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Underage Recruitment & the Law

by Tamil National Forum, tamilnation.org, July 29, 2006

From: A Concerned Tamil, USA, [in a communication to a visitor of this website] 29 July 2006

Re International Federation of Tamils letter to UNICEF  - I do not know how the IFT can say that  " Enlisting children under the age of 18 years by armed groups is not a breach of the Optional Protocol (and not by any means a ‘war crime’ though armed groups may have a 'moral obligation' to avoid doing so )" when Article 4 of the Optional Protocol of the Convention on the Rights of the Child reads:  "4(1). 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 18 years."

I think the situation has changed since 2000 when the ICRC made its comment about the Optional Protocol. The International Criminal Court has defined such recruitment as a war crime and has recently indicted the leaders of the Ugandan Lord's Resistance Army for the crime of recruiting/abducting child soldiers.

The argument that the LTTE can use is that it is not purely an armed group and has a rear area where underage recruits can be protected from direct combat. I think that they are also using the argument that there is a ceasefire, so there is no combat, and so underage recruits cannot be exposed to combat. They also are arguing that the Optional Protocol is not yet customary international law, but I think they are on shaky ground here.

Comment by tamilnation.org  Instead of dismissing the view of the ICRC that the 2002 Optional Protocol created a ‘moral’ obligation as something outdated, (after all the Optional Protocol has not been amended since then) it may be more helpful if we seek to understand the reasoning of the ICRC. One would imagine that the ICRC was well aware that Article 4 Optional Protocol did say 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 18 years.” 

Why then did the ICRC say it was only a ‘moral obligation’?  The ICRC said so because the Optional Protocol was careful to cast the obligation for enforcement on the State and not on the International Criminal Court which had been set up by the Rome Statute of 1998 - and which Statute has yet to be ratified by the US. The result is that Article 4 of the Optional Protocol is not ‘directly enforceable’. It is this which led ICRC to conclude -

"...Although Article 4 also provides for criminal prosecution under domestic law, this is likely to be of limited effect, because those who take up arms against the lawful Government of a country already expose themselves to the most severe penalties of domestic law, and because the capacity of a Government to enforce its laws is often very limited in situations of non-international armed conflicts..."

There is nothing to suggest that this position has changed since 2002.  The statement that

"the International Criminal Court has defined such recruitment as a war crime and has recently indicted the leaders of the Ugandan Lord's Resistance Army for the crime of recruiting/abducting child soldiers."

is incorrect. Nowhere has the ICC ‘defined’ the enlisting of under18s as a war crime. In any case, Courts do not define or create law – they interpret. Courts cannot amend the 2002 Optional Protocol and somehow render Article 4 ‘directly applicable’. Moreover, in the case of the Ugandan Lord’s Resistance Army, the accused Joseph Kony, Vincent Otti, Okot Odhiambo, were charged with crimes against humanity and war crimes and in relation to children, the charge was laid under Article 8(2)(e)(vi) of the 1998 Rome Statute which reads 

“(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” 

The warrant issued by the ICC  makes no reference to the 2002 Optional Protocol. The juxtaposition of the statement “the International Criminal Court has defined such recruitment as a war crime” with the statement that it  “has recently indicted the leaders of the Ugandan Lord's Resistance Army for the crime of recruiting/abducting child soldiers” is unfortunate as it suggests that the Ugandan warrants had something to do with under 18s and the interpretation of the 2002 Optional Protocol.  

Actually, the ICC warrant in the Uganda case is based on what the International Criminal Court said in the Sierra Leone case – and that was that recruitment of under 15s was a breach of customary international law and was a war crime.  The Sierra Leone court did not hold that Article 4 of the 2002 Optional Protocol codified customary international law. A failure to draw the distinction between under 15s and under 18s will not further understanding of the child soldier issue.

To repeat: the reality is that no Court has ruled that article 4 of the 2002 Optional Protocol is ‘customary international law’ – and, indeed, the fact that the Protocol is not directly applicable, the fact that the Rome Statute has not been ratified by the US, the fact that the Optional Protocol applies a double standard, and the fact that the Optional Protocol remains 'Optional' even for states (who may or may not sign up), may well militate against such an eventuality. And it  is perhaps all this which led the ICRC to conclude that “it is uncertain whether non-state actors will feel bound by a norm which is different from that imposed on States, and thus whether it will be respected”.  

But, ofcourse, all this will not prevent States and their agencies (and career diplomats, concerned to advance their careers in a state dominated environment) to do all that they can to promote and enforce the double standard (just as they do in the case of state ‘terrorism’ and non state ‘terrorism’). States would like to continue to recruit under 18s themselves, whilst crying ‘war crime’ when armed groups recruit under 18s. States would like to offer 16 year olds in  schools ‘ a career’ in the armed forces, produce video games  (given free to 16 year olds and freely seen by 12 year olds)  and in this way encourage the child recruitment process and at the same shout ‘child soldiers’ where under 18 children without schools to attend, and in many cases without families to look after them, join an armed group resisting alien rule.  Here, we may need to recognise the truth of something which Dr.Colin Harvey pointed out in 2000,

"International law is political. There is no escape from contestation. Hard lessons indeed for lawyers who wish to escape the indeterminate nature of the political. For those willing to endorse this the opportunities are great. The focus then shifts to inter-disciplinarity and the horizontal networks which function in practice in ways rendered invisible by many standard accounts of law. This of course has important implications for how we conceive of law's role in ethnic conflict. We must abandon the myth that with law we enter the secure, stable and determinate. In reality we are simply engaged in another discursive political practice about how we should live..."

To repeat: 'in reality we are simply engaged in another discursive political practice about how we should live.' And this is all the more reason why we may need to resist - and resist with vigour - the immorality of the double standard in respect of under 18 recruitment.  A double standard does not treat like equally – and cannot be (and, indeed, should not be allowed to become) an international norm because apart from anything else, a double standard offends against the fundamental principle of equality before the law.  All law is rooted in common sense and when common sense is denied, we do not have the rule of law - we  have political opportunism which sheds crocodile tears for the welfare of children. And to say that is not to stand on shaky ground, but on something more solid – truth and justice. 

One further matter also calls for a response and that is the statement that -  

“The argument the LTTE can use is that it is not purely an armed group and has a rear area where underage recruits can be protected from direct combat.  I think they are also using the argument that there is a ceasefire, so there is no combat, so underage recruits cannot be exposed to combat.” 

We cannot, ofcourse, speak for the LTTE. Neither does our remit extend to lending it support. But reason suggests that the LTTE is a politico military ‘organisation' enjoying a monopoly of coercive power within internationally recognized lines of control. This is a characteristic which it shares with states. A state enjoys a monopoly of coercive power within its territorial boundaries - and, indeed, this is the defining characteristic of a state.

Again, states have armed forces, and they  also have administrative services. In some cases like Pakistan, the chief of the army is the political head. In other cases like the USA, the political head is the commander-in-chief of the armed forces. In both cases the administrative services may include police, training schools, judiciary etc. The LTTE administers a defacto state within internationally recognized lines of control. The state is de facto because it has not been recognized by other states but the lines of control are de jure because they have been set out in an internationally recognized ceasefire agreement. This de facto state is no ‘rear area’ of an ‘armed group’.  The so called 'rear area' is very much the front area of a defacto state with de jure lines of control. The Australian M.P. Ms Virginia Judge was not referring to some ‘rear area of an armed group’ when she declared on 15 September 2005 (after a visit to Tamil Eelam) –

“…I observed that in a remarkable three year period the Tamils developed a virtual state within the north and north-east of Sri Lanka. I visited their judiciary and court, school of law, police station, police academy, medical and technical colleges and small industries, a community bank plus a children's home housing 278 children left orphaned by the war and the recent tsunami. The Tamil Rehabilitation Organisation (TRO) runs a variety of development, relief and reconstruction projects as well as assisting several non-government organisations with their projects. All this is a tribute to the spirit and resilience of the Tamil people…”

And it was to this political reality  that Sri Lanka President Kumaratunge alluded in April 2003 when she declared that the "LTTE has set up a separate state". And it was to this political reality that Professor Kristian Stokke referred  in Building the Tamil Eelam State: Emerging State Institutions and Forms of Governance in LTTE-controlled Areas in Sri Lanka, 2006  -

"Sri Lanka’s third Eelam War created a political-territorial division of the island with a resultant dual state structure in the North-East. In the context of the 2002 Ceasefire Agreement and based on earlier institutional experiments, the LTTE is currently engaged in a comprehensive process of state building within the areas they control."...

Given this political reality on the ground, reason suggests that recruitment by the LTTE  may not necessarily mean recruitment to its armed forces. Such recruitment may be to its police force, training schools and so on. And it is this which many reports (including those by UNICEF)  have failed to address. There is also a further interesting question which may need to addressed - and that is whether Article 4 of the Optional Protocol which does not apply to a state but applies to an 'armed group', would apply to a defacto state with dejure lines of control.

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