IX. Legal Standards
The Karuna group and the LTTE are both in violation of international law for recruiting and using children as soldiers. The Sri Lankan government is also in violation of international law by facilitating child recruitment by the Karuna group and failing to take feasible measures to prevent such recruitment and secure the release of recruited children.
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 15 in armed conflict. This standard is also reflected in the Convention on the Rights of the Child (CRC), which Sri Lanka ratified in 1991.129 The prohibition on the recruitment and use of children below the age of 15 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 entered into force in 2002.130 The protocol raised the standards set in the Convention on the Rights of the Child by establishing 18 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.131 It also places obligations on the state to take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.132
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 16. 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 18. 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 Labour Organization (ILO) unanimously adopted the Worst Forms of Child Labour Convention (No. 182). It defines a child as any person under the age of 18 and includes in its definition of the worst forms of child labor.
Sri Lanka ratified the Worst Forms of Child Labour Convention on March 1, 2001. The convention obliges the Sri Lankan government to take immediate and effective measures to secure the prohibition and elimination of the worst forms of labour as a matter of urgency.134 Under Convention No. 182, the government is required to take measures to prevent the engagement of children in the worst forms of child labor, remove them from these circumstances, and assist their rehabilitation and social reintegration.135 Recommendation 190 accompanying Convention No. 182 encourages states to make recruitment of children under the age of 18 a criminal offense.136
In 2005, the Sri Lankan penal code was amended to bring it into conformity with ILO Convention No. 182. Forcible or compulsory recruitment of children is a crime carrying a maximum penalty of 20 years imprisonment.137
The recruitment of children under the age of 15 or their use in hostilities is also considered a war crime under the Rome Statute of 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.138
Even though, as of January 2007, Sri Lanka was not a state party to the ICC statute, individuals who are responsible for recruiting children under the age of 15 into armed groups may still be criminally responsible for acts amounting to war crimes under customary international law. In May 2004 the Appeals Chamber of the Special Court for Sierra Leone ruled that the prohibition on recruiting children below age 15 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 15 bear criminal responsibility for their acts:
Both the Karuna group and the LTTE have recruited children under age 15 into their forces. Of cases reported to UNICEF where the age of the child was known, 17 percent (1,012 cases) of children recruited to date by the LTTE were under age 15; 5 percent (10 cases) of children recruited by the Karuna group were under 15.140
International humanitarian law prohibits all parties to armed conflicts from arbitrarily depriving any person of their liberty, including through abductions and forced recruitment. Article 3 common to the four Geneva Conventions of 1949 and applicable to non-international armed conflicts, requires that all civilians be treated humanely arbitrary deprivation of liberty is incompatible with this requirement.141
On December 6, 2006, the government of Sri Lanka enacted new emergency regulations, the Prevention and Prohibition of Terrorism and Specified Terrorist Activities. The regulations prohibit any person from joining a group engaged in terrorism or taking part in any of its activities.142 The regulations apply to all individuals, including children, and make no distinction between individuals who may voluntarily join such groups and those who may join due to threats, force, or abduction. As a result, children recruited by either the LTTE or the Karuna group could be charged under the regulations, and if convicted, sentenced to prison for five to ten years.143
The regulations do not specifically prohibit the recruitment of children into organizations engaged in acts of terrorism.
129 Convention on the Rights of the Child (CRC), G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990. The CRC has been ratified by all states except Somalia and the United States.
130Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002. Sri Lanka ratified the protocol on September 8, 2000. Sri Lankas initial report to the UN Committee on the Rights of the Child on compliance with the Optional Protocol was due in 2004, but at this writing it has not yet been submitted.
131 Ibid., art. 4.
133 ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labour Convention), adopted June 17, 1999, 38 I.L.M. 1207 (entered into force November 19, 2000).
134 Ibid., art 1.
135 Ibid., arts 6, 7a, 7b.
136 ILO Recommendation concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, June 17, 1999, ILO No. R190, art. 12.
137 Sri Lankan Penal Code, section 358 A, amended 2005.
138 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 8(2)(b)(xxvi) and 8(2)(e)(vii).
139 Summary of Decision on Preliminary Motion on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Sam Hinga Norman, Appeals Chamber of the Special Court for Sierra Leone, May 31, 2004, Case Number SCSL-2003-14-AR72 (E).
140 Data supplied to Human Rights Watch by UNICEF, January 12, 2007.
141 See 1949 Geneva Conventions, article 3; see also International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge Univ. Press, 2005), see rule 99 and accompanying text.
142 Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulation no. 7 of 2006, enacted December 6, 2006, regulations 2 and 3.
143 Ibid., regulation 7.