Child euthanasia, child soldiers, and child capital punishment

February 14

My post yesterday linking the underlying logic of the new Belgian child euthanasia law with the Supreme Court’s prohibition of the juvenile death penalty has generated some strong responses. I will address some of those criticisms here, and then point out further tensions in the Low Countries’ regulation of life-and-death decisions for children.

Some have questioned the connection between the juvenile death penalty and child euthanasia. The arguments against the former, especially in Roper v. Simmons, depend on finding minors categorically lacking capacity, because of immaturity, or at least not having the capacity to make decisions that would result the loss of their own life: they do not understand the consequences. On the other hand, allowing child euthanasia requires believing that children can understand the consequences. If Belgium is right, Roper‘s position becomes harder to sustain.

At Opinio Juris, Kevin Jon Heller says I erred in stating the European opposition to the juvenile death penalty – which played a major role in having it found unconstitutional in the U.S. involves any judgement about juvenile capacity. He says only if there were a European country that allows the death penalty, but exempts juveniles, could I argue that the EU view concurs with Justice Kennedy’s. Of course, in their national laws European states do not distinguish between juvenile and any other death penalty.

However, in other contexts the EU does make the distinction. The EU’s position is that the death penalty is wrong under any circumstances; however, the juvenile death penalty is even wronger. And this distinction could presumably only be due to the reduced decision-making capacity of juveniles.

Thus in their amicus brief in Roper, the EU did not argue that the death penalty was unconstitutional – though they stated their opposition – rather, they argued the juvenile death penalty was unconstitutional even if the death penalty itself were constitutional. (As amici, they were in no way limited to the facts of the case, and could have submitted a much broader argument.) The EU’s opposition to the juvenile death penalty repeatedly points to an “international consensus” against it, reflected in various treaties and U.N. documents. These instruments specifically do not bar the death penalty, but do prohibit the juvenile death penalty. Thus the consensus which the EU pointed to is itself based on a belief in a fundamental distinction between juvenile and adult death penalties.

To be sure, if the EU thinks the juvenile DP to be even worse, it will not be reflected in its internal policies – but it would be reflected in its external ones. An indeed, in dealing with third countries, the EU makes a fundamental distinction between the juvenile and adult death penalty. As spelled out in the EU Guidelines on the Death Penalty, Europe will provide aid and have good relations with countries that practice the death penalty, Europe’s position is that where the death penalty exists, it should always be subject to certain “minimum standards”:

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met: … iii) capital punishment may not be imposed on … Persons below 18 years of age at the time
of the commission of their crime;

Of course, I understand that the Belgian law is intended to only allow euthanasia in horrifying cases involving great suffering. But the juvenile death penalty was also confined to such cases (and did not involve the killing of actual juveniles).

Let me add another point of Belgian inconsistency. Allowing minors to take their lives, or have them been taken, necessarily makes assumptions about their capacity that is at odds with many liberal features of international law. International treaties, including the Rome Statute of the ICC, make the recruitment of child soldiers a crime, and European countries have been active in promoting the expansion of these norms.

Being a child soldier (under 15) is not a crime, only enlisting them. Crucially, the consent of the child, her parents or any psychologists is not a defense. Indeed, consent is presumed, as the crime covers accepting voluntary enlistees. As the Special Court for Sierra Leone put it:

The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group. However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.

But is this still a far cry from euthanasia? Not if the underlying issue is one of capacity to make life-imperiling decisions. And it is important to point out 15 year old may join armed conflict in when the defeat of their side would lead to the massacre or oppression of them and their families and the destruction of their way of life. Yet international law still prohibits their recruitment. This does not mean it can never be rational for a child to join armed forces, but rather that we make a categorical judgement that even if it is sometimes rational, they lack the judgement to make decisions that imperil their lives.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.
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