CRC/C/OPAC/LKA/CO/1
Convention on the Rights of the Child
Distr.: General
1 October 2010
Original: English
Committee on the Rights of the Child
Fifty-fifth session
13 September – 1 October 2010
Consideration of reports submitted by States parties under article 8 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict
Concluding observations:
Sri Lanka
1. The Committee considered the initial report of Sri Lanka (CRC/C/OPAC/LKA/1) at its 1571 meeting (See CRC/C/SR.1571), held on 24 September 2010, and adopted at its 1583 meeting (See CRC/C/SR.1583), held on 1 October 2010, the following concluding observations.
Introduction
2. The Committee welcomes the submission of the State party's initial report although it regrets that the report does not follow the Committee’s reporting guidelines under the Optional Protocol (CRC/C/OPAC/2). The Committee further welcomes its written replies (CRC/C/OPAC/LKA/Q/1/Add.1) to the list of issues and appreciates the constructive dialogue with a multi-sectoral delegation.
3. The Committee reminds the State party that these concluding observations should be read in conjunction with its concluding observations adopted on the State party’s combined third and fourth periodic report (CRC/C/LKA/CO/3-4) adopted on 1 October 2010.
I. Positive aspects
4. The Committee notes as positive that:
(a) The State party has made a declaration upon ratification of the Protocol stating 18 years as the minimum age for voluntary recruitment to the armed forces;
(b) There is no conscription in the State party and that the minimum age of voluntary recruitment is 18 years without exception; and that
(c) The penal code was amended (Amendment Act No. 16 of 1st January 2006) to penalize the engagement or recruitment of children for use in armed conflicts.
5. The Committee also welcomes the ratification of ILO Convention No. 182 on 1st March 2001.
II. General measures of implementation
Independent monitoring
6. The Committee notes with concern that the National Human Rights Commission lacks independence and has not been provided with the necessary human, financial and technical resources to carry out its responsibilities effectively. The Committee further regrets that its recommendation to the State party to consider the establishment of a bureau for children’s rights within the Commission to enhance access for children has not been followed up.
7. The Committee urges the State party to take the necessary measures to ensure the independence of the National Human Rights Commission in conformity with the Paris Principles. Drawing attention to its General Comment No. 2 on the role of independent national institutions in the promotion and protection of the rights of the child (CRC/GC/2002/2), the Committee also calls upon the State party to ensure that the National Human Rights Commission is provided with the necessary human, financial and technical resources to carry out its responsibilities effectively. It further urges the State party to consider establishing either a bureau for children’s rights within the Commission or an Ombudsman for Children. The State party should ensure that the Bureau or the Ombudsman for Children has adequate human, technical and financial resources and is accessible to all children and has the power to receive, investigate and address complaints by children, in particular those affected by conflict.
Dissemination and awareness
8. The Committee is concerned about the very limited measures undertaken by the State party to disseminate the Optional Protocol to the public at large and children in particular.
9. In light of article 6, paragraph 2, of the Optional Protocol, the Committee recommends that the State party ensure that the principles and provisions of the Optional Protocol are widely disseminated to the general public and among children.
Training
10. The Committee is concerned that relevant professional categories, in particular the military, the police and other security personnel and those working for the administration of justice, do not receive adequate training on the provisions of the Optional Protocol as reflected by the lack of information provided by the State party in this regard.
11. The Committee recommends that the State party strengthen human rights training of the members of the armed forces, the police and other security personnel and those working for the administration of justice and ensure that they receive specific training on the provisions of the Optional Protocol. Furthermore, the Committee recommends that the State party develop awareness-raising, education and training programmes on the provisions of the Optional Protocol for relevant professional groups working with children, notably law enforcement officers, social workers, medical professionals, teachers, media professionals and local and district officials. The State party is invited to provide information in that respect in its next report.
Killings of children
12. The Committee expresses serious concern that insufficient efforts have been made by the State party to investigate the death of hundreds of children during the five last months of the conflict in 2009 as a result notably of alleged shelling and aerial bombardments of civilians, hospitals, schools and humanitarian operations and deliberate deprivation of food, medical care and humanitarian assistance.
13. The Committee strongly urges the State party to ensure that prompt, independent and impartial investigations are conducted and that those responsible for the killings of children are duly prosecuted and sanctioned with appropriate penalties and that further killings of children do not take place. To this aim, the Committee urges the State party to fully cooperate with the United Nations Secretary General’s Panel on Accountability in Sri Lanka which will assist the State party’s Commission on Lessons Learnt and Reconciliation in establishing a credible and efficient accountability mechanism and in applying the international best practices in this regard.
Missing children/data
14. The Committee notes with concern that data on children in armed conflict is almost exclusively collected through a United Nations Children’s Fund (UNICEF) database established in 2003. The Committee expresses serious concern that in spite of some progress made in terms of family tracing, the whereabouts of hundreds of children who are missing have not been clarified and that many children remain unidentified due mainly to the lack of coordinated tracing structure and the obstacles met by humanitarian agencies, including those with specific expertise in family tracing and reunification to access to camps, transit, return and resettlement areas. The Committee is further concern about the absence of accurate data on children who have died as a result of the conflict and the difficulties of families to obtain death certificates.
15. The Committee urges the State party to ascertain the whereabouts of all the children whose fate remains unknown and to this aim collect accurate data on all areas covered by the protocol including children recruited and use in armed conflict, missing children, unaccompanied and separated as well as reunited children. The Committee also urges the State party to guarantee full access to the North and East of the country to international and local humanitarian agencies and partners with specific expertise in family tracing and reunification programmes. The Committee further urges the State party, on the basis of data collected, to take all the necessary measures to speed up the process of issuance of death certificates and to conduct DNA testing when necessary.
III. Prevention
Prevention of recruitment by non State forces
16. The Committee is concerned about the lack of information provided by the State party on measures to prevent recruitment and use of children in armed conflict. The Committee is also concerned that information from the Special Envoy of the Special Representative for Children and Armed Conflict’s latest report about re-recruitment of children in Ampara district by a former TMVP commander could not be verified and that the State party’s position that the need for such recruitments no longer exists may impede the adoption of concrete measures to prevent and inquire into possible re-recruitment. The Committee also notes that prevention efforts are hampered by the lack of child protection and child welfare services in the war-affected areas, only a limited number of qualified officers having been deployed, equipped and funded to deal with thousands of highly vulnerable children.
17. In light of article 4 of the Protocol, the Committee urges the State party to take all feasible measures to eliminate the root causes and prevent recruitment and use of persons below the age of 18 years by non-State armed groups. The Committee encourages the State party to promptly establish the Village-level Committees for the purpose of surveillance and prevention of recruitment of children for armed conflict as stated in its report. The Committee further urges the State party to include the welfare and protection of children as a priority in their reconstruction plans for the North and East and re-establish as a matter of urgency child protection and child welfare services in war-affected areas.
Human rights and peace education
18. While noting that an assessment of the education sector needs in the conflict-affected areas which also covered peace education was conducted in 2003, the Committee expresses concern at the absence of information on specific human rights education provided by the State party in the curricula of all schools at all levels, including in relation to peace education.
19. Considering that the human rights and peace education are essential to enhance a culture of peace and promote harmonious relationships which guarantee the culture of non-violence among children and the larger society, the Committee recommends that the State party take prompt and concrete measures to ensure the provision of human rights education and, in particular, peace education, for all children in school and train teachers and other professionals to help students to resolve conflict through conflict resolution and peer mediation training.
Landmines
20. The Committee notes that in spite of efforts made by the State party in relation to demining and mine risk education, children have been and remain at high risk of being killed and maimed by anti-personnel landmines and unexploded ordinance. The Committee also expresses concern that not all internally displaced families have received mine risk education before their return to their area of origin and that mine victim assistance remains underdeveloped.
21. The Committee recommends that State party:
(a) Continue and strengthen mine-awareness campaigns and demining activities, in particular by strengthening funding for demining activities, in cooperation with Humanitarian Demining Units and I/NGO demining operators;
(b) Consider establishing special rehabilitation programmes for children affected by the explosion of mines and other consequences of the armed conflict and ensure that all affected children have access to such programmes, including through increased allocation of resources to centres for social work and by increasing the coverage of the system of personal disability benefits;
(c) Ensure that mine risk education is provided to internally displaced families prior to, during and after their return and that educational child-friendly measures are implemented, in coordination with civil society, especially at the municipal level in rural areas where landmine risks have been identified or are suspected; and
(d) Consider acceding to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.
IV. Prohibition and related matters
Legislation
22. While welcoming the criminalization of the engagement and recruitment of children for use in armed conflict by Penal Code (Amendment) Act No. 16 of 1 January 2006, the Committee expresses serious concern that there has been so far no prosecution under the new law and that all those who recruited and used children continue to enjoy impunity. The Committee notes with particular concern the slow progress in investigating the whereabouts of the remaining cases of children associated with the TMVP and the allegations of government officials’ complicity in the recruitment of children by the Karuna Group.
23. The Committee urges the State party to clear as a matter of priority the whereabouts of the remaining cases of children associated with the TMVP as already recommended by the Special Envoy of the Special Representative for Children & Armed Conflict in its December 2009 report. The Committee also urges the State party to take more concrete steps to implement the recommendation of the Secretary General (S/2009/325 para. 58c) to ensure effective implementation of its “zero tolerance” position on child recruitment, including systematic and vigorous investigations for every reported case, followed by prosecutions and convictions of responsible perpetrators and to complete investigation undertaken by the inter-ministerial committee on government official’s complicity in the abduction and recruitment of children.
Military occupation of schools
24. The Committee expresses serious concern that some schools remain occupied by the State party armed forces or used to host “separatees”. The Committee is also concerned about the deteriorated state of school infrastructure once the armed forces leave them.
25. The Committee also call upon the State party to:
(a) Immediately discontinue military occupation and use of the schools and strictly ensure compliance with humanitarian law and the principle of distinction and to cease utilizing the primary section of V/Tamil MV school and the Omantahi Central College in Varuniya to host separatees; and
(b) Ensure that school infrastructures damaged as a result of military occupation are promptly and fully restored.
Military schools activities
26. The Committee welcomes the State party’s assertion that the Ministry of Education oversees the administration, curricula and functioning of the Cadet Corps. However, the Committee expresses concern that the training of the Cadet Corps includes the use of firearms during marching exercises.
27. The Committee urges the State party to ensure that training of the Cadet Corps does not include military activities. The Committee also calls upon the State party to prohibit the handling and use of firearms for all children in line with the spirit of the Optional Protocol.
V. Protection, recovery and reintegration
Restrictions of humanitarian access for children
28. The Committee expresses deep concern about orders issued in June 2010 from the Ministry of Defence to all commanders of the Security Forces to curtail humanitarian access for virtually all United Nations agencies, international organizations and international and national NGOs at a time when internally displaced families, especially families remaining in camps, are facing food shortage and require urgent assistance.
29. The Committee reminds the State party that international humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced. It therefore calls upon the State party to immediately lift unnecessary restrictions on the activities of humanitarian organizations and ensure unimpeded delivery of assistance to internally displaced families and children requiring urgent assistance.
Protection of Victims of Crime and Witnesses
30. The Committee notes with concern that little progress having been made since 2008 towards the adoption of the Assistance and Protection to Victims of Crime and Witnesses Bill, there is currently no protection for witness protection in the State party which hampers effective investigations into cases of recruitment and use of children in armed conflict. The Committee also expresses concern about cases of persons reporting child recruitment and use in armed conflict who have been subjected to reprisals, intimidation and threats. The Committee is also concerned that the draft bill contains several shortcomings and contains insufficient provisions to fully take into consideration children specific needs.
31. The Committee urges the State party to carefully review the shortcomings of the witness protection law which could undermine the effective protection of child victims or witnesses in order for the law to comply with internationally accepted norms and best practices relating to the protection of victims of crime and witnesses and to expedite its adoption. The Committee also calls upon the State party to ensure that the law fully takes into account children specific needs in terms of threat assessment, protection and assistance. The Committee further recommends that a witness protection programme be promptly implemented and well resourced so as notably for the protection division of the witness protection program to include staff specifically trained and experienced in working with children.
Detention of children under Emergency Regulations
32. The Committee expresses deep concern that children suspected of security-related offenses have and may still be detained under the Emergency (Miscellaneous Provisions and Powers) Regulation No 1. of 2005 and the Prevention of Terrorism Act. The Committee is seriously concerned these children may be detained in unpublicized places of detention for up to one year, and denied access to a lawyer, family members, a judge or any other competent authority to challenge the legitimacy of their detention.
33. The Committee urges the State party to make further and immediate investigations to ensure that children are no longer detained under security or anti-terrorism legislations. The Committee also calls upon the State party to repeal without delay the emergency regulations which can be used to detain children outside of the regular justice system.
34. The Committee notes the adoption of Emergency Regulation No. 1580/5 of 2008 relating to Child Friendly Rehabilitation and Reintegration Procedures of the Child Surrendees /Arrested which introduces judicial intervention in the rehabilitation and reintegration process. The Committee is however concerned that this process does not comply with the international juvenile justice standards, in particular as concern notably children’s rights to be assisted by a legal counsel and to challenge the lawfulness of their placement in a protective accommodation centre and has therefore not received support from UN agencies.
35. The Committee urges the State party to review the legal framework applicable to the rehabilitation and reintegration of children and ensure that children:
(a) Have right to be heard and be provided with a copy of the social inquiry report and informed about the evidence examined by the magistrates;
(b) Are allowed the assistance of a legal counsel; and
(c) Can challenge the lawfulness of her/his detention before a higher authority and provide additional evidence in their favour.
Rehabilitation centers
36. The Committee welcomes the information given by the State party that all 667 children who underwent rehabilitation, some of them having been held in rehabilitation centres and separated from their families for lengthy period of time, have now been released and reunited with their families. The Committee however expresses concern about the involvement of army personnel in the running the rehabilitation programmes.
37. The Committee urges the State party to promptly establish family and community-based rehabilitation programmes as foreseen in Emergency Regulation 1580/5 and to use centre based rehabilitation only as a last resort. The Committee also urges the State party to ensure that rehabilitation centres are managed and operated in compliance with the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups and in particular that army personnel are no longer involved in the running of the centres.
Criminal liability of children formerly associated with armed groups
38. The Committee notes as positive the assurances given by the State party to the Committee that children formerly associated with armed conflict, including those detained on security and terrorism-related charges will never face prosecution. The Committee expresses concern that in the absence of any official document clarifying the criminal liability of children formerly associated with armed groups, prosecution of children could still be envisaged in application of emergency Regulation 1462/8 Of September 2006 and other security and anti-terrorism laws which equally apply to adults and children.
39. The Committee urges the State party consider formalizing its commitment not to prosecute children and involved in armed conflict by issuing without delay a directive to all judicial authorities clearly stating that children should not be prosecuted for their association with any armed group.
High Security Zones
40. While noting the explanation given during the dialogue with the State party’s delegation that High Security Zones (HSZs) are maintained for conducting demining activities in war-affected areas, the Committee expresses concern that thousands of families and their children remain in displacement, some of them in transit camps, with host families or without access to their lands for long period of time due to the establishment of these HSZs, notably in Shanthapuram and Indupuram (Mullativu and Killinochchi districts) in Silvathurai and Mullikulam and in Sampur, Trincomalee district and other ad hoc sites.
41. Drawing attention to the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, the Committee reminds the State party that all refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, and that the State party shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The Committee therefore calls upon the State party to speed up the demining process of war affected areas so as to promptly dismantle High Security Zones and ensure that families can return to their area of origin.
Psychosocial support
42. The Committee notes as positive the establishment of a sub-committee with a multi-disciplinary membership under the supervision of the Chairman/NCPA to assess former child combatants in depth, and also to provide psychosocial support and the development of Guidelines on Protective care, Rehabilitation and Reintegration of Child Combatants. However, the Committee expresses concern at the slow progress in providing thousands of former child soldiers with the psycho-social support they urgently need and that mental health services remain insufficient.
43. The Committee urges the State party to strengthen available psycho-social assistance for children and recruit more mental health workers and other specialized professional to work with children victims of conflict. The Committee encourages the State party to seek technical assistance in this domain.
Small arms
44. While noting that the State party is committed to the United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects (UN PoA) and has established a national commission on small arms in 2004, the Committee expresses concern that the proliferation of illicit small arms in the State party continues to represent a major threat to children safety and security.
45. The Committee urges the State party to urgently set up a policy to eradicate and control the availability of arms, including small arms, and ensure that their sale occurs only under strict governmental control.
VI. International assistance and cooperation
46. In light of Security Council Resolution S/RES/1882 of 2009, the Committee encourages the State party to continue its cooperation with United Nations agencies and programmes, in particular OHCHR and UNICEF, and non-governmental organizations and to further strengthen its cooperation with the Special Representative of the Secretary-General for Children and Armed Conflict, in the development and implementation of measures aimed at an adequate application of the Optional Protocol.
47. The Committee recommends that the State party ratify the Rome Statute of the International Criminal Court.
VII. Follow up and dissemination
48. The Committee recommends that the State party take all appropriate measures to ensure full implementation of the present recommendations, inter alia by transmitting them to the Ministry of Defense, the Supreme Court, members of the cabinet and parliament and to all relevant national and local authorities, for appropriate consideration and further action.
49. The Committee recommends that the initial report and written replies submitted by the State party and the related concluding observations adopted by the Committee be made widely available to the public at large, including through the Internet (but not exclusively), civil society organizations, youth groups, professional groups, including social workers, the media and children, in order to generate debate and awareness of the Optional Protocol, its implementation and monitoring.
VIII. Next report
50. In accordance with article 8, paragraph 2, the Committee requests the State party to include further information on the implementation of the Protocol and these concluding observations in its next periodic report under the Convention on the Rights of the Child, due on 1 October 2015. The Committee further requests the State party to submit the initial report to OPSC, which was due on 22 October 2008, at the earliest possible.