Association of Humanitarian Lawyers
15 August 2007
His Excellency Jean-Maurice Ripert
French Mission to the United Nations
254 East 47th Street
New York, New York 10017
Re: Children affected by the war in Sri Lanka; legal problems with the age of combatants
International Educational Development (IED, a non-governmental organization on the Roster, Secretary-Generals list) and our sister organization the Association of Humanitarian Lawyers (AHL) have been concerned for some time about the situation of children in armed conflicts and are pleased that France has chaired the Security Council's Working Group on Children and Armed Conflict mandated by Security Council Resolution 1612 (2005).
We write now because we are deeply concerned about the situation of children in the armed conflict in Sri Lanka. AHL, whose officers and board members are all attorneys who are experts in humanitarian law, has worked to improve the situation of the Tamil people in Sri Lanka since the 1983 anti-Tamil massacres. IED, whose collaborators and some board members are also attorneys with expertise in humanitarian law, joined AHL shortly thereafter. While we have always been concerned about the situation of children in this long war, we consider the current situation, especially of Tamil children, to be at its most serious. In addition to aerial bombardments of schools, hospitals, towns and camps for the internally displaced, we note the continued blockage of land supply routes for food, medicine and water for the Tamil areas, and dire warnings from the World Health Organization and others involved in humanitarian relief that the Tamil children face starvation, serious malnutrition and illnesses as a result. Urgent action is sorely needed.
It is particularly troubling to us that the issue of ?child soldiers? in that conflict has far overshadowed these and many other grave breaches of humanitarian law affecting mostly Tamil children in this war. In this regard, we note that the Report of the Secretary-General on children in armed conflict in Sri Lanka (S/2006/1006)(Report) addresses the issue of child soldiers first, and in far more detail than any other issue, even though, as the numerous charts and graphs indicate, in the reporting period the Liberation Tigers of Tamil Eelam (LTTE) had recruited perhaps 530 persons under age eighteen, of which about 230 were fifteen or older. Report, pp. 4 – 10. There is no mention as to whether any of these youths were actually engaged in hostilities. There are no charts or graphs indicating military operations directed against civilians or the outcomes of such operations, which occur on practically a daily basis. There are only five paragraphs addressing killing of children, although the Report indicates that as of October 2006, civilian casualties for the reporting year were about 1335, of which a significant number were children (Report, pp. 11-12) and another five paragraphs addressing attacks on schools and hospitals. Report, pp.12-13. There were no charts or graphs regarding the numbers of children wounded in military operations, or malnourished or ill due to severe shortages of food, medicine and water. In the three paragraphs addressing the ?Action Plan,? one paragraph again discusses the LTTE and child soldiers, and there is no discussion at all of any other aspects of the presumably now-defunct plan that was to address such issues as urgently needed food and shelter. While the report mentions serious restrictions on humanitarian access, which of course constitutes the crime of extermination under the Rome Statute Article 7.1(b) and 7.2(b), there is no real overview of the situation of children in this war, including the fact that of the perhaps 500,000 total displaced by both the Tsunami and the renewed fighting, there are estimates that as many as 50% are children.
More troubling is the fact that international monitors, including those operating under United Nations auspices, are using the age of eighteen (18) for the minimum age for recruitment or participation in hostilities when the international law age is clearly fifteen (15). This improper application of the law has been a key element in international demonizing of the Tamil forces (LTTE), which has spilled over to the Tamil people in Sri Lanka and the Tamil diaspora as a whole in a completely unacceptable manner. It is also a factor in the unbelievable ?free ride? given to the government of Sri Lanka in regards to grave breaches of humanitarian law in this conflict, including those adversely affecting hundreds of thousands of children, the vast majority of which are Tamil.
Because of some controversy about the age for recruitment and use in hostilities of persons between the ages of fifteen and eighteen, we herein set out our evaluation of why the proper legal age is fifteen. Of course, the easiest proof of age fifteen as the minimum age for recruitment and combat is that the International Criminal Court uses that age. Rome Statute, Article 8.2(e)(vii). This provision derives from Article 77(2) of Protocol Additional I to the Geneva Conventions of 1949 and Article 4.3(c) of Protocol Additional II to the Geneva Conventions of 1949, both promulgated in 1977.  In spite of the ambiguous language in Protocol Additional I we consider that the international community as a whole has accepted age fifteen as the minimum age for participation in hostilities.
The Geneva Protocols are relatively new instruments, and instruments whose promulgation clearly allowed an opportunity for the international community to set the age for soldiers in hostilities higher. But as is clear, this did not occur. Another opportunity to evolve the age higher was present when the international community drafted and adopted the Convention on the Rights of the Child (Convention), which was adopted by the General Assembly in 1989 and entered into force in 1990. However, Article 38 of this instrument maintains the minimum age of fifteen for direct participation in hostilities.
Review of the recently published travaux preparatoires  to the Convention reveals that while there was hope by some States that the Convention would raise the minimum age for participation in hostilities, the international community as a whole would not accept this: Convention Article 38.2 repeats word for word the language of Protocol Additional I regarding age fifteen for participation in hostilities. Article 38.3 provides that States ?refrain? from recruiting children under 15. On this point, both the delegation from Switzerland and the International Committee of the Red Cross expressed concerns that Convention Article 38.3 could be construed as weakening existing law regarding civil wars. We disagree. Article 59 of the Vienna Convention on the Law of Treaties (Vienna Convention) requires that States Parties to subsequent treaties must intend the prior treaty or provisions of it to be terminated. However, Article 41 of the Convention precludes this result, as it provides that the Convention cannot affect any preexisting provisions in either national or international law, such as Article 4.3(c) of Protocol Additional II, that have a higher standard. In any case, a number of non-governmental organizations participating in the drafting of the Convention, including those composed of attorneys, proposed language that is very similar to the final language of Article 38.
In spite of the failure of the Convention to raise the legal age for participation in hostilities or of recruitment higher than fifteen, subsequent evolution of customary international law, or a specific treaty ratified by a large number of States could serve to raise it. This has not occurred.
It is clear that the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (Optional Protocol) promulgated in 2000 neither categorically raises the minimum age for participation in hostilities or of recruitment to eighteen for States Parties that have ratified it. Regarding participation, the Optional Protocol provides that States Parties are merely obliged to 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 the hostilities.? (Optional Protocol, Article 1). The Optional Protocol does not indicate what these ?feasible measures? might be, or what ?a direct part in hostilities? might mean.  In this regard, it is doubtful that there will be guidance on what ?reasonable measures? are in national or international jurisprudence in the near future given the vagueness of the terms and what we view as weaknesses in the general application of the Optional Protocol, especially its Article 6, for States Parties. While the Committee on the Rights of the Child may be able to draft proposed guidelines, such guidelines would not have universal application. In any case, the Optional Protocol language falls far short of the language of Protocol Additional II set out in footnote 5 above. If the drafters truly intended to raise the age of participation in hostilities, they would have adopted that language.
Article 3, addressing voluntary recruitment, fares no better: this article is in language so unwieldy that it is not certain what it actually means. Can this language support the proposition that the age for recruitment is raised to eighteen?:
States Parties shall raise in years the minimum age for voluntary recruitment of persons into their national forces from that set out in article 38, paragraph 3, of the Convention on the Rights of the Child, taking into account the principles contained in that article and recognizing that under the Convention persons under the age of 18 years are entitled to special protection. (Optional Protocol, Article 3.1).
This provision, whatever it might mean, is in fact completely undone by Article 3.3, which provides:
State Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that:
(a) Such recruitment is genuinely voluntary;
(b) Such recruitment is carried out with the informed consent of the person?s parents or legal guardians;
(c) Such persons are fully informed of the duties involved in military service;
(d) Such persons provide reliable proof of age prior to acceptance into military service. (Emphasis added).
Our reading of the voluntary recruitment provisions is that State Parties can do essentially whatever they like regarding voluntary recruitment of persons who have attained the age of 15 as provided under the Geneva Conventions. Construing Articles 1 and 3 together, persons who have attained the age of 15 may be voluntarily recruited (with ?safeguards?) and may engage in offensive military operations if ?all feasible measures? were undertaken to prevent it, and may engage in defensive military operations. We also note that Article 3.5 provides that military schools are exempt, further weakening any possible interpretation that Article 3 prohibits voluntary recruitment.
Article 4 of the Optional Protocol is perhaps the most disturbing one as its intention is to create different standards for the parties of armed conflicts taking place within a State. This goes counter to basic principle of humanitarian law, can seriously undermine the right to self-determination and on its face violates the Universal Declaration of Human Rights. In fact, it is so offensive to inviolate principles of law that it must be viewed as in violation of jus cogens, and hence by operation of Article 53 of the Vienna Convention, void. We assert that although the language is precatory (?should?) rather than mandatory (?shall?): even precatory language implying differing standards has no place in an international instrument.
The principle of non-discrimination is a cornerstone of basic principles of humanitarian law regarding both combatants in armed conflicts and the protection of victims of armed conflict. J. Pictet, Principles of International Humanitarian Law, Geneva, 1966 at pp. 39 – 45. Most military manuals have provisions in this regard. For example, the Canadian manual provides:
The Principle of non-discrimination must be considered in two aspects. First the LOAC [law of armed conflict] binds both sides in a conflict. Although one side may label the other side as the aggressor, it is not entitled to apply the law in a different way because of that assertion. (Canada, Office of the Judge Advocate General, The Law of Armed Conflict at the Operational and Tactical Level (1999) at 2-2.)
Granting greater rights to a State that is resisting a people fighting in defense of the right to self-determination, whether due to foreign occupation or against oppressive or racist regimes, is a clear violation of the law of self-determination, itself a jus cogens norm.
Granting greater rights to governments that have oppressed and tyrannized a people to the point of rebellion severely undermines human rights.
A sizable number of States that have ratified the Optional Protocol have done so with declarations or reservations indicating that their minimum age for recruitment or participation in hostilities is younger than 18: a fair number give their minimum as 16 and others as 17, undermining any assertions that the Optional Protocol universally raises the age to 18.
Returning to the conflict in Sri Lanka, the Parties to the conflict can only be held to the minimum age of 15 for participation in hostilities, irrespective of whether the war is a self-determination war or civil war. LTTE and the Tamil people as a whole consider the war a self-determination war, and have invoked the principle of self-determination to their struggle since 1976. This was reinforced by the 1985 Thimpu Declaration, and now by more than twenty-five years of armed conflict. As a minimum, when a self-determination claim is made, there should be careful evaluation of it by United Nations bodies due to the sacrosanct position of the right to in international law. Such evaluation has not yet been made by the Security Council in relation to the Tamil claim, but when it is undertaken, it must take into consideration both historical claims as well as claims made on the basis of continued oppression and racism that precludes the realization of human rights for the Tamil people. While we are convinced that the historical claim is valid, we are absolute in our view that events since the lowering of the British colonial flag that most of the Sinhala-controlled governments and majority political parties in the island of Ceylon have shown no intention of establishing a multicultural, racially neutral State that fully respects the rights of all its citizens. This is why the issue of Sri Lanka has been a major issue at the United Nations human rights forums since 1983. The Security Council might consider referring the question of the Tamil claim to self-determination to the International Court of Justice, which has already issued advisory opinions in regards to self-determination issues in Western Sahara and Namibia.
If the Security Council and its Working Group are truly interested in the children of Sri Lanka affected by the armed conflict, there must be careful evaluation of the situation of children in Sri Lanka in light of all of the Working Group?s six key issues. At present the most pressing issue is the denial by the government of Sri Lanka of humanitarian access to the Tamils in the North/East, and the almost universal denial of the right of United Nations investigators and others to accurately assess the situation.  Also critical is the need to properly investigate the assassinations of so many aid workers: 17 from Action contre le faim, 7 from Tamils Rehabilitation Organization, 2 from the Sri Lanka Red Cross, one from a Danish non-governmental organization. We also point out the severe restrictions placed on Medicins san frontieres and other groups, some of which have been ordered to leave and others have left due to inability to work in a meaningful way. We expect the Working Group to act on an urgent basis due to this genocidal crisis, and will not allow itself to be driven into a corner by the government of Sri Lanka.
In this regard, and in light of the issues set forth here, we expect that the next Conclusions of the Working Group in relation to the Tamil/Sinhala war will properly apply the law regarding children in armed conflict, will contain an action plan, will make recommendations to the parties to the conflict reflecting all six key issues. If the Security Council considers consequences for violations of the Geneva Conventions and the laws and customs of war, all parties should face them.
In our view, if the international community does not involve itself in this war in a more productive way, including addressing the outside geopolitical interests that are driving it, and with proper application rather than distortion of international humanitarian law, the anti-Tamil Sinhala parties may succeed in their goal of making the Tamil people so severely at risk that they are forced to flee in even greater numbers. Sri Lanka will then be Sinhala-only.
We have appreciated the leadership taken by the government of France on the issue of children affected by armed conflict. We also appreciated the strong role undertaken by France in resolving other conflicts, especially those in El Salvador and Guatemala, and the work undertaken by the current Foreign Minister during his tenure in Kosovo. We now urge your government and the Security Council?s Working Group as a whole to take a strong leadership role to resolve justly the Tamil/Sinhala war.
Thank you for your kind attention to this matter,
Karen Parker, JD
Chief UN delegate, IED
 Since the hostilities resumed in January 2006, we have submitted letters and information to, inter alia, the High Commissioner for Human Rights, the Special Advisor to the Secretary-General on the prevention of genocide, Commission and Council special rapporteurs, and the Office for the Coordination of Humanitarian Affairs on the legal issues and the necessity of urgent action. We have also submitted testimony to a concerned Parliamentary Group in the United Kingdom and circulated several briefing papers at UN human rights sessions.