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  • Shreya Sinha

CHILD SOLDIERS IN NAXAL FORCES: INDIA’S OBLIGATION UNDER INTERNATIONAL LAW

By- Aisiri Raj and Rahul Rajasekar, 3rd Year Students at, School of Law, Christ (Deemed to be University)

INTRODUCTION

The Naxal movement initially began as a reactionary uprising against the zamindari system, adopted the form of an informal militant organization as it gained momentum in the red corridor. To have a robust-skilled organization and to scale up their ranks, these outfits employ children to function as information gatherers and train them to use lethal and non-lethal weapons. About 4000 children between the ages of 10-15 are recruited to be a part of various children organizations under the Maoists, such as Balasanghatans, Child Liberation Army (CLA) across the states of Jharkhand, Orissa and Madhya Pradesh[1] and are often used as human shields by the members of these organizations during armed confrontations with the police officials. Children who attempt to leave these outfits are threatened against doing so and the fear of Naxalites prevents the parents of such children from filing police complaints.[2]


STATUS UNDER THE INTERNATIONAL LAW FOR PROTECTION OF CHILDREN

The jurisdiction of International Humanitarian Law extends to both International and Non-International Armed Conflicts under the scope of Common Article 3 of the Geneva Convention[3] that protects the rights of children who are employed as child soldiers. In order to qualify as a Non-International Armed conflict, the following are the standards for a minimum threshold of intensity in confrontations:

  1. That the Government is obliged to use military force rather than the ordinary police force.

  2. The parties to the conflict use an organized military force

  3. The armed groups must have some responsible command and a distinct hierarchy to sustain military actions

  4. They must exercise control over any territory within the State

Although the Government utilizes armed forces in instances of hostages or explosions, the majority of the response is by the local police forces. Even though the Naxal organizations fight under the same Banner and for the same cause, they do not have a hierarchy, a responsible command and explicit control over territory within the country neither do these outfits have the funding nor the capability to engage in an armed struggle against the State. Hence, the nature of the confrontation between the Indian Government and the Naxalites cannot be categorized as Non-International Armed conflict as they are generally sporadic in nature, which amounts to internal disturbance and tension. Hence, India attracts the provisions under the Convention on Rights of Child and the ILO Convention 182, which obligates the government to protect child soldiers who have fallen prey to the Naxal movement.

WHAT IS THE STATUS QUO?

The nature of the tasks undertaken by the child soldiers violates Article 23[4] and 24 of the Indian Constitution[5], which prohibits all forms of human trafficking and employment of children in hazardous working conditions, respectively. The directive principles enshrined in the constitution obligates the State to improve the health of children[6] to enjoy freedoms and dignity and protect them against moral and material abandonment. In addition to this, the child soldiers are denied their fundamental right to free and mandatory education provided under article 21 A of the constitution.[7]

The Juvenile Justice Act, which was introduced in the year 2000, recognizes the existence of recruitment of children by militant outfits.[8] According to Section 83 of the Act, any recruitment of children by non-State, self-styled militant groups identified by the Central Government is met with rigorous imprisonment up to seven years and a fine of five lakh rupees. The Act also makes provisions for placing such rescued children under the care of special homes after a preliminary inquiry by the child welfare committee.

Children between the ages of 16-18, who have committed heinous offences under the Indian Penal Code, are tried before the Juvenile Justice Board as provided in section 15 of the act, which gives sufficient consideration to their psychological state and other factors that led to the commission of such offence. A National Level Commission is set up through the Commission for Protection of Child Rights Act, 2005 which takes cognizance of cases wherein there is a clear violation of child rights.[9]

PROBLEM WITH THE EXISTING MEASURES OF GOVERNMENT

The surrender and rehabilitation policy, introduced by the Government to reintegrate surrendered Naxal soldiers into the mainstream society for land and cash benefits, is adult-oriented and does not address the unique requirements and needs of child soldiers. There has been no consideration for their mental health and the requirement to be placed in specialized trauma centres.

In some instances, even after surrendering to the Government, children are kept in transit camps for several months without any education or job opportunities, while some of them are recruited to be part of the counter-insurgency programs undertaken by the State Government. Although the Supreme Court has issued strict guidelines against the functioning of such anti-Naxal organizations supported by the state governments in 2011[10], these organizations continue to employ children to be a part of local vigilante groups.

TOWARDS EFFECTIVE REINTEGRATION

The International Labour Organisation follows an inclusive economic model of reintegration of child soldiers which includes provision for vocational and life-skill training as well as the promotion of financial literacy in order to help them achieve independent means of earning their livelihood.[11] The existing schemes and policies aren’t in line with the requirements of Article 39 of the CRC which specifically provides for the appointment of psychiatrists or psychologists to tend to such children.[12] The Disarmament-Demobilization-Reintegration (DDR) principle requires that primary consideration must be given to disarm them and treat them as victims rather than criminals.

The Government should provide minimum elementary education to the rescued children, which also involves basic skills such as engaging and improving the quality of interactions in society and provide them with an insight into the various career opportunities that lie ahead of them. Children who are suffering from post-traumatic stress disorder and other mental health issues due to the events they have been involved in must be provided with access to mental health care facilities at all levels. It is imperative to de-stigmatize the notions attached to child soldiers, for which a community-based sensitization is required, especially relating to girl child soldiers who might have been subject to sexual abuse or rape. Reintegration measures must not just be limited to physical development but should ensure overall development of the child.

The government must also extend vocational training along with other programs that would empower them in society. They should also provide them with economic and social incentives so that the children do not fall back into a life of violence. The process of reintegration is a long one but to protect the vulnerable position of the child soldiers, it is essential to take all measures to rehabilitate them effectively.

References

[1] United Nations Security Council, Report on Promotion and protection of the rights of children Agenda Item 65, 2013 [2] Uddipan Mukherjee, Catch Them Young: Patterns of Naxal Recruitment, 2 IPCS, (2014) [3] Geneva Convention, Aug 12, 1949, art. 3. [4] INDIA CONST. art. 23, cl. 1. [5] INDIA CONST. art. 24. [6] INDIA CONST. art.39, cl. e.

[7] INDIA CONST. art. 21 A, amended by The Constitution (eighty-sixth Amendment) Act, 2002. [8] The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000). [9] Commissions for Protection of Child Rights (CPCR) Act, 2005 (Act 4 of 2006). [10] Nandini Suresh v State Of Chhattisgarh, AIR 2011 SC 2839 (India). [11] Mark J.D Jordans, et.al, Reintegration of Child Soldiers in Burundi: A Tracer Study, BMC Public Health, 2012. [12] Convention on the Rights of the Child, Nov 20, 1989, art. 39.

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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