Sri Lanka removed from UN “child and armed conflict” list – LTTE must stand trial for forced conscription

By Shenali Waduge

Unless it’s a mistake or purposely done the UN removal of Sri Lanka from its List of Shame for child conscription does not clearly distinguish the fact that it was the LTTE that conscripted children to its terror outfit and not Sri Lanka’s army. Therefore, Sri Lankan authorities need to ask UN authorities to make this distinction clearly known. Moreover, it is now long overdue for LTTE to be put on trial for usurping every right of a child by kidnapping and training children to kill.

Legal Jargon

Conscripting and enlisting children under the age of 15 is a war crime prohibited by

· Article 8 (2) (e) non-international armed conflict of the Rome Statue of the International Criminal Court

· Article 77 (2) of the Additional Protocol I to the Geneva Conventions

· Article 38 (2) of the Convention of the Rights of the Child (CRC) as well as the

· Optional Protocol to the CRC prohibits compulsory conscription of children under 18 years as direct participants in hostilities.

– we would like to know why LTTE has not been punished for the crime of conscripting children.

Some of these laws are certainly amusing. While conscripting or enlisting children is illegal, they are still entitled to special protection offered to children under international humanitarian law – so long as they are not placed in combatant roles. Can the luminaries who write these laws please tell us what terrorist organization or rebel movement follows these IHL laws or even care a penny for anyone’s rights?

It was in 2006 that Thomas Lubanga Dyilo was indicted at the International Criminal Court and charged with enlisting children in Congo – the 1^st ever verdict against enlisting and conscripting children. The indictment showed that the ICC could bring the world’s worst offenders and hold them for crimes against humanity and other such war crimes.

The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda did not set a minimum age for criminal responsibility because all those who appeared before the tribunal were above 18 years.

The Special Court for Sierra Leone did provide jurisdiction over 15 years but the prosecutor opted against indicting children for war crimes because of their dual status – as victim and perpetrator.

LTTE’s terror far exceeds that of the Congo rebel leader and it is time remnants of the LTTE stood trial for inflicting terror for 3 decades. With UN and other International Agencies stationed in the defacto region controlled by the LTTE that was out of bounds for the Sri Lankan Government or army, it should have been the representatives of these entities who should have reported the open manner in which LTTE was taking children to be trained as killers. These organizations by the mandate given to protecting the fundamental rights of children have failed in their duties and stand as accountable as the LTTE for their silence.

If the ICC claims that it has stripped away the impunity Congo rebel leader enjoyed and also accused national authorities of not investigating these crimes – we would like to know if the world knew nothing about LTTE atrocities over 3 decades? Why was nothing done against the LTTE when the UN had enough of reports compiled on its conscription of children?

So we repeatedly question the loyalty of these organizations and cannot emphasize enough of the need to investigate the UN, the INGOs/the NGOs and all other charities and humanitarian organizations for their links to the LTTE and their role in indirectly participating in terror.

The Facts

There are over 300,000 child soldiers currently involved in armed conflicts. 6m children have been severely injured or permanently disabled. 20m children are living as refugees in neighboring countries or live as IDPs in their own nations.

There is no yardstick to measure the physical and mental trauma they undergo following their abduction, detention and witnessing violence against their parents as punitive actions.

It was only after Sri Lanka had defeated the LTTE that the UN Security Council adopted Resolution 1882 in August 2009 and Resolution 1998 in July 2011 that built upon the previous Resolution 1612 adopted in June 2005, introducing a Monitoring and Reporting Mechanism for states to track recruitment  and use of children as soldiers.

If ICC claims to regret not being able to deliver justice to other suspects because governments have failed to arrest them citing Bosco Ntaganda (Deputy Leader to Thomas Dyilo), Joseph Kony (Uganda) and Sudan’s President Omar al-Bashir and we would be very keen to know how Prabakaran deferred from these men in terms of atrocities committed and why international representatives did not mind even sharing cups of tea and light hearted moments with Prabakaran in the jungles of Wanni when they were well aware he was kidnapping Tamil children and making them into killers?

Our surprise at inactions are made all the more emphatic because the UN special representative for children and armed conflict Ms. Radhika Coomaraswamy was a Sri Lankan herself, a Tamil and well aware of every detail about the LTTE. Her golden words on prosecuting children for their crimes reads as “If minor children who have committed serious war crimes are not prosecuted, this could be an incentive for their commanders to delegate to them the dirtiest orders, aiming at impunity.” – her solution was to hold the command responsible for the human rights violations.

However, ICC’s Article 33 says that acting on orders from superiors is not a defense of criminal responsibility. This is where the question of the knowledge of anything being lawful and unlawful comes into effect and leads to the moral choice in action. An adult is well aware of what is lawful and unlawful and he certainly has all the mental capacity in place to decide what is moral or not. A child on the other hand by virtue of his age is yet to know what is lawful.

We again ask if ICC has 11 fugitives why was LTTE leaderships never on that list? There are plenty of witnesses who will relate how their lives were turned upside down by the LTTE – children who yearned to study but were handed a gun to carry.

These are questions that the international community refrain from answering but leaves us wondering what chemistry existed for LTTE to prevail and minus prosecution so much to warrant severe reprimands upon the Sri Lankan Governments when it was taking actions to protect its civilians from LTTE terror attacks!

The modus operandi of recruitment by the LTTE has been to use intimidation and threats to pressure Tamil families to provide their children as LTTE rebels. Families that refuse have their children abducted from their homes or from school – parents who resist face retribution. Even while the ceasefire was in place over 3500 children had been recruited by the LTTE as documented by the UNICEF.

LTTE while denying recruiting children claims that children join the LTTE out of poverty, lack of educational opportunities, loss of parents and lack of alternative care, all this implying that children joined “voluntarily”. And the world buys these lies!

That Action Plan signed between LTTE and UNICEF saw only 172 Tamil children into the transit center for the entire year in 2003 which does not speak much of LTTE’s genuineness and demands to know what UNICEF did when it was clear to them that LTTE was not ending the recruitment of children.

What action did UNICEF take against the LTTE for recruitment of children when legally LTTE was compelled to not recruit?

http://acr.hrschool.org/mainfile.php/0118/90/

If Ted Chaiban, UNICEF Representative felt “encouraged by the positive decisions reached” following Tamilselvans statement that “LTTE has informed all military commanders and Heads of Political Sections, in writing, regarding the policy not to recruit children under 18 years of age” – we can safely say that either all these humanitarian organizations are naïve or they are clueless about LTTE’s killings.

It is no secret that the LTTE recruited children. The deaths of these children in combat, the arrests or surrender of these children since the 1980s and through the last stage of the war suffices to prove beyond any doubt how the LTTE recruited children, the intense they were subject to, the tortures they endured if they resisted and the gross violations of their fundamental rights which the LTTE denied and which international organizations witnessed by virtue of their offices adjoining those of LTTE offices in the North – so if LTTE are guilt so too are these international organizations for simply watching children function as combatants.

LTTE’s baby brigade was commandeered by Justin and initially recruited from refugee children in India who were trained in Pondicherry and Trincomalee initially non-military and used for various logistical purposes. The 1^st time these children were put to the war front was 22 November 1990 when LTTE attacked the Mankulam army camp resulting in the deaths of 2/3 of Sri Lankan troops. The baby brigade was next used on 10 July, 1991 when LTTE attacked the strategic Elephant Pass Military Complex – LTTE lost 550 of its cadres some of whom were these children. Evidence of such would be available on military files.

LTTE then resorted to combining elite Black Tigers with these children which saw battlefield victories for the LTTE in 1993 and 1996 – 2 army/navy camps were overrun and US$100m worth arms and ammunition were seized by the LTTE while the 1996 attack on Mullaitivu army base saw LTTE child combatants shoot down over 300 unarmed soldiers. Of the LTTE children’s units the Leopard Brigade (Siruthai Puli) is the fiercest of the LTTE fighter units and takes pride in killing 200 elite troops on 4 December 1997 in Kanakarankulam, Wanni

However, these children have also faced their fate as seen in the October 1995 attack by LTTE on the Weli Oya military camp where 3000 LTTE cadres are said to have died – most of whom were children and women. While in 1998 in Kilinochchi over 500 child combatants also died. These details would suffice to prove the lies of LTTE in pretending that it does not recruit children.

If children are trained to kill, and children trained to kill have no second thoughts about striking down their “enemy” whether the enemy is military or civilian – the next question is, should these “children” be tried for their crimes? Is there an internationally acceptable age for criminal responsibility.

Article 26 of the International Crimincal Court prevents it from prosecuting anyone under 18 years “on the grounds that the decision should be left to States” – Sri Lanka has used this privilege to pardon the under-age LTTE combatants from criminal charges. The logic is – if a child below 15 is too young to find he/she is also too young to be considered for criminal responsibility? This has worked perfectly for outfits like LTTE because not only have they opted to recruit children, once indoctrinated they are far more ruthless than the adults and LTTE has been able to get away with legal loopholes on persecution.

Given that children below 15 are too young to be charged for their crimes how legal would it be to charge them for these crimes when they reach adulthood?

Dominic Ongwen was 10years when he became part of the Lord’s Resistance Army in the 1980s. When ICC issued a warrant for him in 2005, Ongwen was in his 30’s. However, the ICC does not have jurisdiction to charge people before 2002 when the Rome Statue came into force. But Ongwen became the 1^st person to be charged for war crimes for which he was both victim and perpetrator.

The Sri Lanka Government has with them close to 600 former child combatants – they are now all grown up men and they are able to tell their stories of woe. Muthulingam Neminathan now 30 (born 4 June 1982), was from Kilinochchi where he lived with his parents and 2 brothers and sisters. He wanted to become a social worker, his father died when he was 6. He received LTTE training in the Maththuvil Babu camp and was forbidden from seeing his parents. He had given himself up on 17 May 2009 – LTTE taught him to use weapons and to kill, the army’s rehabilitation program has taught him vocational skills and the ability to converse in Sinhala …. These are all witnesses to LTTE crimes against children.

If the ICC’s jurisdiction is valid from 2002 – it is perfect for it was right after the infamous Cease Fire Agreement that the LTTE went on to recruit over 3500 Tamil children and the UNICEF has all these documented! The US State Dept says LTTE had recruited 1000 children in 2004 alone. There is undoubtedly enough evidence to prove that LTTE conscripted children and the entire international community was aware of it, prepared reports on it, spoke to LTTE about it and we want to know what they did about it and ask what they are going to do about it because the LTTE remains very much a threat to Sri Lanka.

ICC has also taken precautions as to what it accepts through Article 17 giving it the provision to reject cases on the grounds of “insufficient gravity” – which doesn’t say much for justice because no nation would take a case to the ICC for a joke!

If the Rome Statue on which the ICC is established requires a state Government or UNSC to refer the “situation” to the ICC, Sri Lanka should not hesitate to ask ICC to prosecute the LTTE for its crimes especially against the conscription of children without delay. And if the ICC has by virtue of its limited jurisdiction establishing as a body complementary to the national judicial system – global bullies using their international portfolios should certainly take note.

In the case of the LTTE and probably all other rebel movements conscripting children the state of the female is of much concern. They end up used a sex slaves, wives, concubines to the rebel men and their babies become “rebel babies”.

On what grounds do people of modern international governance argue that individuals are not liable for crimes committed on a grander scale? The ICC does provide that a person may be criminally liable for crimes committed jointly, for ordering or inducing the commission of a crime or for aiding it. As for children who commit atrocities while serving as a combatant whether willfully or voluntarily, ICC jurisdiction does not include children below 18 years – therefore those commanding them need to be held accountable. Either way someone must be held accountable for denying the right to life for thousands of others.

Be that as it may if national courts are able to apply national laws – it begs to ask why the Government of Sri Lanka hesitates in putting LTTE on the dock for all its crimes. A complimentary precedent to starting the ball rolling on giving justice to the many thousands who died and to the soldiers who had been mutilated by the LTTE must be the launch of a wider investigation of all players associated with the conflict through the 1980s to the military defeat of the LTTE. An investigation must be launched in order to prove that the LTTE was a “hostis humani generis” (an enemy of all mankind). It was the LTTE who committed human rights violations and no legal luminary can use his power to argue to hide that fact.

In a world where conflicts spring up like mushrooms the Lubanga trial becomes the first

war crime trial that focuses exclusively on punishment for recruiting and using child soldiers. The point we must note is that the DR Congo had a parallel national prosecution and conviction for recruitment and use of children in armed conflict and Sri Lanka needs to now take a leaf from this to kick start its own.

Sri Lanka certainly needs to explore with international entities how far LTTE remains involved and contributing towards the criminal act of human smuggling and child trafficking using these child combatants.

No international law and certainly no international representative can use his office to project a notion that rebel movements should be considered in par with national governments that are elected by the people. It is because of late that these international officials have been misusing their office to bring about amendments or existing international laws or introducing bizarre theories that have found nations at loggerheads to deal with the question of punitive action against acts of terror.

None of these officials seem to understand what it is like to live in a country where bombs, suicide missions and assassinations take place on the strength of their international propaganda to promote a notion that they are being marginalized or discriminated. Whatever “discrimination” it does not give any right for a rebel movement to take up arms and kill people who are not associated to their “grievance”.

Therefore, we question what right international agencies have to place terrorists and rebel movements on par with national governments giving them credibility for their terror actions? Has this act not made the world’s terrorists think they can involve themselves in any type of atrocity and then shake hands with international officials and forward gobbledy gook lies about what they are suffering from? And have the international community of players not created a dangerous precedence by creating the atmosphere to accept these situations as a means for them to use to their advantage against governments? Are international players not guilty by introducing a host of cockeyed theories and action plans that have helped to only make matters worse because it enables them to stay in office longer and to create further branches for their existence and allocation of funds to ensure their remuneration remains in tact. Just as much as terrorists and their commanders are to blame for the chaos that exists in the world these international players are far more accountable for misusing their office for their own advantage compromising what they should do towards bringing peace to mankind.

If children as participants in an armed conflict, being trained to hold guns and to kill is unacceptable whatever the definition is given – the onus is on international authorities given the main mandate of bringing peace to punish those that make children into combatants. It is when international representatives tasked with the mandate to bring peace extend their jurisdiction to avenues beyond their scope which makes the situation far worse and completely complicates what should be very simple and basic actions to stop terrorism taking place around the world.

So if terrorists are taking up arms and involved in conflicts all round the globe – it is these international representatives who are as much to blame as is the terrorists themselves.