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Extraordinary Legislation in Armed Conflict
Situations: 2
By Prof Naorem Sanajaoba
Please follow the international law and the world will be with you. Regarding Geneva Conventions and the two protocols, Protocol 1 article 1(4) is about Right to Self-determination. In the first part of the Protocol 1, armed dissident groups are included. It is not that the Right to Self-Determination is an unrecognized term in the international armed conflict. Regarding implementation of the Geneva Conventions, particularly the provisions of common Article 3 and Protocol 2,these may have to be followed by the non-state entities to the last word. The compliance will enhance their credibility and then, it will make the innocent people quite happy and safe in the contact zones.
Thirdly, regarding child soldiers and insurgents killed by the security forces in extra judicial execution in quite common in Manipur, Tripura, Nagaland, Assam and Meghalaya and many parts of India including Kashmir and Punjab. In this context, I would like to remind everyone in the government and the non-state entity groups that the protection of the child is quite clearly given in Article 77 of Additional Protocol 1 of the Geneva Conventions.
Details may take time, so I won't read it out.
Regarding the Protocol 2, an important provision is given regarding the humane treatment of children. That is quite clearly given specially in Article 4 clause 3. And here, children who have not attained the age of 15 will neither be recruited in the armed forces or groups nor should they be allowed to take part in hostilities. Above all, this is for the state parties especially, the State armed forces commanders in the North East, northern India and elsewhere. For them, please remember whenever they conduct transactions in the North East and elsewhere Protocol 2 Article 6 clause 4 have to be complied with. Let them listen. Let them read it a thousand times and comply with laws.
The death penalty shall not be pronounced to child soldiers or insurgents who were below the age of 18 years at the time of committing offence and shall not be carried out on pregnant women and mothers of young children. This is the law. So, Armed Forces in any part of South Asia cannot execute child below the age of 18 even if they have committed wrong. They cannot touch the pregnant women or the mothers of young children. So, responsible armed forces commanders of any country elsewhere in the world, particularly in South Asia should remind their forces that, combatants/insurgents (not terrorist of course) who are below 18 years cannot be executed either in fake encounter or in their custody; or even after trial they cannot be executed or given life imprisonment and let this be implemented by the President of India by giving the order as the Supreme Commander of India that child who are below the age of 18 cannot be executed even if found guilty with heinous crimes nor they be life imprisoned. Remember if the State is a symbol of injustice, then that is the beginning of the fall of the State. Nobody can imagine a State as a symbol or embodiment of injustice. Listen, State can erode.
Not only the Roman Empire, so many great empires have fallen to debris. If you follow the law, the State will be honor. No child, no combatant, no guerilla either in fake encounter, disappearance nor after trial could be given capital punishment or execution in any form. I think this will be new for the legitimate political action groups. This should be noted.
Now, this is not enough. Here, especially for the child, in addition to the binding treaties like the Optional Protocol to the Convention on the Rights of the Child note that there are some international rules, which have to supplement activity for the best interest of the child.
1. Beijing Rules: which develop and extend those articles of the Convention on the Rights of the Child, especially in the field of arrest or detention, investigation, prosecution, execution, disposition and institutional and non-institutional treatment of juvenile offenders. So, please include the Beijing Rules. The Nepal Declaration or the Canada Declaration is weak. They have not borne a holistic point of view because their machinery and structure of the organization was weak. That is the problem. Shillong is one of the best places where the Beijing Rules can be reflected.
2. Both Nepal and Canada declarations or whatever declaration whatsoever, I have seen that they do not reflect the Riyadh Guidelines, specially because the Riyadh Guidelines focus the prevention of juvenile delinquency through involvement of all parts of the society, the role of the family education in the community. The child needs some help and assistance from the Riyadh Guidelines. It can be included in the Shilling declaration, I hope the drafting committee will kindly look into this proposal. This will prevent juvenile crime at any level.
3. UN rules for the protection of juvenile derived of their liberty (UNRJP). This is the third thing to be added specially in the field of pre-trial detention of juveniles. Even if pre-trial detention is unavoidable, duration should be kept to the absolute minimum and highest priority be accorded to the most expeditious proceeding of such cases. In the North-East and Kashmir and elsewhere in South-Asia, children are just simply dumped into the jail. When they come out of jail, the Government of India has baptized them into child soldiers. Does it mean that these children then join the armed groups or does it mean that they are victimized falsely after that by calling them child soldiers for recruiting innocent children as child soldiers? This is racism. They baptized our child and blame the civil society.
The North and the South block are very weak in their to look into and to reexamine their drastic colonial policy. Unless they revise their colonial policy, they have to pay heavy price and the world will remain a repentant planet. When they do not follow the rules, why do they want to prove that they are another organization in the name of the state?
4. There are the UN standard minimum rules for non-custodial measures. Especially for the arrest of a juvenile, one should be very careful so as not to convert innocent child as juvenile offenders. Then one has to also see that rights on arrest and following arrest are strictly followed in the North East and Northern India. Detention of the juveniles, say with the adults in the jail and the speedy trial and adjudication are some of the things. And above all, please see that, the use of force & firearms to juvenile is a very important thing. One cannot use force or firearm to juvenile in the northeast or elsewhere in India at random. There are guidelines and rules that could not be overlooked.
So there are UN rules, Humanitarian Rules, for the use of force and firearms to the juveniles. They have misused many of these things and it cannot be done any more. I want to bring to your notice that regarding this Right of the Child (an intervention from the Right of the Child). Justice Verma or, normally India Chief Justices do not look after International law and, they look after Constitutional law and system. So we want to supplement to his presentation of Article 38 and 39 of child convention. Article 37 of the Convention of the Rights of the Child forbids awarding death sentence to child below 18 years. J.S. Verma forgot this article 37 in his analysis of the Convention of the Rights of the Child.
Finally, I want to recommend that the Tokyo Rules are also to be included as recommendations in the Shillong declaration. With these three sets of guidelines, we may be able to provide some protection for children in armed conflict in these regions. When I speak critically of the Government of India, people may think that I supporting armed entities, at the same time, when I speak critically of the armed groups, people may say that I am holding brief for the
Government of India. This is not so. I am not on the side of Government or of the armed groups. I am in favor of strict compliance of International Humanitarian Laws in North East States and rest of India. If I am biased, yes, I am biased in favor of justice and fairness. I like you all to aim on the side of the child. We are here to speak on behalf of the children facing armed conflict situations, who need complete legal protection.
(Concluded)
(Courtesy: The Imphal Free Press)
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