important caveat: “In recruiting among those persons who have attained the age of [16, taking account of effective modification by the Optional Protocol] years, but have not attained the age of 18 years, States Parties shall endeavour to give priority to the oldest” [Article 38 (3)]. UK governments have consistently ignored this provision, leading to adverse criticism by the UN Committee on the Rights of the Child: “The Committee is deeply concerned that about one-third of the annual intake of recruits into the armed forces are below the age of 18 years and that the armed forces target young people ... The Committee recommends the State party ... while it recruits people who have attained the age 16 years but have not attained the age of 18 years, shall endeavour to give priority to those who are oldest, in light of Article 38, para 3, of the Convention and strengthen and increase its efforts to recruit person of 18 years and older [UN CRC, Concluding Observations on the UK’s second periodic report, paras 51, 52, 2002]. A similar criticism and recommendation were made in the Committee’s Concluding Observations on the UK’s initial report under the Optional Protocol, 2008.
7. The policy of focussing on under-18s for recruitment was supported by the Select Committee on the Armed Forces Bill 2001: “We believe it continues to be important to recruit young people straight from school, including at the age of 16. If they are not caught at this point, they are likely to take up other careers and be permanently lost to the armed forces [Select Committee Report, para 63]. A disturbing implication of this argument, especially the use of the word ‘caught’, is that the personal, educational and career development of individual young people is less important than the demand of the armed forces for new recruits––a curious inversion of humanitarian values and human rights.
8. To its credit, the Select Committee on Defence, in its Duty of Care Report, drew attention to the issue: “Concerns have been expressed about the appropriateness of recruiting under-18s into the Armed Forces. We recommend that MoD examine the potential impact of raising the recruitment age for all three Services to 18 [Select Committee on Defence, Third Report, 2005, paras 61, 62]. The government’s response was negative, arguing that, “the Armed Forces must recruit school leavers if they are to be able to compete for the better candidates and meet current recruiting needs. Once people attain the age of 18 years they are more difficult to attract as recruits ... we wish to attract recruits before they have made other lifestyle choices” [Government Response to the Report on Duty of Care, July 2005, para 14]. In other words, catch them young before they know any better.
9. To its credit, also, the Joint Committee of the House of Lords and House of Commons on Human Rights has called on the government to raise the minimum recruitment age to 18 [Children’s Rights, 25th Report, Session 2009–10, pp 47–48]. In the next session, the succeeding Committee reported, “We share the view of our predecessor Committee that the Government should publish an action plan for responding to the recommendations on the Committee on the Rights of the Child on UK compliance with the UN Optional Protocol on the Involvement of Children in Armed Conflict” [Legislative Scrutiny: Armed Forces Bill, 12th Report of Session 2010–12].
10. Despite so many recommendations, the opportunity of the Armed Forces Bill 2011 was nor seized to ameliorate the minimum age. The opportunity of the present inquiry must be taken, so that, at the very latest, by the chosen target date of 2020 all recruitment of under-18s to the UK armed forces has been completely and permanently discontinued and the UK is no longer a pariah state in terms of this element of young persons’ rights.
Minimum Terms of Engagement and Rights of Discharge
11. From the point of view of an under-18 recruit, the Army, by far the largest recruiter, has the harshest terms of enlistment of the three armed forces. All Army recruits are required to enter on a Versatile Engagement, but with a right to give 12 months notice to resign at any time after completing the first three years, making a four-year minimum engagement. However, in the case of recruits enlisting under the age of 18, the period between the date of enlistment and the 18th birthday does not count towards the stipulated four years minimum, so that a recruit entering on or soon after his/her 16th birthday is liable for a minimum six-year term up to the 22nd birthday, as against only four years for an adult entrant. This is described by critics as the ‘six-year trap’. The Royal Navy used to have a similar six-year trap, and the Royal Air Force a five-year trap, but they were both abolished in 2001, so that their minimum terms of engagement for under-18s are the same as those for over-18s.
12. The Select Committee on the Armed Forces Bill 1996 found “the justification for the difference in length of service for under-18s and adults unconvincing”, and recommended the giving of “careful consideration to the desirability of requiring minors to commit themselves to a period of service longer than that of adults” [Select Committee Report, paras, 41,42]. The same Select Committee also reported, “The 1991 Committee expressed dissatisfaction with the conditions of enlistment for under-18-year-olds and recommended that the MoD bring forward proposals for change. No such proposals have materialised.” In its second report to the UN Committee on the Rights of the Child in 1999 the government referred to the 1996 Select Committee’s report: “It again [referring back also to the 1991 Select Committee] recommended that careful consideration be given to requiring minors to commit themselves to a period of service no longer than that of adults. As a result a Working Group was set up to examine how this anomaly might be removed, and to see whether common terms of service might be introduced across the three Services ... Work is now under way to draft terms of service for personnel under 18” [UK Second Report to the UN CRC, 1999, para 10.65]. Whether the Working Group ever reported, and, if so, what, has never been published. What is apparent is that the Royal Navy and the RAF responded positively in 2001, as mentioned in paragraph 11 above, but the Army’s response in 1999 was to increase its former five-year trap to the present six-year trap, and the 2001 Select Committee on the Armed Forces Bill refrained from comment.
13. The UN CRC unsurprisingly commented adversely in 2002: “The Committee is deeply concerned ... that those recruited are required to serve for a minimum period of four years, rising to six years in the case of very young recruits” [Concluding Observations on UK’s second periodic report, para 51]. This was supported by the House of Lords and House Commons Joint Committee on Human Rights: “We do not believe that the Minister has provided a clear explanation of the Government’s justification for maintaining a differential period of commitment for under-18s joining the Armed Forces. We recommend that this [Armed Forces] Bill [2011] be amended to equalise the initial period of service for people joining the Armed Forces” [Legislative Scrutiny, 12th Report, Session 210–12]. The bill was not amended.
14. Following the radically revising Armed Forces Act 2006, and the introduction of the Versatile Engagement, a new set of Army (Terms of Service) Regulations was promulgated in 2007, coming into force on 1 January 2008. Interested observers were surprised to notice that, without any prior hint, the six-year trap had quietly been abolished, by excision of the previous requirement that an under-18’s minimum four years’ service did not formally begin until the 18th birthday, any period from the enlistment date until that birthday being in addition. Nobody among the public, parliament or the press complained, but the sighs of relief, at an arduous campaign at last justly concluded, had barely died away, when the MoD announced that the abolition of the ‘trap’ was an accidental drafting error, and amending Terms of Service were rushed through the secondary legislative process to come into effect on 6 August (Hiroshima Day) 2008, restoring the six-year trap in all its rigour, regardless of recommendation after recommendation by Armed Forces Bills Select Committees, the Defence Select Committee, the Joint Committee on Human Rights and the UN Committee on the Rights of the Child. It was clearly impossible for the restoration to be retrospective, so under-18s enlisted 1 January to 5 August 2008 had a fortuitous advantage over their predecessors and successors.
15. In the meantime the UN CRC had already congratulated the UK on supposedly having accepted its longstanding recommendations to abolish the trap and bring the Army into line with the other armed forces, and recommended retrospective extension to cover recruits already in the Army and still subject to the trap [Concluding Observations, 2008]. The MoD could have made the best of its claimed error and accepted credit for doing the right thing, however inadvertently; the restoration of the trap was strong evidence of the MoD’s determination to ignore human rights opinion, parliamentary committees’ opinion and UN opinion. The need to abolish the trap immediately, in advance of the inevitable raising of the minimum recruitment age, is more urgent than ever.
16. For under-18 recruits to all three armed forces the period from the 29th day after joining to the end of the sixth month after joining is available for what is known as ‘discharge as of right’ (DAOR), meaning that the recruit simply has to give 14 days written notice of a wish to leave, and a discharge is automatically put into effect. However, as cited by the Duty of Care report, the Directorate of Operational Capability found that “staff and instructors applied pressure to recruits to dissuade them from leaving, as this reflected on success rates and wastage targets” [Select Committee on Defence, Third Report, 2005, para 102]. In any case this arbitrary period does not necessarily reflect the reality of the rapidly changing and developing attitudes of 16- or 17-year old.
17. The MoD claimed in its report to the UN CRC 2008 to have supplemented DAOR by extending what is known as the “Unhappy Minors” provision, whereby under-18s who have “registered ... clear unhappiness about their choice of career” and whose period for DAOR has expired can nevertheless request a discharge, and the CRC was given to understand that in response to continual pressure by the various bodies mentioned no “Unhappy Minor” would be retained against his will, and that “young Servicemen or women under the age of 18 years may, if they wish, leave the Armed Forces before committing to adult service, and that any commitment to adult service is both considered and voluntary”.
18. There are serious grounds for scepticism about these claims, apart from anecdotal evidence from human rights groups about young recruits repeatedly being brought back and punished for running away—evidence in itself, one would have thought, of deep unhappiness and disinclination to settle. The main difference between DAOR and the Unhappy Minors provision is that the former is enshrined in the four (including the Royal Marines) separate Terms of Service Regulations, but the latter is a discretionary system not a statutory right. If the intention seriously was to extend the ability to claim discharge at will up to the 18th birthday, then the simplest and most straightforward way of doing this would be to amend the period of DAOR defined in the Terms of Service Regulations, and, ideally, to define DAOR for under-18s as expiring on the 18the birthday or six months after enlisting, whichever is the later. Another ground for scepticism is that in the UK report, DAOR was misdescribed in two respects, indicating that the system is sufficiently complex that the officers and civil servants writing reports for an international authority such as the CRC do not fully understand it, so how can an average partially literate recruit (as noted by the Duty of Care report) be expected to understand it? Moreover, there has never been any separate “commitment to adult service” for an under-18 recruit––it is part of the package on signing up at age 16 or 17, and there is no fresh procedure of signing again at 18 or special opportunity to leave at that age.
Deployment
19. In the First World War the UK announced a policy of not sending soldiers under the age of 19 to fight overseas; a similar policy was exercised in the Second World War. By the time of the Falklands War in 1982 standards had so far fallen that numbers of under-18s were sent out, leading to two being killed and a third on his 18th birthday. Two more were killed in the first Gulf War in 1991. It was commensurate with this practice that the UK accepted Article 38 (2) of the Convention on the Rights of the Child, requiring only that “States Parties shall take all feasible measures to ensure that persons who have not attained the age 15 years do not take a direct part in hostilities”. Further years of campaigning ensured that the 2002 Optional Protocol, even if it failed to establish a universal minimum age of 18 for military recruitment, did set a universal minimum age of 18 for deployment in hostilities. It was frustrating and disappointing, therefore, that on signature and ratification of the Optional Protocol, the UK insisted upon being the only state to deposit a declaration that , although it recognised the Protocol’s commitment not to send under-18s to take a direct part in hostilities, it would not exclude the ultimate possibility of such deployment where “there is a genuine military need” or “it is not practicable to withdraw such persons before deployment”, or to do so would undermine the operational effectiveness of their ship or unit”. In fact, a small number of under-18s have been deployed to war areas since ratification, but it has been claimed that all cases were due to administrative errors, and the under-18s were returned to the UK as soon as the mistakes were discovered.
20. There is no real reason why the UK’s additional declaration should not be immediately rescinded, and if there are administrative difficulties in strict compliance with the Protocol, that is all the greater reason for raising the minimum recruiting age—even a minimum recruiting age of 17 would mean that under-18 recruits would not complete both their (extended) basic training and their secondary training before reaching 18, so that they would not enter the available pool of trained personnel until they were legally old enough by the Protocol standards.
21. A minor related difficulty is the Army policy in creating the category of ‘junior soldiers’, but confining it to recruits up to the age of 17 years six months. If, so long as there are still under-18s in the Army, the category referred to all under-18s, it would be a constant reminder that not simply the existing ‘juniors’ are subject to the provisions of the Optional Protocol .
May 2013