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Home > Struggle for Tamil Eelam > Sri Lanka Accused at United Nations > UN Human Rights Council - 2006: Inaugural Session > UN Human Rights Council - Second Session, September 2006 >UN Human Rights Council - Fourth Session, March 2007 > International Federation of Tamils Report to the President of the Human Rights Council on Sri Lanka: The Human Rights and Humanitarian Crisis in the North - East
 UN HUMAN RIGHTS COUNCILFourth Session - March 2007
Humanitarian and political crisis in Sri Lanka The International League for the Rights and Liberation of Peoples (LIDLIP) has been engaged for decades in international fora, not least the United Nations and here especially the Human Rights Commission/Council, to support the struggle of peoples around the world for liberation from oppression. Despite ups and downs, we have kept up hope that at last rhetoric will be translated into action, collective human rights prevail. Today, however, we witness but outright repression. Military might has replaced justice, an unqualified fight against ‘terrorism’, the struggle for freedom, considerations of state security, the advancement of human rights. Unfortunately, this very organization has not escaped this process of silencing the voices of the oppressed. As a result, the subjugated peoples have but one recourse left - to take up arms. Sri Lanka is a case in point. It is just five years that, facilitated by Norway, a Memorandum of Understanding (MoU) and a ceasefire agreement between the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka were signed eventually followed by peace talks. There was optimism that almost twenty years of civil war that had cost more than 65.000 lives, rendered over half a million internally displaced (IDPs) and drove close to a million people as refugees to foreign shores, had finally come to end. The intervention of international actors, their promise of financial aid in line with progress at the negotiating table, the readiness of the LTTE to explore first the possibilities of internal self-determination, seemed to augur well for an eventual settlement ushering into a lasting peace, and a return to the rule of law. Today, all those hopes are in shatters. The ceasefire exists on paper only, conflict has resumed; violence has escalated; the number of dead, and refugees as much as of abductions, extrajudicial killings, and of torture are on the rise. But more than just a deplorable set-back, the whole attempt to achieve a negotiated peace for war-torn Sri Lanka based on large-scale autonomy has failed. Instead of creating a model for other plural, multi-national societies, the process of durably settling a civil war by successfully negotiating territorial autonomy for minority peoples, if not the whole concept of internal self-determination, has been put into doubt. At least for the Sri Lankan Tamils it is no longer an option; their only salvation lies in an independent state. What are the causes for this renewed failure? What role has the international community played in these developments? What lessons can be learned?
If the United Nations, the Human Rights Council, want to regain credibility, moral stature and space for political manoeuvre, both their statist predeliction as well as their a-historic approach to conflicts will have to be abandoned. Sri Lanka illustrates the point: the causes for the conflict lie in the increasing ethnic politicization of state and society constitutionally enshrined in a centralized state which have inevitably led to militarization and armed conflict. The concerns of the Human Rights Council and the mandates of reports limited as they are in time and content (issue), by contrast, essentially reflect less the roots of conflicts rather than the resulting manifestations of crisis characterized by human rights violations on both sides. As such, they represent an impasse, are totally unsuited to open-up perspectives for just solutions.
The genocidal crisis in Sri Lanka1 1. On 29 January 2007 International Educational Development, Inc. (IED) and the Association of Humanitarian Lawyers (AHL) submitted a letter on the genocidal crisis in Sri Lanka against the Tamil people in that country to the High Commissioner for Human Rights and the Special Advisor to the Secretary-General on the Prevention of Genocide. The situation of the Tamil people in Sri Lanka has disintegrated so seriously that the Tamil peoples, already victims of ethnic cleansing and other gross violations of human rights and humanitarian law, are at serious risk of genocide. The following paragraphs are excerpts from that letter:
2. We also indicated that the day to day realities of Tamils in Sri Lanka prompts nearly daily “urgent action” type requests to essentially all the Human Rights Council’s Special Procedures that we urge supports the view that the situation against the Tamils is genocidal. We provided a brief review of some of the pressing issues under the mandates of Council’s list of special procedures:
We also indicated that the mandate of the Independent Expert of human rights and international solidarity was invoked due to the steady and shrill anti-Tamil rhetoric from numerous Sinhala government officials that is unfortunately echoed by other parties both in Sri Lanka and abroad. We indicated that the mandate of the Working Group on Mercenaries was invoked by the “Karuna Group.” 3. We have long noted that the government of Sri Lanka has been given extraordinary latitude by the international community. If the Tamils are to survive as a people in Sri Lanka, this must change immediately. Sri Lanka’s promise to establish the “eminent persons” team of international experts to monitor its own investigative Commission derailed potentially useful action contemplated by the Council in its 2nd session. Now, four months later, such a team has yet to be put in place, and even if it were, it is doubtful it can have much impact as the government of Sri Lanka has put conditions on the team regarding what it can investigate. In particular, we stress that this team will not be able to fully investigate the genocidal crisis involving the Tamil people. On our view, this is a very obvious tactic to delay more meaningful scrutiny and action while the government pushes to annihilate the Tamils. We also note that the countries and regional organizations submitting candidates for the imminent persons team have, for the most part, demonstrated decidedly anti-Tamil policies themselves, so we are skeptical of their motives of engaging in this plan. The Council should insist on its own team, such as the teams sent to Lebanon and Sudan where there have been similar crises. Failure to do so will haunt the Council as it seeks to extricate itself from the alleged politicization of the Commission on Human Rights. 4. On a number of occasions we have communicated our concerns that the geopolitical interests of other countries, in particular the United States, in the Tamil areas of Sri Lanka have been a factor in the failure to resolve this conflict.4 These same geopolitical interests may now be a factor in possible genocide.
In this regard, we have wondered why the international community as a whole has not understood that it is encouraging a United States policy when it fails to adequately address the Tamil issue in Sri Lanka. In any case, unless it is already too late, the United Nations and its human rights defenders may be the only hope that the Tamils have to prevent their annihilation. 5. We communicated to the High Commissioner and the Special Advisor that we are aware that anyone who either criticizes the government of Sri Lanka or indicates any sympathy for the plight of Tamils will be subjected to strong complaints and accusations from the government. Two Secretary-Generals (Boutros-Ghali and Annan) have been pilloried by Sri Lankan officials, as has Alan Rock, the investigator on issue of children in armed conflict. We are also aware of attacks on Catholic Church congregations, aid providers, and a number of other people and groups who express concern for the Tamils in Sri Lanka. We view this as part of a genocidal agenda. 6. We concluded our letter quoting former Secretary-General Kofi Annan:
Children and armed conflict 1 1. International Educational Development (IED) has long been concerned about the situation of children affected by armed conflicts because our organization’s primary mandate is the application of humanitarian law in all armed conflicts. We note with interest the concern about children and armed conflict shown by the Security Council, and especially the efforts made by its Working group on children and armed conflict that it established in July 2005 and is most ably chaired by France. 2. The Working group has developed a list of six key issues for the monitoring and reporting mechanism: (a) the killing and maiming of children; (2) recruiting and using child soldiers; (3) attacks against schools and hospitals; (4) rape and other grave sexual violations against children; (5) abduction of children; and (6) denial of humanitarian aid access to children. 3. While we agree these areas of review are of critical importance, in our view monitoring and reporting should provide the most comprehensive picture possible of the situation of children in any particular conflict. For example, in many wars there are large numbers of war-displaced children. Displacement is frequently under extreme hardship conditions for children, with lack of shelter; inadequate food, water or medical care; separation from parents; and lack of schooling. A comprehensive approach to reviewing a particular conflict that adversely affects children can help plan for and deliver the most appropriate relief from national or international relief providers. 4. While war in general results in internal displacement, combatant groups, whether government forces or opposition forces, frequently target the civilian population with military bombardments or use food as a weapon of war to force them to flee a particular area. When the targeted civilians are of a particular ethnicity, this results in ethnic cleansing. Such was the case in several of the parts of the former Yugoslavia, in Burundi, in Sri Lanka and in other current or recently ended conflicts. In Sri Lanka, for example, Tamil civilians, a large percentage of which are children, were recently starved out and bombarded out of the Vaharai region in the East of the island-- a Tamil area for hundreds of years. As in other areas where Tamil civilians were forced to flee, the government is already relocating Sinhala people from the Sinhala areas into this newly “ethnically cleansed” area. 5. We agree that the issue of the recruitment and use of child soldiers is extremely important, but have some concerns relating to at what age a child is a child soldier. The current law of armed conflict, in particular the Geneva Conventions of 1949 and the Protocols Additional of the Geneva Conventions, promulgated in 1977, provide that the minimum age for soldiers is 15. For example, Article 77.2 of Protocol Additional I provides, in pertinent part:
The rules also indicate that recruitment shall give priority to the oldest of those between fifteen and eighteen. Article 38.2 and 38.3 of the Convention on the Rights of the Child also reflects this established rule. We note that the International Criminal Court has established that charges of using child soldiers brought in March 2006 against Thomas Lubanga Dyilo, a militia leader of the Union of Congolese Patriots, will use the age fifteen. This has been confirmed by the pre-trial Chamber on 29 January 2007. 6. In spite of the rights and duties of combatant forces established in humanitarian law, the Optional Protocol to the Convention on the Rights of the Child raises the age of recruitment and participation in hostilities in a very troubling way. Article 3.1 to the Optional Protocol states that Parties “shall” raise the age of voluntary recruitment to age eighteen. Normally, the term “shall” in international instruments is absolute. However, in the Article 3.3, the Optional Protocol addresses Parties that do not, in fact comply with Article 3.1: the Parties that recruit and use at an unspecified age younger than eighteen must provide certain safeguards related to that recruitment and use. In this light, the Optional Protocol does not actually change the age of recruitment or use of children between the ages of fifteen and eighteen at all, but rather keeps the ages established by the Geneva Conventions and Protocols Additional. States that in their national law limit recruitment and use of combatants to those who have attained age eighteen, have no need to ratify this Optional Protocol. Those that recruit at a younger age (but, of course, only those that have attained the age of fifteen) have no reason to ratify this Optional Protocol either, as they can merely cite Article 3.3 and change nothing except ensure unspecified “safeguards.” 7. Even more troubling in the Optional Protocol is the provision of Article 4, which purports to obligate “armed groups” other than government forces not to recruit or use soldiers under the age of eighteen. This provision alters the clear language of the Geneva Conventions and Protocols Additional, which provide “armed groups” with the same age fifteen choice as government forces. The Optional Protocol does not on its face indicate that it is undermining the Geneva Conventions or other norms of customary international humanitarian law. In our view a subsequent treaty may not reach back to an earlier treaty and modify it without clear notice to the States Parties that that is what their ratification would signify. Further, the “armed groups” with rights under the Geneva Conventions are not States Parties of the Optional Protocol, and thus can have no rights or duties altered by it in reference to them: it is a fundamental principle of international law that a treaty may not alter rights and duties of third parties with rights under other treaties without their full consent. Of course, “other groups” can agree voluntarily to the age requirements of the Optional Protocol, but they are also free to reject such agreements at any time. In our view, the International Criminal Court’s decision to use the age fifteen in it case against Thomas Lubang Dyilo reflects our analysis. 8. We are aware of the political agenda of various actors relating to this highly controversial measure and that this issue has been exploited in relation to certain armed conflicts, most especially in Sri Lanka. In the armed conflict there, over-emphasis on a relatively small issue in the context of the devastation this war has rained on mostly Tamil children has allowed a genocidal catastrophe to be sidelined over quibbling on names and numbers of combatants, many of whom are admitted to be age seventeen. Even the special mission carried out by the Special Representative of the Secretary General on Children Affected by Armed Conflict focused almost exclusively on the child soldier controversy and covered, albeit in a cursory fashion, only a few of the other, far more critical issues, for Tamil children affected by war. Further, there was no mention at all of targeting of Tamil schools and hospitals or the killing or maiming of Tamil children. Finally, there was no presentation of the overall situation of children in the armed conflict in Sri Lanka, including the fact that nearly one-third of all Tamil children in the war area are in camps for the displaced under brutal conditions with a life-stunting shortage of food. 9. The Human Rights Council can play a useful role in efforts to address the situation of children adversely affected by armed conflict. First of all, it can indicate its support for a comprehensive monitoring and reporting effort by the Security Council’s Working group. Secondly, it can propose an advisory opinion of the International Court of Justice on the problems set out here on the Optional Protocol to the Convention on the Rights of the Child regarding the legal age of combatants. Thirdly, it can adopt a balanced approach regarding all armed conflicts in which children are adversely affected and call on the international community as a whole as well as the mechanisms of the United Nations to provide effective remedies and relief.
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