allowances for the special status of child soldiers or that they focus on the

Allowances for the special status of child soldiers

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allowances for the special status of child soldiers, or that they focus on the goals of rehabilitation and reintegration. Further, under the MCA, it appears that military commissions can only impose sentences of death or confinement in a “penal or correctional institution.” 10 U.S.C. § 949u. Such commissions thus lack the power to order the only kinds of sentences that, under the Child Soldier Protocol, would be appropriate for juveniles. Given the readily available models of the SCSL Statute and the JDA, Congress clearly knew how to create judicial or military commission proceedings appropriate to juveniles. The fact that the MCA does not, on its face, even mention 18 See also Rosa Ehrenreich, Save Sierra Leone , Wash. Post, Mar. 4, 2001, at B7 (“This body was created by the United Nations at the urging of the United States….”). 19 The U.N. Secretary-General’s Report on the SCSL Statute notes that the prosecution of children for war crimes presented a “difficult moral dilemma” and that the issue provoked lengthy discussion. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915 ¶¶ 32, 34 (Oct. 4, 2000). The Secretary-General recommended that the Security Council consider prosecution as an option only with the kinds of special provisions set forth in Article 7 of the SCSL Statute. See id . ¶¶ 36-38. 33
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juveniles, and that its procedures and provisions are not equipped to handle the trial of juveniles defendants consistent with the Protocol, demonstrates that Congress did not intend MCA military commissions to exercise jurisdiction over juveniles. And even if there were any doubt about Congress’ intentions, it is well settled that courts should endeavor to construe a treaty and a statute on the same subject so as to give effect to both. See, e.g ., Whitney v. Robertson , 124 U.S. 190, 194 (1888); see also Murray v. Schooner Charming Betsy , 6 U.S. (2 Cranch) 64, 118 (1804) ( “[A]n act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains . . . .”). There is no indication whatsoever that Congress intended to ignore or flaunt the United States’s obligations under the Child Soldier Protocol when it passed the MCA. And the President, for his part, signed the MCA with the specific understanding that the Act “[c]omplie[d] with both the spirit and the letter of our international obligations.” White House Fact Sheet: The Military Commissions Act of 2006 (Oct. 17, 2006). There is thus no basis for concluding that the MCA intended to abrogate or modify United States obligations under the Child Soldier Protocol by conferring MCA military commission jurisdiction over juveniles. See, e.g ., Cook v. United States , 288 U.S. 102, 120 (1933) (“[a] treaty will not be deemed to have been abrogated or modified by a later statute, unless such purpose on the part of Congress has been clearly expressed”); see also United States v. Payne , 264 U.S. 446, 448 (1924) (noting that a statute “should be harmonized with the letter and spirit of the treaty so far as that reasonably can be done, since an intention to
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  • Summer '16
  • Ramon Wawire
  • Supreme Court of the United States, Habeas corpus, Hamdan v. Rumsfeld, Boumediene v. Bush, military commission

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