Child rights advocates fear bill to worsen violations against children

By INA ALLECO R. SILVERIO
Bulatlat.com

MANILA — Children’s advocacy groups Salinlahi and the Children’s Rehabilitation Center (CRC) are wary that a bill pending in the Senate is out to cause more harm than good to Filipino children, specially children in armed conflict (CIAC) situations.

The groups said the proposal is largely an attempt at an application of the controversial Paris Principles to Philippine law, but without genuine consideration for the real situation faced by CIAC and for the character and nature of the ongoing civil war in the Philippines. The bill seeks to broaden the definition of child soldiers.

In late May 2011, the House of Representatives passed House Bill 4480 declaring as a criminal act the use of children by government security forces or other armed groups in an armed conflict. If passed into law, it will be called the Special Protection of Children in Situations of Armed Conflict Act of 2011.

Authored by Marikina 1st District Rep. Marcelino Teodoro, the bill prohibits the recruitment and use of children in armed conflict. Other co-authors of the measure are Reps. Josephine Veronique Lacson-Noel (Lone District, Malabon City), Lani Mercado-Revilla (2nd District, Cavite), Eufranio Eriguel (2nd District, La Union), Aurora Enerio-Cerilles (2nd District, Zamboanga del Sur), Cinchona Cruz-Gonzales (Party-list, CIBAC) and Leopoldo Bataoil (2nd District, Pangasinan).

“The bill will prosecute those responsible especially for grave child rights violations in armed conflict. Children shall be provided relief, protection and rehabilitation in such situations,” Teodoro said.

Among the prohibited acts are killing, torture, intentional or causal maiming, rape, abduction, cruel, inhuman and degrading treatment or punishment of children and taking them as human shields. Also included in the prohibited acts are the recruitment, conscription or enlistment of children into government armed forces and other armed groups.

The bill also bans military operations near the premises of schools, hospitals, places of worship and other public places where children can usually be found. It prohibits hamleting, food blockade, intentional delayed reporting of a child in custody, false reporting of a child in custody and false branding of children.

All of this, the CRC and Salinlahi said, are well and good, except for the provisions that categorize children as child soldiers by mere association with armed groups or if they are found or ‘rescued’ by state military forces or other government authorities in the presence, company or vicinity of members of armed non-state actors.

In the Senate, the bill has counterparts, with various versions with essentially similar premises and provisions authored by Senators Teofisto Guingona, Ferdinand Marcos, Jinggoy Estrada and Ramon Revilla Jr.

Among the more worrying provisions in both the Senate and House versions is that which states that parents, ascendants, guardians, step parents or collateral relatives within the third degree of consanguinity or affinity can be charged in court if they are found guilty of encouraging, compelling, coercing, or influencing their child or children to be part of any armed group.

Anyone found guilty of committing the offense shall be punished with a penalty of imprisonment ranging from six years to life imprisonment and a fine of P500,000 to P2 million ($11.9 to $47.6 thousand).

Questionable provisions

Gabriela Women’s Party Rep. Emmi De Jesus said there are many reasons to closely monitor the developments in the drafting of the special protection for CIAC version in the Senate, among them, for instance, is the involvement of AFP consultants in the process. She also took issue with the inclusion of sections directly lifted from the Paris Principles.

“On the whole, the proponents of the bill should confine the enumeration of State undertaking to commitments made under international treaties, which are binding under the principle of pacta sunt servanda. The inclusion of the non-binding Paris Principles and enumeration of its contents in the bill unnecessarily lengthens the law and would be irrelevant if the core provisions would not reflect what the primary international instruments should provide,” she pointed out.

De Jesus said that in its current form in the Senate and in the Lower House, the bill on the special protection of CIAC include sections on children who “voluntarily joined” in any governmental armed forces or any armed group. This, the lawmaker said, runs counter to the recognition by national and international law that children below the age of 18 are incapable of discernment, and the obligation these laws impose upon armed forces or armed group to determine voluntariness and consent of the parents.

The Optional Protocol recognizes and allows States to permit conscripting children below 18 years old provided certain safeguards and standards (Article 3 [3] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict) are adhered to.
Also, De Jesus said, children come within the ambit of protection imposed on actors by the fundamental guarantees (Article 4) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), particularly in paragraph 1 and 3 which states: all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

“We have serious apprehensions that the bill if passed into law will actually be used to harass, threaten and arrest children as a means for the AFP to weaken its targets such as the NPA and the Moro Islamic Liberation Front (MILF),” she said.

Since Aquino assumed office in 2010, the CRC has recorded five killings, 17 frustrated killings, two rape cases, 10 attacks on schools and eight cases of children branded as child soldiers.

Using the Paris Principles out of context

Salinlahi spokeswoman Melissa San Miguel said the proponents of the bill are taking the Paris Principles out of context and not acknowledging the realities of the civil war in the Philippines.

“They cannot and should not take a non-binding declaration of principles and simply apply it to the Philippines. The conditions of civil war and armed conflict in the Philippines is very different from, say, those in Africa where the wars are often tribal in nature or carried out by warlords. The war in the Philippines takes place in the countryside, in the most neglected areas of the country. The arena of war takes place in the communities of farmers and rural settlers. Obviously, there are children there – they’re the children of farmers and other rural poor. The proposed law wants to turn children in areas of conflict into legitimate targets of the military by branding them as child soldiers just because they live in areas where groups like the NPA have presence and which these groups consider to be under their protective or political jurisdiction,” she said.

San Miguel said many children’s rights advocates and their groups fail to see that the Paris Principles are already being used by the government armed forces against children and their families. She said these same groups support the passage of the special protection for CIAC bill without seeing how scores of children are already being victimized by the government’s armed forces.

“What more if the Principles are converted into Philippine law. The Benigno Aquino III government itself is targeting children by pushing for the passage of this bill,” she said.

The children’s rights advocate said that as of Salinlahi and CRC’s last check with the Senate committees on children and national defense, which are both hearing the proposal, the CIAC bill seeks to cover children in communities where there is the presence of armed groups like the NPA.

“No child will be safe from the AFP if the bill is passed in its current form. Even children playing in communities where the AFP has military operations can be targeted — either arrested and detained, or worse, harassed and killed. We foresee human rights violations against children mounting if the bill is passed into law. The burden of proving that a child is not a child soldier or combatant will lie largely on the parents, and this alone can be a very harrowing experience both for the child and the parents,” she said.

Culture of impunity against children-victims

The CRC said that while it welcomes the efforts of Philippine lawmakers to strengthen policies on the protection of children in armed conflict, adapting the Paris Principles to the Philippine setting without careful consideration for the actual circumstances children in conflict situations and areas face is not the way to go about it.

CRC’s executive director Jacqueline Ruiz said any law that seeks to protect children in situations of conflict should uphold and guarantee the right of children to be with their families during evacuations and in evacuation centers. She said that at no point should the children , especially the young ones, be separated from their parents, relatives or significant adults in times of emergencies.

This is because parents, relatives and significant adults provide not only physical protection but also psycho-social support for children especially in times when their security is at risk.

The CRC also took issue with the section on Prevention, Rehabilitation and Reintegration, Rescue and Demobilization. Ruiz said the bill says nothing about the responsibility of the State to ensure participation of children in community processes in order to provide more positive alternative actions for children.

“What’s more, nowhere in the bill is it stated that the government is duty-bound to speedy resolution of cases involving violations of human rights of children in armed conflict,” she said.

She said the CRC has, since 2007, noticed a trend set by government armed forces of falsely branding children as illegally arrested or ‘rescued’ by the military during their operations. Children caught in situations of armed conflict have been wrongly and unjust labelled as warriors”, “child combatants”, “child soldiers” or even “child terrorists.”

“As they are accused of being child soldiers, the victims are also subjected to physical assault and torture. They are then subjected to interrogations in camps or used as guides in military operations during their illegal detention in military camps. In some instances, they are even presented to the media in handcuffs, or interrogated in front of the media. There is no provision in the proposed bill that protects children from such violations,” she pointed out.

Civilian, not military authority over children in armed conflict

When it comes to protection of children in armed conflict situations, the CRC said, it is all for strengthening the role of the Barangay Council for the Protection of Children or BCPC in the prevention and identification of CIAC.

It said the BCPC’s should initiate the creation of child protection protocols during armed conflict situations and other emergencies in their communities; and empowered to provide immediate psycho-social first aid to children victims through capacity-building activities.

“The staff and officials of BCPCs should be the ones first informed by the military when they arrest or ‘rescue’ children in situations of armed conflict. The staff should then inform the family of the child/children immediately within 6 hours upon such arrest or ‘rescue’. The military should turn the child over to the custody of the BCPC, which, in turn will determine whether the child is a resident of the community and whether the accusation that he or she is a child soldier is true or not. If the BCPC determines that the child is not a child soldier, he/she must be immediately released to his/her family or relatives, and not allowed to be detained by the military,” she said.

In an ideal law protecting CIAC, Ruiz said, the local social welfare department (LSWD) should be compelled to always be present during the turnover of the military to the BCPC. The LSWD under the law will take custody of the child for rehabilitation after 24 hours if the family fails to prove that the child is not involved in armed conflict.

Most importantly, Ruiz said, a law that genuinely protects CIAC will prosecute and punish authorities both military and civilian involved in false branding of children as child soldiers or CIAC.

“Military personnel who illegally arrest, torture and brand children as CIAC must be subjected to immediate investigation and prosecution. In the meantime, civilian authorities such as those from the LSWD who fail to turnover falsely branded CIAC to their families upon presentation of proof negating the accusation should also be subjected to investigation and prosecution,” she said.

Ruiz said the crafters and proponents of the law did not take into account the climate of impunity in human rights violations prevailing in the Philippines.

“The fact that the biggest human rights violators — the AFP, the Philippine National Police, and the government itself — get away with attacking the human rights of ordinary civilians, including children, makes it impossible for the government to give credible and believable guarantees that children in armed conflict are protected,” she said.