VII. LEGAL STANDARDS
By recruiting children into its armed forces and using them to participate in armed conflict, Burma is in violation of both its national laws governing recruitment, and its binding obligations under the Convention on the Rights of the Child. In addition, the treatment of children in its forces also violates numerous other provisions of the convention.
The Convention on the Rights of the Child defines a child as any person below the age of eighteen "unless under the law applicable to the child, majority is attained earlier."178 Burma's 1993 Child Law defines "a child as a person who has not attained the age of 16 years and a youth as a person who has attained the age of 16 years but has not attained the age of 18 years."179 In regard to military recruitment, the Regulation for the Persons Subject to the Defense Services Act establishes the minimum age for recruitment into Burma's armed forces at eighteen years.180
Burma ratified the Convention on the Rights of the Child in August 1991. Article 38 of the convention prohibits the recruitment of children under the age of fifteen or their direct participation in armed conflict. It further obliges states parties that recruit children between the ages of fifteen and eighteen "to give priority to those that are oldest."181 The convention states that none of its provisions should affect laws that are more conducive to the rights of the child. Since Burma's national law prohibits recruitment below age eighteen, this standard therefore prevails.
Since the adoption of the Convention on the Rights of the Child in 1989, other international standards have been adopted that strengthen protections for children affected by armed conflict. These standards reflect a growing international consensus that children under the age of eighteen should not participate in armed conflict-a principle reflected in Burma's own national law. Human Rights Watch takes the position that no child under the age of eighteen should be recruited-either voluntarily or forcibly-into any armed forces or groups, or participate in hostilities.
In 1999, the Worst Forms of Child Labour Convention (No. 182) was unanimously adopted by member States of the International Labour Organization (ILO). It commits each state that ratifies it to "take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency." It defines a child as any person under the age of eighteen and includes in its definition of the worst forms of child labor:
All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict.182
In May 2000, the United Nations General Assembly unanimously adopted an Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Protocol raises the standards set in the Convention on the Rights of the Child by establishing eighteen as the minimum age for any conscription or forced recruitment. Under articles 1 and 2:
States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities; States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.183
States parties may accept voluntary recruits into their armed forces from the age of sixteen. Upon ratification of the protocol, states must deposit a binding declaration establishing their minimum voluntary recruitment age, and if recruiting under the age of eighteen, the measures they have adopted to ensure that such recruitment is not forced or coerced. States parties accepting under-eighteen volunteers must also maintain other safeguards including the informed consent of a child's parents or legal guardians, reliable proof of age, and ensuring that the person is fully informed of the duties involved in military service.
The Optional Protocol also places obligations upon nongovernmental armed forces. Article 4 states that "armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen." States parties must take measures to prevent such recruitment and use, including by criminalizing such practices.
The Statute for the International Criminal Court was adopted in July 1998. Although relying on the previous standard prohibiting the recruitment or use of children under fifteen, the statute defines such activities as war crimes, whether carried out by members of national armed forces or nongovernmental armed groups.184 The court may prosecute individuals for such crimes committed in the territories of ratifying states as well as for crimes committed anywhere by nationals of ratifying states.
Burma has not yet ratified ILO Convention 182, the Rome Statute for the International Criminal Court, or the Optional Protocol to the Convention on the Rights of the Child. However, these new international standards have been rapidly accepted within the international community. Convention 182 has become the most rapidly ratified treaty in ILO history, securing 129 ratifications by late August 2002. By the same time, the Optional Protocol had been signed by 110 governments, and ratified by thirty-seven. On July 1, 2002 the International Criminal Court came into being, having garnered the sixty ratifications necessary.
Apart from the prohibitions on the recruitment of children and their use in armed conflicts, Burma's treatment of children recruited into the military also violates numerous other provisions of the Convention on the Rights of the Child. Under the convention:
· All children have the right to life;
· All children should be registered immediately after birth;
· Children shall not be separated from their parents against their will;
· Children who are separated from their parents have the right to maintain direct contact with both parents on a regular basis;
· Children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation;
· Children have the right to enjoy the highest attainable standard of health;
· Children have the right to education; each state is responsible for making primary education compulsory and available free to all and to encourage the development of secondary education;
· Children have the right to rest and leisure;
· Children have the right to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development;
· Children should not be abducted, sold or trafficked;
· No child should be subjected to torture or other cruel, inhuman or degrading treatment or punishment;
· No child should be deprived of their liberty unlawfully or arbitrarily;
· Children who have been victim to exploitation, abuse or armed conflict should receive assistance for their physical and psychological recovery;
· Children alleged to have infringed the law have the right to due process, to be treated with dignity, and in a manner appropriate to their age and circumstance.185
Human Rights Watch has found that the SPDC's practices of child recruitment and its treatment of these children have violated each of these rights. Many of these violations occur on a systematic and routine basis.
Refugee Protection for Former Child Soldiers
Access to Status Determination Procedures
Former child soldiers, like all asylum seekers, must have access to refugee status determination procedures so that if they are refugees, they can receive the protection they are entitled to under international law. It is a primary obligation of states parties to the 1951 Geneva Convention Relating to the Status of Refugees (the Refugee Convention), or UNHCR as a part of its protection mandate, to establish regularized procedures to assess refugee status.186 Although earlier guidelines did not do so,187 UNHCR has since recognized that children, whether they are with family members or arrive in a host country "unaccompanied," may make their own individual claims to asylum.188 It is further understood that children in particular should be given priority and specialized attention while they are in the process of seeking asylum.
For example, UNHCR's Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines on Unaccompanied Children) state that given their "vulnerability and special needs, it is essential that children's refugee status applications be given priority and that every effort be made to reach a decision promptly and fairly."189 The UNHCR Guidelines on Protection and Care of Refugee Children, 1994 (UNHCR Guidelines on Refugee Children) stress the importance of keeping children informed during the status determination process,190 and of giving unaccompanied children the benefit of the doubt when assessing the credibility of their refugee claims.191
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the Handbook), which provides guidance to states on procedures and criteria for determining refugee status, contains little direction on determining the refugee claims of minors, such as former child soldiers.
Protecting Former Child Soldiers from forcible return
Child soldiers who desert and flee to neighboring countries should be protected against forcible return to Burma. Under the Refugee Convention, refugees are protected against forcible return to a country where their lives or freedom would be threatened.192 The obligation of non-refoulement lies at the center of refugee protection and is now a well-established principle of customary international law.193 Former child soldiers, such as children deserting from military action in Burma, would undoubtedly face serious threats to their lives and freedom in Burma, including the threat of summary execution, and hence should be protected against forcible return. Countries that have not ratified the Refugee Convention, such as Thailand, are still bound by non-refoulement obligations under customary international law.
Moreover, the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) prohibits the return of a person to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture. The prohibitions against torture and against the return of persons to a country where they could face torture, or cruel, inhuman or degrading treatment have also been recognized as principles of customary international law.194 Thus even though Thailand has not ratified the Convention Against Torture it would, under customary international law, be prohibited from returning former child soldiers to Burma where they could face summary execution or other severe punishments.
Criteria For Granting Refugee Status To Former Child Soldiers
As discussed above, the Optional Protocol to the 1989 Convention on the Rights of the Child amends the prohibition on the recruitment of under fifteen year olds into military service under article 38, to a prohibition on forced recruitment of under eighteen year olds or their participation in armed conflict. There has been widespread international support for this position, including by international organizations. UNHCR, for example, has taken the position that all forms of child participation in armed conflict, whether direct or indirect, regardless of the child's or parent's consent, should be prohibited for all persons below the age of eighteen.195 UNHCR also took the position during the deliberations on the Statute for the International Criminal Court that the use of children in hostilities should be considered as a war crime.196
Under the Refugee Convention, a person can be considered a refugee if he or she fears persecution on the grounds of his or her race, religion, nationality, social group, or political opinion.197 UNHCR's Guidelines on Unaccompanied Children make specific reference to the Convention on the Rights of the Child and child recruitment when discussing the criteria for granting refugee protection to children. The UNHCR Guidelines state that:
It should be further borne in mind that, under the Convention on the Rights of the Child, children are recognized certain specific human rights, and that the manner in which those rights may be violated as well as the nature of such violations may be different from those that may occur in the case of adults. Certain policies and practices constituting gross violations of specific rights of the child may, under certain circumstances, lead to situations that fall within the scope of the Refugee Convention. Examples of such policies and practices are the recruitment of children for regular or irregular armies, their subjection to forced labour, the trafficking of children for prostitution and sexual exploitation and the practice of female genital mutilation.198 (emphasis added)
Given that the recruitment of children is increasingly condemned by the international community, that forced recruitment of children is widely accepted as a violation of international law, and that the recruitment of children under age fifteen is considered a war crime, the recruitment of children into the Burma army and opposition armies can be considered as giving rise to a well founded fear of persecution under the Refugee Convention.
Moreover, former child soldiers could also have a well-founded fear of future persecution if they are returned to Burma. As already described, children who have deserted are at serious risk of re-recruitment. Burma army deserters who are caught face jail sentences of three to five years, often followed by conscription back into the army. If they surrender to opposition resistance groups, they face possible execution if they are suspected of being spies. Child soldiers who have fought for opposition armies and surrender to the Burma army are often forced to join small proxy armies and fight against their former comrades. Whether by the Burma army or opposition forces, the re-recruitment of children under the age of eighteen constitutes a serious human rights abuse and violation of international law.
Desertion and persecution
Standing alone, fear of prosecution for desertion is not usually considered a ground for granting refugee protection. The Handbook states that
[w]hether military service is compulsory or not, desertion is invariably considered a criminal offence. The penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment of desertion or draft-evasion does not in itself constitute well-founded fear of persecution. . . . A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. . . . It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action.199
Association with condemned military action
However, the Handbook stipulates various exceptions to this norm that may apply to former child soldiers. Most significantly, the Handbook states that
[w]here, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.200
The "type of military" actions that many child deserters do not wish to be associated with are contrary to the basic rules of human conduct. As discussed earlier in this report, child soldiers in the Burma army are frequently forced to round up civilians for forced labor, beat and kick them, burn houses, and even participate in massacres of women and children. As violations of the laws of war201, these military actions are contrary to the basic rules of human conduct. For former child soldiers who may reach the age of adulthood before seeking asylum in a neighboring country, their claims to asylum would best fit within this condemned military action exception to the Handbook's deserter rule.
In addition, child deserters are by definition seeking to disassociate themselves from a military force that recruits child soldiers, a practice that is widely considered to be a gross human rights violation and is prohibited under international law.
Given the fact that the forced recruitment of children below the age of eighteen is widely condemned by the international community and considered a violation of international law, former child soldiers who fear punishment for desertion could be entitled to refugee protection.
The refugee definition
In all of the above cases, former child soldiers should be provided with refugee protection if they meet the other requirements under the Refugee Convention. In other words, if a former child soldier could prove that he was likely to be persecuted on account of one of the five grounds-race, religion, nationality, membership of a social group, or political opinion-he would qualify for refugee protection. Refugee status inquiries must always be particularized to the individual. Although three of these grounds are examined briefly below, former child soldiers may have specific fears of persecution that fit any one or any combination of the above five grounds.
Some former child soldiers from Burma belong to an ethnic group, such as the Karen, Karenni, and Shan, which can cause them to have a well-founded fear of persecution on account of race. The government often targets members of Burma's approximately fifteen major ethnic groups (or their subgroups) for discrimination202 and serious human rights violations, and the targeting may be heightened for some ethnicities because opposition groups associated with them are literally at war with the regime.203
Second, some former child soldiers may face persecution in Burma on account of their political opinions. As documented in this report, some children were opposed to the practice of forced recruitment of children or to any of the other serious human rights violations committed by the Burma army or opposition groups. While some children may have been outwardly expressive of these views during the time they were soldiers, vocal opposition is not required in order to receive recognition under the Convention. Political opinions could also be attributed or imputed to the former child soldier by his persecutors.204
Many of the children we interviewed admitted being in opposition to the Burma army and its practices, and indeed mentioned this as a rationale for their desertion.205 In addition, several children explained how the fact of their flight to Thailand would place them at risk of increased persecution upon their return to Burma.206 As a result, some former child soldiers who return to Burma and encounter their former commanders or other representatives of the Burma government could be attributed with opposition views, both because of their desertion and because of their flight to a neighboring country, and therefore be at risk of persecution on political grounds.
Finally, some former child soldiers may face persecution in Burma because of their membership in the particular social group of children. In guidelines recently published by UNHCR on "membership of a particular social group," UNHCR uses the following definition:
a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights207
This report has demonstrated that many children in Burma, including those who are former child soldiers, are at risk of forced recruitment. As discussed above, forced recruitment is a serious violation of human rights, and UNHCR has recognized that serious violations of human rights constitute persecution.208 As discussed previously in this report, military recruiters in Burma seek out children because they are more easily recruited and can be readily taught to perform difficult or gruesome tasks. Therefore, some former child soldiers may fear re-recruitment, and therefore persecution on account of their membership in the particular social group of children in Burma.
As noted earlier in this report,209 in practice, access to refugee camps is not available to the vast majority of former child soldiers from Burma, and most find it too difficult and dangerous to travel to a UNHCR office to seek a refugee status determination. Human Rights Watch is not aware of any cases in which former child soldiers from Burma have received protection documents or other assistance from UNHCR.
178 Article 1.
179 SLORC Law No. 9/93, adopted July 14, 1993, section 2 (a) and section 2 (b), cited in Myanmar's initial State party report to the Committee on the Rights of the Child, CRC/C/8/Add.9, 18 September 1995, paragraph 21.
180 Letter from the Permanent Mission of the Union of Myanmar to the United Nations, New York, to Human Rights Watch, May 8, 2002.
181 Convention on the Rights of the Child, Article 38, G.A. res. 44/25, U.N. Doc. A/RES/44/25 (adopted November 20, 1989; entered into force September 2, 1990). This provision is based on the 1977 Additional Protocols to the Geneva Conventions. Article 4(3)(c) of Protocol II, which governs non-international armed conflicts, states that "children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities."
182 Article 3 (a), Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO No. 182), 38 I.L.M. 1207 (1999), entered into force November 19, 2000.
183 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, A/RES/54/263, adopted May 25, 2000, entered into force February 12, 2002.
184 Article 8 (2)(b)(xxvi) and Article 8 (2)(e)(vii), Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, adopted July 17, 1998, entered into force July 1, 2002.
185 Convention on the Rights of the Child, articles 6, 7, 9, 19, 22, 24, 28, 31, 32, 35, 37, 39, 40.
186 See "The Determination of Refugee Status," ExCom Conclusion No. 8 (1977). The Executive Committee ("ExCom") is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and ExCom member states are obliged to abide by them.
187 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status requires revision in order to reflect the current state of international law, particularly the Convention on the Rights of the Child. The Handbook states that "in the absence of indications to the contrary - a person of 16 or over may be regarded as sufficiently mature to have a well-founded fear of persecution. Minors under 16 years of age may normally be assumed not to be sufficiently mature. They may have fear and a will of their own, but these may not have the same significance as in the case of an adult." UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR 1979, 1992), pp. 50-51, paragraphs 213 and 215.
188 See, e.g. Guidelines on Refugee Children, pp. 98-99.
189 UNHCR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children, Geneva, February 1997, p. 9, paragraph 8.1
190 UNHCR Guidelines on Refugee Children, p. 102.
191 UNHCR Guidelines on Refugee Children, p.101. In addition, as part of its staff training package, UNHCR teaches the importance of ensuring that unaccompanied children gain access to refugee status determination procedures and that they are fully informed about the procedure. UNHCR Training Module: Interviewing Applicants for Refugee Status, 1995, RLD4.
192 Article 33 (1) of the Refugee Convention.
193 The customary international law norm of non-refoulement protects refugees from being returned to a place where their lives or freedom are under threat. Customary international law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That non-refoulement is a norm of customary international law is well-established. See, e.g. ExCom Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980; No. 25, General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCR's ExCom stated that non-refoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom Conclusion No. 25, General Conclusion on International Protection, 1982. The Executive Committee ("ExCom") is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law and ExCom member states are obliged to abide by them. Thailand is an ExCom member state and as such is obligated to respect the international standards stipulated in the Conclusions.
194 See U.N. Human Rights Committee, General Comment No. 24 (52) (1994) at para 8 and Human Rights Committee, General Comment No. 20 (1992) at para 9.
195 See UNHCR Comments on the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflicts and UN bodies call for a prohibition on the recruitment and participation of children under age 18 in armed conflict, UNHCR statement, January 12, 2000.
196 Written communication between UNHCR and Human Rights Watch, July 17, 2002.
197 Article 1A of the Refugee Convention defines a refugee as someone with a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."
198 UNHCR Guidelines on Unaccompanied Children, paragraph 8.7.
199 UNHCR Handbook, pp. 39-40, paragraphs 167, 168, and 171.
200 Ibid., p. 40, paragraph 171.
201 Article 3 common to the four Geneva Conventions of 12 August 1949, which applies to internal (as opposed to international) armed conflicts, states that "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited in any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people."
202 UNHCR recognizes that "discrimination on racial grounds will frequently amount to persecution in the sense of the 1951 Convention. This will be the case if, as a result of racial discrimination, a person's human dignity is affected to such an extent as to be incompatible with the most elementary and inalienable human rights." UNHCR Handbook, para. 69.
203 See discussion at pp. 15-17, above.
204 UNHCR Handbook, para 80 (recognizing that some political opinions can be "attributed. . .to the applicant").
205 Under Burmese law, desertion is a political offence, which is not grounds for refugee status (see discussion above). However, UNHCR's Handbook states that "there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution." UNHCR Handbook, para 85.
206 A person who was not a refugee when he or she left her country, but who becomes a refugee at a later date, is called a refugee "sur place." UNHCR's Status Determination Handbook notes that, "a person may become a refugee `sur place' as a result of his own actions. . . . Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." UNHCR Handbook, para. 96.
207 UNHCR Guidelines on International Protection: "Membership of a particular social group" within the context of Article 1A (2) of the 1951 Convention and/ or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/02, May 7, 2002.
208 See Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR 1979, 1992) at p. 51 (stating that "[o]ther serious violations of human rights. . .would also constitute persecution").
209 See section entitled "Options."