After the recent terror attacks in Tunis and the continued abduction of Syrian and Iraqi children what does the rise of ISIS have to do with the treatment of children? Answer: An object lesson on children's rights versus a child's best interests as the basis for family restoration.
Upon first hearing about the Minnesota teen girls traveling to Turkey to join ISIS as brides I was stunned – because I could be their mom. In fact, my colleague shared an argument she had with her 15-year-old daughter about whether she was old enough to attend a particular rock concert on her own. As a parent she decided she was not. While the international community and the media think of young teen children as fully realized autonomous actors capable of making their own decisions, this understanding often does not mesh with how we as individuals think about our own children. Those Minnesota girls thought they were becoming part of some great adventure when they were likely headed to a very scary future.
The international community responds to the commodification of children in war under the Convention on the Rights of the Child (CRC), a United Nations Treaty signed by all member nations except the United States. Most of the international commentary on this issue of ISIS and children is very rights oriented, but has turned the concern into one of legalese – that the UN convention, while outlawing child soldiers, has no power over nonstate actors like ISIS recruiting them. And although the CRC also prohibits human trafficking of children for sex or warfare or anything else, it is utterly ineffective against ISIS as a nonstate actor, rendering the UN and any children's rights framework useless in providing security assistance.
ISIS has risen out of the vacuum of power left by the Arab Spring and has discovered how to harness children to promote an environment for terrorism to grow and thrive – and to wreak havoc on the welfare of all children. ISIS has become known for employing Sharia measures such as honor killings, genital cutting, child marriage, stoning and execution by crucifixion," to effect terror and resulting manipulation. Yes, even children have been the victims of these crucifixions. ISIS is known not only for child murder, but for child abduction, and conscripting child solders. Some have become key executioners, indoctrinated with ruthless assassin poise. Kids are particularly capable of being manipulated by others – an ISIS fighter or even their own family members – and the existing international framework does not recognize that fact. Rather, the world watches as children become the hottest commodity in a new caliphate army. According to the Daily Guardian, "a UN report on war crimes in Syria pointed to the indoctrination of children as a 'vehicle for ensuring long-term loyalty' and creating a 'cadre of fighters that will see violence as a way of life'." Some parents have taken to seeing the benefit of such involvement in the caliphate for their children. According to the Guardian, "Isis's bid to build a society hasn't stopped at the recruitment of women. Foreigners have been encouraged to bring their whole families to Iraq and Syria to 'live under the shade of the caliphate….', 'to prepare themselves and their children,' with smiling boys…going to a schoolroom described as 'the ultimate base for raising tomorrow's mujahideen'."
What does this scenario tell us about the way children's rights are used around the world? The recruitment of child soldiers is tragically not a new problem. According to UNICEF estimates, some 300,000 children are involved in 30 conflicts worldwide. "Children are used as combatants, messengers, porters and cooks and for forced sexual services. Some are abducted or forcibly recruited; others are driven to join by poverty, abuse and discrimination…" A child's overall welfare is harmed by involvement in warfare. The CRC does not answer whether a child who commits a war crime on behalf of ISIS, such as executing an Israeli soldier, is then subject to trial as a fully autonomous adult. If under the children's rights framework kids are seen as capable of making their own legal, social, and ethical decisions, they are also considered fully legally morally culpable for making bad decisions. I argue instead that all the kids caught up in what's going on in Syria and Iraq are victims – even the ones joining ISIS.
The United States is different from the international community in that not only has it not ascribed to the children's rights framework of the Convention, but since the inception of the nation, each state has adopted a 'best interests of the child' legal approach to children that places the duty on adults to act in a manner to achieve what is best for any individual child under given circumstances. This is unique in the global community and offers some insight into why ISIS is having so much success in the corruption and commodification of children. While ISIS is not a member state to be governed by an international treaty on children, it still operates in a manner somewhat consistent with a children's rights framework. Picture a triangle, with a child's interests at the top, parental interests on the bottom left of the triangle, and the state's interests at the bottom right of the triangle. This provides an illustration of how children's rights can be contemplated. The child has rights as against the parent and as against the state, and all three actors, parent, state and child, can pursue their rights as against one another, or in concert. Here, ISIS is the state-like entity, entreating the children toward empowerment, albeit manipulatively, even through their parents. But this is a children's rights framework – the very same rights structure adopted by the international community under the CRC. Conversely, a best interest of the child framework is used in every state family court in the United States to uphold adult duties toward otherwise legally incapacitated children, held responsible to protect those children, and to hold the parents to that protection as well. This structure sets up the best interests of the child as the objective to be accomplished by both the parent and the state. This objective is the highest duty of a parent, and when the parent ceases to protect those best interests the state will step in as parens patraie, or "state as parent," to do so. Thus, parental rights granted as fundamental and constitutionally protected by the United States Constitution are balanced by parental duties to protect and provide for the best interests of the child; these fundamental parental rights are not unlimited, but can only be abridged by the state when the parent is no longer fit to act in the best interests of the child. So, for example, the dad dropping off his 50-Shades-daughter to ISIS in the controversial SNL skit would lose his parental rights because the state would intervene to protect and provide for the child. Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence clarifies that children's rights do not protect children at all – as spelled out in Suffer the Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children. It becomes crystal clear that the UN's children's rights framework has deeply harmed children in its impotence in remedying child soldering, female genital mutilation, forced child marriage, child sex trafficking, and child enslavement. A 25 year review of the children's rights convention revealed the newest atrocity toward children to be the practice of child sacrifice in many developing nations.
The two didactic and contrary approaches, children's rights versus children's best interests, are helpful in discerning how ISIS is operating with children, and what that says about families. A rights approach perceives children as rights holders and independent actors; the other perceives children as legally incapacitated deserving of protection and provision from adults. ISIS has somehow harnessed the framework for children's rights to advance the usage of children as a commodity in the global caliphate. It does so by leaving children to protect their own rights – with no one to advance those rights for them but adults upon whom they rely most. A best interests approach accomplishes what a rights approach cannot. Here, ISIS is manipulating children – whether it be the girls from Minnesota, or the child executioner - and sometimes their families, by empowering them as actors in the caliphate. This is rogue empowerment, and would not stand in any of the 50 States in America. And thankfully, because we live in America, my colleague can still legally protect her 15-year-old daughter from a nasty mosh pit at a certain rock concert too. Rights do not protect children or their families. Rather, rights tend to advance the notion of children as another commodity – and ISIS has harnessed that for warfare.
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