Protecting children in conflict situations

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By Suhas Chakma
From 18th to 20th May 2012, a team of the National Commission for Protection of Child Rights (NCPCR) and Asian Centre for Human Rights (ACHR) will be visiting Manipur for investigation into alleged encounter deaths of children in the State. This is one of the most significant steps taken by the NCPCR under the leadership of Chairperson Dr Shanta Sinha to address the gaps in the implementation of the juvenile justice in the areas afflicted by internal armed conflicts.

Manipur is emblematic of the absence of juvenile justice in the conflict affected areas. The Armed Forces Special Powers Act (AFSPA) remains in force in the State but when the AFSPA was enacted in 1958, there were no juvenile justice laws. Consequently, the AFSPA does not differentiate between children and adults. For effective purposes, the armed forces treat the juveniles as adult. In the entire discourse on the AFSPA, the need for special protection of children has not been addressed adequately.

It is universally accepted that on matters relating to children, specific laws relating to children shall prevail. This overriding principle is set out in article 3(1) of the United Nations Convention on the Rights of the Child which provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

Indian judiciary too has recognised the supremacy of the Juvenile Justice (Protection and Care of Children) Act, 2000 over all other Acts including on the Prevention of Terrorism Act of 2002. The Madras High Court in the case of the arrest of G. Prabhakaran (15 years) under the Prevention of Terrorism Act, 2002 upheld the supremacy of the Juvenile Justice Act. The Madras High Court while dismissing the trial of Prabhakaran under the POTA stated “The rights of a child are an integral part of human rights, yet the protagonists of human rights hardly ever focus their attention on the exploitation and abuse of the rights of children. ….The POTA court, in the present case, has exceeded its jurisdiction and trespassed into another territory and the mischief has to be undone.’’

In Manipur, children have been consistently arrested, detained and tortured. In many cases, they have also become victims of extrajudicial executions or encounter killings. ACHR has regularly been intervening in a number of cases and it shares two specific cases which have been concluded.

On 13 July 2003, three children namely Kamkholal Haokip (17 years) and his younger brother Sumkhosat Haokip and Satkholun Haokip (15 years) were killed by the Assam Rifles personnel in an alleged encounter at Sipijang area under Senapati district. The Assam Rifles claimed that all the three children were hardcore members of the Kuki National Front. However, the villagers stated that the Assam Rifles had an encounter with the militants following which they cordoned off the four villages – Gelbung, G-Solung, Matjong Thangbu and L Khumnom and called out about 50 youths from their respective homes at about 3.30 am. All the 50 youths were taken to the playground at Gelbung village. Later on at about 6.30 am, three children were picked out from the group while the rest were told to go home. As the rest were on their way home, they heard loud gunfire shots. Later the Assam Rifles personnel called out another 12 youths from the villages and told them to carry away the bodies of the three youths which bore multiple bullet injuries. Kamkholal Haokip was a Class X student of Salem Higher Secondary School while Sumkhosat and Satkholun were employed in a hotel at Imphal. The National Human Rights Commission (NHRC) intervened following a complaint filed by ACHR but let off the Assam Rifles solely based on a “No Objection Certificate” forcibly taken from the villagers certifying that they were not harassed by the Assam Rifles!

However, the Assam Rifles could not hide with respect to alleged encounter killing of Saikhom Samungou (20 years), Sanasam Ngongo Meitei (15 years) and Thiyam Sunder (23 years) on 11 January 2005 under Yairipok Police Station in Thoubal district.  A Press Information Bureau (PIB) Defence Wing handout claimed that all of them were cadres of the banned United National Liberation Front. However, the villagers claimed that Saikhom Samungou and Sanasam Ngongo Meitei were students. The police in its report to the NHRC following a complaint from ACHR stated that while Thiyam Sunder was a hardcore member of the UNLF, Sanasam Ngongo Meitei and Saikhom Samungou Singh were “innocent civilians”. The Ministry of Defence also admitted that Meitei and Singh were civilians but it continued to refer all the three as “militants” and “terrorists” in its report dated 13 June 2006 to the NHRC. The NHRC in its order dated 31 August 2007 directed to pay Rs 100,000 to each of the next of kin of the deceased but under what circumstances Meitei, a juvenile, was killed remained unexplained.

In all the conflict affected areas, arrest, detention, torture, sexual abuse and encounter killings are rampant. There is little knowledge about the Juvenile Justice (Protection and Care of Children) Act, 2000 amongst the law enforcement personnel in conflict situations. The institutions defined under the Juvenile Justice (Protection and Care of Children) Act, 2000 such as Juvenile Justice Boards, Child Welfare Committees, Juveniles Homes, Juvenile Special Police Units etc do not exist in the disturbed areas/conflict situations. And large parts of the country are indeed affected by armed conflicts. According to the Ministry of Home Affairs, 21 out of 28 States are affected by internal armed conflicts. These includes Jammu and Kashmir, seven northeastern States and 13 Naxalite affected States of Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Tamil Nadu, Uttar Pradesh, Uttarakhand and West Bengal.

In order to address the gaps for administration of juvenile justice in conflict affected areas, there is a need to adopt “Standard Operating Procedures” that the security forces must comply. Further, the institutions of juvenile justice ought to be made functional. Otherwise, children living in conflict affected areas will be deprived of what is provided to children in rest of the country.

 

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