Children and Armed Conflict in Sri Lanka:
Politics, Human Rights & the Law
Kasturi
Ranga Iyengar Family owned
Frontline on LTTE vs UNICEF
B. Muralidhar Reddy,
18 July 2006
[Comment by
tamilnation.org
That the Kasturi
Ranga Iyengar family owned Frontline should have intervened in the Child
Soldiers issue is understandable. Over past three decades and more, the Hindu and Frontline have been nothing but consistent in their support of new Delhi's foreign
policy towards the struggle for Tamil Eelam - a foreign policy directed
to secure New Delhi's strategic interests in the Indian region and
perpetuate a 'united Sri Lanka' within which, in the name of democracy,
an alien Sinhala majority may
continue to rule the people of Tamil Eelam. Rule by a
permanent ethnic majority within the confines of a single state is the
dark side
of democracy.
Jyotindra Nath Dixit
Indian High Commissioner in Sri Lanka 1985 /89, Foreign Secretary in
1991/94 and National Security Adviser to the Prime Minister of India
2004/05,
speaking in Switzerland, February 1998
was nothing if not candid about New Delhi's approach: ".. Inter-state relations are not
governed by the logic of morality. They were and they remain an
amoral phenomenon. ..".]
The Liberation Tigers of Tamil Eelam
(LTTE) is listed as
a terrorist or unlawful organisation in
several countries. Amazingly, this has done little to temper
the penchant of the Tigers for legalese and hair-splitting
on international law. Its latest war of words with the
United Nations Children's Fund (UNICEF) best illustrates the
point.
Comment by
tamilnation.org
Many
years ago, Karen Parker, an illustrious US attorney
remarked
at a Conference in Canberra, Australia -
"One of the first lessons we learn at Law School is the following: If you have the
law on your side, argue the law; if you have the facts on your side, argue the facts; if
you have neither the law nor the facts on your side, pound the table."
With neither the
facts nor the law on its side,
the Kasturi
Ranga Iyengar family owned Frontline has taken to pounding the table. Words such as 'legalese' and 'hair splitting'
befuddle and do not illuminate. Hopefully Mr. Muralidhar
Reddy and the Frontline may be persuaded to agree that
the
weaknesses in the Optional Protocol to the Convention on the Rights of the
Child that were high lighted by the
International Red Cross were neither 'legalese' nor
'hair splitting' -
"...Armed groups, distinct from the armed forces of a
State, should not under any circumstances, recruit
or use in hostilities persons under the age of 18
years." (Article 4, paragraph 1). The ICRC welcomes
the fact that the issue of non-state actors has been
included in the Optional Protocol, but regrets that the provision imposes a moral, as
opposed to a
legal obligation. Although Article 4 also
provides for criminal prosecution under domestic
law, this is likely to be of limited effect, because
those who take up arms against the lawful Government
of a country already expose themselves to the most
severe penalties of domestic law, and because the
capacity of a Government to enforce its laws is
often very limited in situations of
non-international armed conflicts. Third, it is
uncertain whether non-state actors will feel bound
by a norm which is different from that imposed on
States, and thus whether it will be respected.
In the last week of June 2006, UNICEF handed
over to the LTTE a list of 1,387 child soldiers on its
rolls. The LTTE acknowledged receipt of the communication
and did not dispute the overall figure, barring some
`inaccuracies' about children who have crossed the age of 15
or whom it has supposedly released but who continue to
figure on the UNICEF list.
Comment by
tamilnation.org
It would seem that that Frontline is being somewhat economical
with truth. The LTTE Peace Secretariat
had stated on 1 July 2006
-
"..The latest UNICEF list handed to the LTTE in June 2006 has 1387
names. There are several sources of error in the UNICEF list.
Firstly, many youths in the list are well above the age of 18.
Secondly, of these 1387 names, 53 are known to have been
released, although UNICEF has not removed them from their list.
In a previous UNICEF list, the LTTE has noticed several
triplicates and duplicates and pointed it out to UNICEF. Even
the latest UNICEF list has a few duplicate names. LTTE believes
that many names in the UNICEF list are outdated. Many names
could have entered the UNICEF list, for instance, without the
youth ever formally joining the LTTE.
In relation to the last type of error in the UNICEF list, we would
like to draw attention to the small project LTTE carried out in
March 2005 in the Kokkadichcholai area of Batticaloa. Of the 80
odd names from Kokkadichcholai in the UNICEF list, 25 were
located living with their parents. That is a minimum 40% error
rate..."
But according to Mr.
Muralidhar Reddy, the LTTE 'did not dispute the
overall figure'. And the errors were merely 'some
inaccuracies'. Here, it may after all seem appropriate
to turn to
some legalese - res ipsa loquitur - the thing (in this
case, the spin) speaks for itself.
Essentially, it is enraged over the
norms and methodologies UNICEF has adopted and questions the
very basis of the determination.
Comment by
tamilnation.org
A careful
reading of the Statement by the
LTTE Peace Secretariat
and the International
Federation of Tamils letter to UNICEF of 17 July
suggests not rage but a willingness to
engage with the UNICEF to address the international law
issues that have arisen as well as the facts relating to child soldiers. And it may well be that it is this
willingness to engage with the UNICEF (and the UNICEF to
engage with the LTTE) which has enraged
those concerned to further New Delhi's amoral foreign policy
which is content to perpetuate a Sri Lankan
state structure within which the Tamil people, in the name
of democracy, may continue to
be ruled by a permanent
alien Sinhala majority.
The arguments professed by LTTE legal
experts stretch from the sublime to the ridiculous.
Comment by
tamilnation.org
Words such as 'sublime' and 'ridiculous' do not
further our understanding of the child soldier issue. If
a child had responded in the way that Mr.Reddy
has, we may have
said "temper!, temper!". But ofcourse, the Kasturi
Ranga Iyengar family owned Frontline is no child and it really should
eschew such childish responses and learn to address
the real questions of international law in relation to
child soldiers. Unless ofcourse, Frontline
would prefer to ignore the rule of law and resort to
lynch law.
The organisation asserts that since the
LTTE is no longer an "armed group" but a "state in
formation", it is not correct to apply the United Nations
Convention on the Rights of the Child (CRC), the child
rights standard.
Comment by
tamilnation.org
The position in relation to the defacto state
was clearly stated in the
International Federation of Tamils letter to UNICEF of
17 July and this may help Mr. Muralidhar Reddy
to clarify his own mind -
"...The political
reality is that the LTTE administers a de facto
state within the lines of control recognised by the
Ceasefire Agreement – which Agreement itself has
received international recognition and acceptance.
Some persons recruited by the LTTE serve in the
administrative services of this de facto state – and
these include the judiciary and court, school of
law, police stations, police academy, medical and
technical colleges, small industries, a community
bank and children's homes. It appears to us that
such participation is lawful – and given the
conditions prevailing in these areas both humane and
warranted... The LTTE is not simply an armed group
but it also administers a de facto state. We
trust that you will agree that recruitment by the
LTTE does not necessarily mean recruitment as a
‘child soldier’.
The question is not
only whether the Optional Protocol (which does not apply
to a state) applies to a defacto state, but also whether recruitment by the LTTE which
administers a defacto state, necessarily means
recruitment as a child soldier.
The argument goes that the LTTE began its
armed struggle in the early 1970s as a guerrilla force when
it "could have been accurately described" as an armed group,
but in the 1970s neither the Convention nor its Optional
Protocol on the involvement of children in armed conflict
was in place. The Convention was adopted and opened for
signature on November 20, 1989 and came into force on
September 2, 1990. The Optional Protocol was adopted and
opened for signature on May 25, 2000 and came into force on
February 12, 2002.
However, the LTTE maintains that the
Optional Protocol was declared in 2001 and that it did not
compulsorily raise the age of 15 as the minimum recruitment
age for a state's armed forces. "It, however, did declare
the minimum age of recruitment into `armed groups' as 18.
Unfortunately, the entire discourse on child soldiers is
based on these inconsistent Articles in the CRC and its
Optional Protocol. When these are applied to the youths
between the ages of 15-18 who join the LTTE, the
contradictions multiply further," the LTTE claimed.
According to the LTTE, by the time the
Optional Protocol entered into force "in 2001" the LTTE was
a full-fledged, mature non-state actor running a de-facto
government with many non-corrupt, efficient structures with
demonstrated humanitarian concerns.
Comment by
tamilnation.org
Here, the LTTE
Peace Secretariat has erred in stating that the
Optional Protocol
was 'declared in 2001' but this does not affect the
thrust of the argument put forward by the Peace
Secretariat - and indeed may well strengthen
it. Actually, the Optional Protocol though
enacted on 25 May 2000, came into force
on 12 February 2002. The
Ceasefire Agreement between the LTTE and Sri
Lanka, with internationally recognised demarcated
lines of control, was signed 10 days later on 22
February 2002.
"Thus, since 2001, LTTE is no more an
armed group. It is indeed a state in formation. Yet, LTTE
has respected the international call to desist recruiting
underage youths and the result is that underage youths are
regularly released to their families or to ESDC [Education
and Skills Development Centre] when the youth refuses to go
back to his/her family," it said.
The LTTE is piqued by the UNICEF
definition of child soldiers. It maintains that the CRC
specifies 15 as the minimum age for recruitment into a
state's armed forces and calls on the states to "take all
feasible measures to ensure that persons who have not
attained the age of fifteen years do not take a direct part
in hostilities".
It has found several "faults and
inaccuracies" in the list of 1,387 child soldiers supplied
by UNICEF. If the Tigers are to be believed, it has the
names of 54 children already released by the outfit.
Besides, the list contains names of those over the age of 21
(107); over 20 (197); over 19 (247); over 18 (285); over 17
(207); and under the age of 17 (293).
Comment by
tamilnation.org
Having
said previously that the "LTTE
acknowledged receipt of the (UNICEF) communication
and did not dispute the overall figure, barring
some `inaccuracies' " Mr. Muralidhar Reddy now concedes that
the LTTE has "found several 'faults and
inaccuracies' in the list. These contradictions do
not inspire much confidence in the care that
Mr.Reddy has taken in analysing the facts relating
to child soldier issue.
The LTTE wants the United Nations body to
understand the reasons why children in the Northeast embrace
the organisation and to realise the inadequacies of
international and national non-governmental organisations
(NGOs) in coping with the ground realities. "By crying for
help, these children are forcing us to deal with their
situation. UNICEF has been operating in the Northeast for
several decades, and their presence here and their work are
well known to the local population. Therefore, one must
reflect on the reasons why these children are not going to
UNICEF for help and turn instead to the LTTE for refuge,"
the LTTE said.
The Tigers believe that one obvious
explanation for children running to its fold is that UNICEF
does not take on resource-intensive responsibilities such as
caring for children at risk. "LTTE on the other hand has
extensive child welfare programmes in the Northeast
excelling any available in the rest of the island," it said.
The LTTE complained that given that more
than 800 of the youth in the list were now over the age of
18, UNICEF's call for the release of these youths was not
based on any "international human rights standards. It can
only be viewed as a desperate attempt to boost the numbers
in their list with the view to discredit the LTTE".
The LTTE's diatribe against UNICEF raises
several questions, particularly because nowhere is the
outfit denying that it employs children, from the age 15,
for military purposes. Why should an organisation that
boasts of infrastructure for extensive child welfare
programmes employ children for combat?
Comment by
tamilnation.org
A diatribe is a bitter and abusive speech or
writing. The question that will arise in many minds is
whether it is Mr. Muralidhar Reddy's article which
qualifies for that description. We ourselves are unaware
whether or not the LTTE has denied that it employs children,
"from the age 15, for military purposes". But the real
question remains twofold:
1. Does the
Optional Protocol provision that "armed groups, distinct from
the armed forces of a State, should not under any
circumstances, recruit or use in hostilities persons
under the age of 18 years" impose a moral, as opposed to a
legal obligation? Is the standard in
any event a double standard?
2. Given the
political reality that the LTTE administers a de
facto state within the lines of control recognised
by the Ceasefire Agreement (which Agreement itself
has received international recognition and
acceptance), does recruitment by the LTTE
necessarily mean recruitment as a ‘child soldier’?
On the face of it, the attempt by the
Tigers to debate a whole range of issues with UNICEF on the
contentious subject of child soldiers appears to be human at
one level, puerile and academic at another.
Comment by
tamilnation.org
Mr. Muralidhar Reddy admits that the subject
of child soldiers is contentious but he does not explain
the levels at which he sees the debate as 'human' and then also
as
'puerile and academic.' Puerile means belonging to childhood; juvenile,
immature; childish. The question that Mr. Muralidhar Reddy may want to ask himself is whether his
use of epithets such 'legalese', 'hair splitting',
'sublime', 'ridiculous' 'puerile' and so
on reflect a mature and unchildlike approach to the
question of child soldiers and international law.
On the question of being 'academic', it is true that the
rule of law is law - and therefore has a theoretical
foundation. Otherwise, law would become arbitrary
- and it may come to be determined on the say so of
institutions such as the Kasturi
Ranga Iyengar family owned Frontline and Hindu.
However, a closer look would reveal
that there is a method in the madness of the LTTE discourse
on underage combatants. The elaborate explanations are aimed not
so much at UNICEF or the international community but at the
Tamil diaspora. The diaspora provides the much-needed
economic and political oxygen to the LTTE. The Tigers may
have a devil-may-care attitude towards the rest of the world
but are extra careful about the sensitivities of the
diaspora. And thereby hangs a tale of passionate legal gloss
by the LTTE on the issue of child soldiers.
Comment by
tamilnation.org
Mr. Muralidhar Reddy would have his readers
believe that the Tamil diaspora does not have the
collective wisdom of Frontline and therefore
cannot see through the so called 'madness of the LTTE
discourse'. And the ever helpful Kasturi
Ranga Iyengar family owned Frontline has come forward to help the Tamil diaspora,
amongst others, to recognise the so called 'legalistic',
'hair splitting', 'sublime', 'ridiculous' and
'puerile' discourse of the LTTE Peace Secretariat.
Hopefully, Mr.Reddy may in time come to understand
that the Tamil diaspora are not stupid. To repeat it yet
again, the Tamil diaspora know well that the real
question remains twofold:
1. Does the
Optional Protocol provision that "armed groups, distinct from
the armed forces of a State, should not under any
circumstances, recruit or use in hostilities persons
under the age of 18 years" impose a moral, as opposed to a
legal obligation? Is the standard in
any event a double standard?
2. Given the
political reality that the LTTE administers a de
facto state within lines of control recognised
by the Ceasefire Agreement (which Agreement itself
has received international recognition and
acceptance), does recruitment by the LTTE
necessarily mean recruitment as a ‘child soldier’?
And these are the very
two questions which Mr.Reddy has avoided addressing. As
for the matter of the LTTE and political oxygen, the Tamil diaspora
know only too well that it is successive Sinhala
dominated Sri Lanka governments who have provided the
political oxygen for Tamil resistance. The Tamil
diaspora know that during the past fifty years and more, the intent and goal of all Sinhala governments
(without exception) has been to secure the island
as a Sinhala
Buddhist Deepa. They know that rule by a permanent ethnic majority within
the confines of a single state is the
dark side
of democracy. They know that the Sinhala Buddhist nation
masquerading as
a multi
ethnic 'civic' 'Sri Lankan' nation set
about its task of assimilation and 'cleansing' the island of
the Tamils, as a people, by
- depriving a section of
Eelam Tamils of
their citizenship,
- declaring the
Sinhala flag as the national
flag,
- colonising parts of the Tamil
homeland with Sinhala people,
- imposing
Sinhala as the official language,
- discriminating against Tamils students seeking University
admission,
- depriving Tamil language speakers
of employment in the public sector,
-
dishonouring agreements entered into with the Tamil
parliamentary political leadership,
- refusing to recognise
constititutional safeguards against discrimination,
- later
removing these
constitutional safeguards altogether,
- giving to themselves
an authocthonous
Constitution with a
foremost place
for
Buddhism,
- and
changing the name of the island itself to the
Sinhala Buddhist name of Sri Lanka - appropriately enough, on
the 'tenth day of the waxing moon in the month of Vesak in the year
two thousand five hundred and fifteen of the Buddhist Era'.
They know that when these attempts at ethnic cleansing were resisted by the
Tamil people by
non
violent means and
parliamentary struggle,
Sinhala governments resorted to violence in
1956, in
1958,
in 1961 and again in
1977 - a murderous
violence directed to
terrorise the Tamils into submission.
They know that the inevitable rise of
Tamil
armed resistance to
State terror
was then met with enactment of laws which were an
'ugly blot on statute book of any civilised
country', with arbitrary arrest and
detention,
torture,
extra judicial killings and massacres,
indiscriminate aerial bombardment and artillery shelling,
wanton rape,
and
genocide - together with
press censorship, disinformation
and murder of journalists.
They know that
the impunity granted to Sinhala
armed forces,
para
military groups,
goondas and
Sinhala thugs, exposed the encouragement, support and direction
given by successive Sri Lanka governments for the crimes committed
against the Tamil people.
The Tamil dispora know that today, the President Rajapakse government
seeks to pursue the Sinhala assimilative agenda by
reneging on the 2002 Oslo Declaration, by refusing to recognise
the existence of the
Tamil homeland, and by perpetuating a Sri Lankan state
structure within which the Tamil people may continue to
be ruled by a permanent
alien Sinhala majority.
They know that the genocidal intent of the
President Rajapakse government is reflected
in the war crimes
committed by the Sri Lankan armed forces under the President's
command and by the Sri Lanka para military. They know that in the
shadow of a
ceasefire, they have
raped,
murdered
Tamil
Parliamentarians,
Tamil
journalists,
executed
Tamil students with impunity,
arbitrarily arrested and detained Tamil civilians,
abducted
Tamil refugee
workers,
orchestrated
attacks on Tamil civilians and Tamil shops,
bombed Tamil
civilian population centres and
displaced thousands of Tamils from their homes.
They know that the Tamil armed resistance movement
has taken shape in the womb of oppression.
They know that its seeds are to be found in the eternal quest for equality
and freedom.
They know that though born
of natural parents an armed resistance movement is at birth illegitimate - because it breaches the
existing legal frame, and seeks to supplant it. They know that that simple fact has
much to do with its subsequent development and growth.
The Tamil diaspora know that an armed resistance movement acquires
legitimacy and becomes 'lawful'
through its growth and success - not simply because the ends it seeks to
achieve are just. They know that the metamorphosis from 'unlawful' to
'lawful' is gradual (and many layered) and is related to the
justice of the ends it seeks to achieve, to the legality
of the means that the armed resistance employs and to the extent to which
the
movement is able to secure
and maintain permanent control of territory. They know that it is not a case of
one or the other, but a case of all three
The Tamil diaspora know that the demand for an
independent Tamil Eelam is not negotiable but they also know that an
independent Tamil Eelam can and will negotiate a political structure
where both the Sinhala people and the Tamil people may live in
equality and in freedom, yes, freedom. They know that if Germany and France were able to put in place such 'associate' structures despite the
suspicions and confrontations of two world wars, it should not be beyond the capacity of
Tamil Eelam and Sri Lanka to work out structures, within which each independent
state may remain free and prosper, but at the same time pool sovereignty in certain agreed
areas. The Tamil diaspora, living in
many lands and across distant seas know only too well that sovereignty
after all, is not virginity
|
