Children and Armed Conflict in Sri Lanka:
Politics, Human Rights & the LawKasturi 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
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