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XV. International Legal Standards

The LTTE has violated its obligations under international law by recruiting children into its forces and by having children directly participate in hostilities.

International humanitarian law (the laws of war) and human rights law prohibit the recruitment and use of children as soldiers and in other combat-related roles. Protocol II to the Geneva Conventions of 1949, which applies during non-international armed conflicts (civil wars) prohibits states and non-state armed groups from recruiting or using children under the age of fifteen in armed conflict. This standard is also reflected in the Convention on the Rights of the Child (CRC), which Sri Lanka ratified in 1991.²²⁷ The prohibition on the recruitment and use of children below the age of fifteen is now considered customary international law, and is binding on all parties to armed conflict.

Sri Lanka is also party to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which was adopted by the U.N. 2000, and entered into force in 2002. The protocol raised 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 or direct participation in hostilities. The protocol also places obligations upon non-state 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.” ²²⁸

The Optional Protocol does not set a specific age for voluntary recruitment by government forces, but requires governments to deposit a binding declaration establishing their minimum voluntary recruitment age. The age set cannot be below sixteen. In the case of Sri Lanka, the government made a declaration at the time of ratification establishing that the minimum age for voluntary recruitment into government forces was eighteen. Thus, in practice, the same age limits apply for all forms of recruitment by both state and non-state forces in Sri Lanka.

In 1999, the member states of the International Labor Organization (ILO) unanimously adopted the Worst Forms of Child Labour Convention (No. 182). 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.²²⁹

Sri Lanka ratified the Worst Forms of Child Labour Convention on March 1, 2001.

The recruitment of children under the age of fifteen or their use in hostilities is also considered a war crime under the Statute for the International Criminal Court (ICC). The Statute was adopted in July 1998 and considers such recruitment a war crime under its jurisdiction whether carried out by members of national armed forces or non-state armed groups.²³⁰ As of September 2004, Sri Lanka had not ratified the ICC statute.

Even though Sri Lanka is not a state party to the ICC statute, LTTE members who are responsible for recruiting children under the age of fifteen into the LTTE’s forces may still be criminally responsible for acts amounting to war crimes under international law. In May 2004, the Appeals Chamber of the Special Court for Sierra Leone ruled that the prohibition on recruiting children below age fifteen had crystallized as customary international law prior to 1996, citing the widespread recognition and acceptance of the norm in international instruments such as the Convention on the Rights of the Child and the Additional Protocols to the Geneva Conventions.

The Special Court for Sierra Leone also found that the individuals responsible for recruiting children under the age of fifteen bear criminal responsibility for their acts:

The practice of child recruitment bears the most atrocious consequences for the children. Serious violations of fundamental guarantees lead to individual criminal responsibility. Therefore the recruitment of children was already a crime by the time of the adoption of the 1998 Rome Statute for the International Criminal Court, which codified and ensured the effective implementation of an existing customary norm relating to child recruitment rather than forming a new one.²³¹

According to accounts collected by Human Rights Watch and extensive other evidence, the LTTE recruits children into its forces from the age of eleven or twelve, recruits children forcibly, trains children for combat, and uses them as combatants or in other capacities in armed conflict. As outlined above, these practices have been condemned by the international community and constitute violations of international humanitarian law, international human rights law, international labor law, and international criminal law. They also violate the LTTE’s own stated practices and commitments.

The Sri Lankan government does not recruit children into its armed forces. However, it still has obligations regarding child soldiers under international law. Under the Convention on the Rights of the Child, the government is responsible to take “all feasible measures to ensure protection and care of children who are affected by an armed conflict,”²³² and to take “all appropriate measures” to promote the physical and psychological recovery and social reintegration of children who have been victim to armed conflicts.²³³

Under the Optional Protocol, the state has the responsibility to take measures to prevent the recruitment and use of children by non-state armed groups, including by criminalizing such practices.²³⁴

The Worst Forms of Child Labour Convention also places responsibility on the state to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency,”²³⁵ which includes the forced recruitment of children for use in armed conflict. The convention requires states to provide direct assistance for the removal of children from these situations and for their rehabilitation and social integration, and to ensure these children access to free basic education and when possible and appropriate, vocational training. The state is also expected to identify and reach out to children at special risk and take account of the special situation of girls.²³⁶

The convention obliges states parties to develop specific plans of action to address the worst forms of child labor. The recommendations accompanying the convention state that the plans should aim to denounce these abuses, reach out to and work with communities where children are at special risk, and inform sensitize and mobilize public opinion and concerned groups, including children and their families.²³⁷

UN Security Council Efforts to Achieve Compliance

The Security Council also took the unusual step of asking the U.N. secretary-general to compile and publish a list of specific parties to armed conflict that were recruiting or using child soldiers in violation of their obligations. This “name and shame” initiative was the first time that the Security Council had specifically named abusive parties, and was intended to hold violators accountable for their actions. The initial list was limited to parties to armed conflict in situations on the Security Council’s agenda, and thus excluded Sri Lanka.

In 2003, however, the Security Council expanded the scope of the list beyond the Security Council’s agenda. As a result, in November 2003, the secretary-general specifically named the LTTE among a list of parties that recruit or use children in armed conflict. In April 2004, the Council called on these parties to immediately halt their recruitment or use of child soldiers and indicated its intention to consider “appropriate steps” to address this issue in response to reliable and timely information.²³⁹ At the time of writing, the secretary-general was preparing his fifth report on children and armed conflict for the Security Council’s consideration, including information on compliance and progress made by the parties he had previously identified as violators, including the LTTE, as well as further recommendations for action.