Child Rights on the Firing Line

by Wison Gnanadass, The Nation, December 11, 2008

Sri Lanka's October, 2008 report to the UN Committee on the Rights of the Child can be read here. (Scroll down to Sri Lanka's entry.)

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"Attaining the Milennium Development Goals in Sri Lanka" by the World Bank here. Gives much data on child welfare in Sri Lanka, including infant mortality, child malnutrition, etc.

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November 20, marked the 19th anniversary of the United Nations Convention on the Rights of the Child (UNCRC).

Every state / government, that was signatory to the UNCRC that was unanimously adopted in 1989 by the UN General Assembly, submitted reports on the various mechanisms adopted to safeguard the basic fundamental rights of children.

The UNCRC has been ratified by almost all the governments except Somalia and the US.

The UNCRC enshrines children’s rights to survival, development, protection and their right to be heard, which affect the quality and day-to-day realities of children’s lives.

Sri Lanka too submitted her proposals in June and it appears so far there has not been any submission of the alternative reports that are usually prepared and sent to Geneva by the civil society.

While Sri Lanka is one of the countries in the world that has advocated various methods to safeguard the rights of a child, yet, the country has still not found a way to prevent children from being coerced into the deadly war that rages between the Liberation Tigers of Tamil Eelam (LTTE) and the Government security forces.

The report submitted by Sri Lanka to the UNCRC, has placed much emphasis on the trauma a child undergoes as a result of forced recruitment by militant groups to wage war.

It appears that though Sri Lanka has evolved several mechanisms to protect the rights of children, it has not been able to help children who had been caught in the prolonging war in the north and east.

One of Sri Lanka’s achievements is the creation of the National Child Protection Authority (NCPA) which even some of the developed countries have not done.

The priority and emphasis of the successive governments on the protection of children from abuse and exploitation is therefore well manifested through the creation of this separate statutory authority, namely the NCPA.

The NCPA was established through an Act of Parliament in 1998. It functions as a multi-sectoral government body with an infrastructure capable of effectively responding to child abuse and exploitation, so that the Government could fulfil its obligations under the CRC in relation to child protection issues.

Pioneer
Sri Lanka is also one of the pioneering countries to the creation of End Child Prostitution and Trafficking of Children for Sexual Purposes (ECPAT International).

Initially there were 70 member countries, with Sri Lanka, Thailand, Taiwan and Philippines being the founder members. But now the ECPAT International has embraced some 74 countries.

Moureen Seneviratne, the founder of Protecting Environment and Children Everywhere (PEACE) was one of the pioneering members of ECPAT International.

Besides, the other Government agencies involved in the protection of the rights of the child in Sri Lanka are:
* Ministry of Child Development and Women’s Empowerment (MCDWE)
* Department of Probation and Child Care Services (DPCCS)
* Human Rights Commission of Sri Lanka (HRCSL)

These institutions are in addition to the child focussed organisations both local and international that exist in Sri Lanka namely; Sarvodaya, Christian Children’s Fund – Canada, PLAN International, CARE, Save the Children and UN organisations for Children – UNICEF.

Sri Lanka also has authoritative promotions officers and probation officers in addition to woman and children desks at almost all the police stations.

Appalling
Despite the establishment of such strong statutory bodies and various other organisations aimed at protecting children and preventing exploitation, child abuse is rampant in Sri Lanka.

According to Chief Inspector (CI) of the Women and Children Desk at the Police headquarters, Budhika Balachandra, an estimated 1,417 grave crimes have been reported against children from January to August this year (2008) alone.

This figure is only the number of abuse cases reported to the police stations officially.

According to CI Balachandra there could be umpteen number of unreported cases that have yet to be reported.

Defining ‘grave crimes’, CI Balachandra said they are: murder, attempted murder, torture, grave sexual abuse, rape, kidnap, incest and cruelty against innocent children.

A matter that seemed to be worrying CI Balachandra was the excessive use of mobile phones by children. He said, quoting a report, nearly 40 % of the Sri Lankan students were in possession of mobile phones and added this latest technology has helped students view obscene pictures including blue films with the use of their mobile phones.

According to another child rights activist, when a child has access to various obscene and lewd pictures and even movies, his/her mind becomes insensitive to crimes like murder and rape.

This according to CI Balachandra is the weakness of the parents who are not able to check, especially on their school going children.

For CI Balachandra, Act. No. 23 of 1983 only provides for a prison sentence of one year and a fine of Rs. 10,000 on anyone violating child rights. This penalty, he says is inadequate. He feels this piece of law should be amended.

Causes for child abuse
Overall Programme Coordinator for PEACE, Kevin Balthazaar, has attributed migration of women to the growing child abuse cases that have been reported in the recent past.

He says when children felt abandoned after their mothers migrated abroad, there was a tendency for them to look for exits, to ease their tension. He says in the process of finding out remedies to ease their tension, children usually ended up either in a brothel or a rehabilitation centre after committing various offences.

According to him in the absence of the mothers, the fathers usually got used to alcohol or got involved in extra marital affairs which, he said, had the greatest impact on children and their future.

While Sri Lanka is a signatory to many Treaties and UN conventions, Balthazaar says it is unfortunate that Lankan children are continued to be harassed and victimised.

However he points out that the only positive feature in Sri Lanka is that successive governments have enabled every abused child to seek protection from any one of the above mentioned institutions or organisations.

Inadequacy
The UN committee in its previous report addressed to Sri Lanka has said recommendations regarding, inter alia, harmonisation of legislation, coordination of implementation of the Convention, child participation and juvenile justice, have not been given sufficient follow-up. Sri Lanka in its reply, has said that follow-up action in relation to these as well as other areas mentioned in the initial report, will be looked into.

Though the Witness and Victim Protection Bill of 2008 seems to provide a significant and high level of protection and relief to both victims and witnesses which includes children, yet there appears to be a lacuna.

For instance, where can a child who is raped be kept for safety, protection and for physical as well as mental/psychological treatment? Have the successive governments that have signed various conventions and treaties given consideration to this vacuum?

In fact, it is unfortunate to note that there is no state sponsored shelters for such victims, though the Witness and Victim Protection Bill is in existence.

Such rape victims had to be admitted to institutions run by Non Governmental Organisations (NGO’s).

Dr.Charika Marasinghe, a human rights and child rights consultant, says though the country has adopted a number of attractive action plans for children, the majority of them have still not taken off the ground.

She says two days after the December 2004 tsunami, the Government drafted the Action Plan for Children for 2008, but it has still not been implemented.

According to her, the politicians do not show a political will to implement several of those conventions and drafts prepared by the Government itself.

She also further noted that political parties have used children’s and women’s issues to gain political mileage.

She said when the country opened the flood gate to the open market system, the gate to the social back up system was not opened. And this gap, she adds, that has today led to a huge crisis among the children and women.

Weak
“For instance, when the parents are weak, unhealthy and are incapable of providing the best for their children, there is no mechanism by the State to come forward, and provide what is necessary to these children. This is a short-sightedness on the part of the Governments in Sri Lanka,” she observed.
Dr. Marasinghe also looked at basic rights of children and said that this was something that they lacked in Sri Lanka.

For instance, she said that most children were not given the right to choose the curriculum that they wanted to follow in schools, because of a lack of resources. She said unequal distribution of resources to the students have also become another issue in Sri Lanka.

“For example we have 9000 schools in the country and around 600 schools offer subjects in science. How about the students who wish to take up science subjects for their A/Ls? Now this is an indication that there is unequal distribution of resources. What the child needs in this country is not understood by policy makers,” she said.
She emphasised that children’s aspirations have been undermined because the so called policy makers could not accommodate the children’s views.

“Nowadays children are greatly exposed to technology and information. They are intelligent. When the state is unable to cater to their needs, they become frustrated. The country will soon see a frustrated young population,” she warned.

Politicised
Children’s issues, like any other, have also been politicised in Sri Lanka. With the change of Governments, policies aimed at protecting children have also changed rapidly.

For instance, the Children’s Secretariat was created in 1979 and initially the Secretariat was attached to the Ministry of Planning and Implementation.

However, with the changes of governments, the Secretariat has also been shifted to different places. The change in the Secretariat and the governments has also seen changes of experts and officials who were well versed with the subject.

Thereafter, whenever a new official was appointed, he/she tried to introduce new policies and tried new methods, and this has again brought about confusion.

Probation and child care is a devolved subject. Probation officers are attached to probation offices in the provincial governments. However the Government a couple of years ago, appointed Child Rights Promotion Officers at the central level.

There seems to be confusion over these appointments and Dr. Marasinghe observes that the whole mechanism has to be revisited.

Children kept in dark
Has any successive government taken steps to educate children about the rights and privileges they are entitled to, in accordance with the law of the land?
Awareness on Child’s Rights by children and their caregivers is an area the governments have still not focused on, while trotting around the globe, signing various conventions and agreements.

The mere fact that mechanism is available for children’s protection is insufficient if the children are not made to know about it, says Menaca Calyanaratne, Head of the Media and Communication - Save the Children.

She is also concerned about the deteriorating respect for the children by the elders. She says the elders are aware of the laws that govern the children to some extent, but do not wish to share with them (children), for reasons best known to them.

“Why is this? Why aren’t the adults teaching the small children of their rights and privileges? Do the adults feel it is a threat to them to do so? Or is it that they just don’t want the little ones to know what they are entitled to?” she asked.

“We have a long way to go in terms of respecting children by the adults. Many times we adults have failed to give a listening ear to small children, whether they were right or wrong,” she said.

Child recruitment
Another problem area that successive governments could not resolve has been child recruitment by various militant groups to fight the ongoing war.

The Government in its report to the UNCRC submitted in June this year, has pointed out that child recruitment for war has never decreased over the years.

The report says that the Penal Code (Amendment) Act No. 16 of 2006 relating to the prohibition on recruitment of children as combatants, was enacted in Parliament on January 1, 2006. Therefore, engaging or recruiting children for use in armed conflict is now recognised as an offence.

According to the law any person convicted of this offence shall be liable to imprisonment of either description for a term not exceeding 30 years, and to a fine.

The report says that an Action Plan for Children Affected by War was signed by the Government, UNICEF and the LTTE in 2003 in the aftermath of the 2002 Cease-Fire Agreement (CFA).

This included a clear commitment by the LTTE to stop child recruitment while collaborating with the Tamil Rehabilitation Organisation (TRO) and UNICEF to provide rehabilitation services for such children.

Three transit centres for child soldiers were planned to be established in Killinochchi, Trincomalee and Batticaloa costing US $ 1 million for children due to be released by the LTTE.

However, though resources were made available to the TRO by UNICEF, the three centres did not function, and children were not released as promised to UNICEF by the LTTE.

Since the signing of the CFA, as of March 31, 2008, UNICEF has recorded in its database 6,259 cases of child recruitment by the LTTE. Out of this total, 3,784 were boys, 2,475 girls, and 2,047 were regarded as released children.

There were 1,429 children recruited who were 18 years, but who had reached 18 years as of March 2008. Those under 18 years were 168.

UNICEF has also recorded underage recruits by the Karuna faction, which is a break-away group of the LTTE in the East. The total known to UNICEF is 463. Outstanding cases under 18 years are 131 with 66 recruited under 18 years but are now above that age.

The LTTE has been identified as a party that recruits or uses children in situations of armed conflict in the Report to the UN Secretary-General (UNSG) on Children and Armed Conflict dated 9 February 2005, and in further reports in 2006 (S/2006/1006 of 20 December 2006) and in 2007 (S/2007/758 of 21 December 2007). In 2007, the Karuna faction of the LTTE was also included as a party responsible for child recruitment.

The UNSG in a report issued in 2005 highlighted LTTE’s continued use and recruitment of children following the signing of the CFA in 2002. This reached a peak in 2004 when there were over 1,000 cases of recruitment and re-recruitment reported by parents to UNICEF. Increasing number of girls was a new feature. Most of the recruitment occurred in the Eastern Province.

The report indicated that as of end 2006, out of a total of 5,794 cases, 1,598 remained with the LTTE. The report also indicated an overlap of 37% between children recorded by UNICEF and children, who were released, ran away or returned home.

This suggests that the UNICEF figures reported approximately one third of the total cases of recruitment.

Higher levels of recruitment were reported from Kilinochchi with more girls being recruited from Mullativu.

Disturbing
A disturbing feature reported was the release of children through the so called ‘North-East Secretariat on Human Rights’ to an ‘Educational Skills Development Centre’, both of which are run by the LTTE. Children were placed in this facility without parental consent. No independent verification was possible. As a perpetrator, the LTTE’s control of the centre is highly questionable. During this period, the LTTE had conducted systematic programmes on civil defence training.

UNICEF reported that children were also involved in such programmes and much of them were conducted during school hours, while school principals and teachers were helpless.

According to the cumulative statistics of the Sri Lanka Monitoring Mission (SLMM) when it was operational, out of 3,830 ceasefire (ruled) violations by the LTTE during the period 22 February 2002 to 30 April 2007, 1,743 violations were related to child recruitment. This amounts to 45.51% of LTTE’s total ceasefire (ruled) violations during that period.

The strategies adopted by the LTTE and the Karuna Group to recruit children to their cadres are manifold.

Children are not only forcibly recruited, but are coerced into becoming combatants and committing grave acts of violence. Such children are too young to resist, and are easily manipulated by adults who draw them into such violent acts.

Government’s commitment
Despite atrocities committed against children in the uncleared areas in the north, the Government’s commitment to the welfare of the children has been commendable.

The Government has continued to provide free healthcare and education not only in the war torn areas but islandwide. These welfare programmes like poverty alleviation programmes have benefited children without any discrimination.

Though the number of abuse cases is on the increase, it is noteworthy to mention that there are agencies and institutions that are fully prepared to accommodate complaints and provide necessary treatment, a thing the country never saw in the past.

However, these main social benefits are seriously eroded when children are used in armed conflict and suffer death, maiming, abuse and exploitation.

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What’s in the UNCRC?
It is the most comprehensive of the UN human rights treaties. It covers civil and political rights, economic, social and cultural rights, as well as aspects of humanitarian law. The basic premise of the Convention is that children (all human beings below the age of 18) are born with fundamental freedoms and the inherent rights of all human beings.

The UNCRC creates a number of rights that are unique in international law and specific to children, including the right to know and be guided and cared for by one’s parents (article 7.1), to have one’s emerging capacities taken into consideration, to have their interests afforded the status of a primary consideration in any decision that may affect them, to the maximum available resources for their survival and their development and, crucially, the right to be heard in any decisions that might affect them (art.12).

Also of fundamental importance to the understanding of the rights contained in the UNCRC is the recognition of the “evolving capacities” of the child (art. 5). The UNCRC was the first human rights treaty to recognise the fundamental importance of children’s developing maturity. The concept of evolving capacities also permeates the entire Convention. The principle is specifically mentioned in relation to the right to be heard, as well as other articles, and is also very closely connected to the principle of all actions to be taken in the best interests of the child.

Birth of a Human Rights Convention
In 1978 the Polish Government had submitted a draft convention on the Rights of the Child to the UN Commission on Human Rights hoping to see it adopted during 1979, the UN’s International Year of the Child. In 1979 a working group was set up by the Commission to consider the question of the UN Convention on the Rights of the Child. The CRC took ten years to draft, with the participation of governments from developed and developing countries, the UN agencies and NGOs.

The UNCRC has two Optional Protocols both adopted by the General Assembly on 25 May 2000: Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) and Optional Protocol on the Involvement of Children in Armed Conflict (OPAC). The Optional Protocols add to the CRC and strengthen the rights of the child in their specific areas.

CRC and the State
The primary duty bearer under any human rights treaty is the State. The same applies to the CRC. Each of the articles in the Convention places some sort of obligation on the State, using language such as “shall undertake to”, “shall recognise”, “shall ensure” etc. Art 4 sets out the state’s overarching obligations, stating that they “shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.”

Who else is responsible?
The State is not the only duty bearer. parents and carers, civil society, the judiciary, the media, UN agencies, local and international NGOs and others all have duties to promote and protect the rights of the child.

Reporting on children’s rights
The UNCRC sets out the periodic reporting process to assess the implementation of the UNCRC.

Governments must prepare reports on children’s rights in their country and make the reports widely available to the public in their countries (Art 44). NGOs can also prepare their own reports. It is the main chance to involve all of these stakeholders in a constructive and co-operative dialogue to improve the situation for children in each country. In order to manage this process and make recommendations, the UN Committee on the Rights of the Child was established under Art 43.1.

This Convention is also the only international human rights treaty that expressly gives non-governmental organisations (NGOs) a role in monitoring its implementation (under Article 45a)

Sri Lanka and UNCRC
Sri Lanka ratified the UNCRC in July 1991 and drafted Children’s Charter in accordance with the UNCRC principles.

Sri Lanka submitted periodic reports to the UN Committee in 1994, 2000, and most recently, in October 2008. Sri Lanka also ratified the Optional Protocol on Involvement of Children in Armed Conflict in 2000 and submitted the initial report in June 2008.

The Government has adopted various general measures conducive to the fulfilment of children’s rights in Sri Lanka, including developing and implementing National Plans of Action for Children, amending the Penal Code for protection of children from abuse and exploitation, and creating the Ministry of Child Development and Women’s Empowerment.

(By courtesy – Save the Children)

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