Aung Ko Htway Case: Prosecuting Former Child Soldiers in Myanmar

On March 28th, 2018, the Dagon Seikkan Township Court sentenced former child soldier Aung Ko Htway to two years in prison under section 505(b) of the Penal Code for disclosing his abduction and forced conscription into the Myanmar army at the age of 14. Section 505(b) of the Penal Code – which has been widely used to suppress freedom of expression – criminalises “whoever makes, publishes or circulates any statement, rumour or report with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.

Aung Ko Htway was arrested on August 18th, 2017, after Radio Free Asia released an interview about his life. He described how he was abducted in 2005, at the age of 14, by a Myanmar soldier and forcibly recruited into the army. In 2007, Aung Ko Htway and two other children tried to escape, but were caught and accused of murdering a man. They were detained with shackles on their hands and feet, and were fed rice mixed with sand. After seven months, Aung Ko Htway, unable to withstand these inhuman detention conditions any longer, signed a document admitting his involvement in the killing. At the age of 16, he was sentenced to death. Aung Ko Htway was released on July 15th, 2017, when he turned 26, under a presidential amnesty. In August 2017, he was attempting to rebuild his life when Myanmar security forces arrested him for speaking out about the dramatic experience.

The attempt to silence Aung Ko Htway seriously undermines the national commitment to ending underage recruitment by the Tatmadaw (the Myanmar army) and violates international law and standards on the treatment of former child soldiers. It generates grave concerns that security forces are trying to suppress reports of these crimes. This is likely to increase victims’ fear of retaliation, impairing their identification and release process, and ultimately sabotage efforts to tackle this heinous phenomenon. At stake is the progress made following the signing, in June 2012, of a Joint Action Plan between the Myanmar government and the United Nations to end and prevent the recruitment and use of children by the Tatmadaw. More than 849 children were released, but further essential steps are needed. All underage recruits must be freed, and their protection must be made a priority following release.

The Paris Principles on Children Associated with Armed Forces or Armed Groups – signed by Myanmar in February 2017 – constitutes an important framework for protection and reintegration into civilian life. Child soldiers should be considered first and foremost as victims of crimes and should not be prosecuted or punished for their membership in armed forces or armed groups. All allegations of violence committed against them should be promptly, thoroughly and properly investigated. Perpetrators of offences against them should be adequately prosecuted.

It is important to remember that Aung Ko Htway, and all child soldiers, “retain their human rights as children, and relevant international law and standards must be applied, inter alia: No child may be subjected to torture or other cruel, inhuman or degrading treatment or punishment; Neither capital punishment nor life imprisonment should be imposed for offences committed by persons below eighteen years of age; No child may be deprived of his or her liberty unlawfully or arbitrarily.” The prosecution of a former child soldier – the victim of human rights violations – for detailing the crimes committed against him should clearly not be acceptable in a country which claims to be progressing towards democracy and the rule of law. The Myanmar government should be protecting and reintegrating the victims of underage recruitment instead of punishing them. It should be prosecuting the perpetrators of crimes against child soldiers, instead of silencing the victims’ allegations for causing “fear or alarm to the public.”

It is therefore essential that the Myanmar government takes the necessary further steps in preventing the recruitment and use of child soldiers, with a particular focus on implementing the existing protection and reintegration provisions fully, as well as ratifying the Optional Protocol to the Convention on the Rights of the Child on Children and Armed Conflict. It is time for the Myanmar government to honour their commitments, in order to ensure that all victims will be adequately supported and crimes against them redressed.


Sources: 

Human Rights Watch ‘Myanmar: Quash Conviction of Former Child Soldier’ 2 April 2018 <https://www.hrw.org/news/2018/04/02/myanmar-quash-conviction-former-child-soldier> accessed 3 April 2018.

Penal Code, 1861 (Myanmar), s 505(b). 

Radio Free Asia ‘Former Myanmar Child Soldier Arrested after Interview with RFA’ 21 August 2017 <https://www.rfa.org/english/news/myanmar/former-myanmar-child-soldier-arrested-after-interview-wtih-RFA-08212017150549.html> accessed 3 April 2018.

Radio Free Asia ‘Former Myanmar Child Soldier Describes Long Struggle to Turn Life Around’ 18 August 2017 < https://www.rfa.org/english/news/myanmar/former-myanmar-child-soldier-describes-long-struggle-to-turn-life-around-08172017154924.html> accessed 3 April 2018. 

UNSC ‘Report of the Secretary-General on children and armed conflict in Myanmar’ (2017) S/2017/1099. 

Paris Principles – Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, 2007.

Optional Protocol to the Convention on the Rights of the Child on Children and Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222.

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