15. RESCUED FROM WAR: GOVERNMENT REHABILITATION PROGRAMS FOR CHILD COMBATANTS
Even children who have lived through the cruelest experiences yearn for normality: to return to their family, to have a family of their own, or just to get on with the lives they left behind. The Colombian government runs two programs that help former child combatants regain their footing. Since 1999, the Colombian Family Welfare Institute has provided assistance to more than 750 former child combatants, of whom 660 were referred to the ICBF after their capture by the police or the army. Ninety-two deserted and gave themselves up to the authorities.338
In addition, the Ministry of the Interior runs a Reinsertion Program to assist deserters, including children, from the guerrilla groups that are recognized as belligerents by the government. In practice, this means the FARC-EP and the UC-ELN. This program, which dates from a 1990 peace agreement with guerrillas, excludes paramilitary deserters and children from any armed group who do not give themselves up but are captured. After the Colombian army's Operation Berlin, the ministry opened up a new program for children. It currently assists about 150 children.339
There are differences in the philosophy and methods underlying the approach of these state organizations. While the ICBF provides stronger institutional support, protection and specialized care, the Reinsertion Program gives the children greater independence and more money.340
The ICBF initiative dates to 1996, the year in which the United Nations published a landmark report by the secretary general's expert on children and armed conflict, Graça Machel, about the effects of war on children. In April that year, the U.N. team held a regional consultation in Bogotá whose recommendations included "to develop programs for the psychosocial recuperation of children, their rehabilitation and care. Access to these services should be seen as a basic right of all children, in accordance with the Convention on the Rights of the Child."341
During the same month, then-President Andrés Pastrana's ministers signed a declaration of intent to rescue children from the destructive effects of the conflict. In May 1996, ICBF director Adelina Covo sent a letter to guerrilla and paramilitary commanders urging them to reach agreement with the government "at least on one thing: to stop Colombian children from taking up arms."342 Although the letter was unsuccessful (the responses of the FARC-EP and the UC-ELN were noted in this report), all the actors in the conflict have at least allowed the ICBF rehabilitation program to function without attack, threats, or harassment.343
Spurring on the ICBF's efforts, the Public Advocate's Office published a series of timely reports about the impact of the conflict on children. It urged the adoption of a rehabilitation program geared to their special needs. The key difference with existing state programs for children in custody was that former child combatants would be treated with respect for their dignity as victims of the conflict and without any stigma of criminality.344
The ICBF program is divided into three stages. Initially, children receive medical attention, counseling, and psychological help for a few weeks in a discreetly anonymous "entry home" in Bogotá (security is a permanent concern in all of the facilities). When Human Rights Watch visited in May 2002, the two entry homes in the capital were full to capacity with more than forty boys and girls. After screening and evaluation, the children are moved to one of several "specialized care centers," at this writing located on the outskirts of Bogotá, Medellín, Cali, and Bucaramanga.
Unlike the cramped entry homes, the care centers we visited were spacious villas with large kitchens, patios, and gardens with space for pets, chickens, pigs, fruit and vegetable patches, even a swimming pool. The children's quarters were segregated by gender. Each child had a bunk with space to lay out his or her personal possessions.
The centers were run by local NGOs contracted by the ICBF. Young social workers, psychologists, and teachers were at hand. The atmosphere in each of the homes was cheerful, informal, and boisterous, quite reminiscent of summer camp. The children, scared and mistrustful at first, particularly if they had been
While a child is in the center, the ICBF tries to establish contact with the family. In many cases, reunions are impossible to arrange. Sometimes, the parents or child expresses no interest. Other times, both fear reprisals either from the guerrillas or the paramilitaries. In some cases, the parents remain in an armed group.
In the third stage of the ICBF program, a minority among the children may be reunited with their parents or go to live with a close relative. More commonly, the children leave the centers to live with four or so other former combatants in a "youth house," typically an apartment in an urban center. They are supervised by a mentor chosen by the institution. When the children reach the age of eighteen, they are free to leave.346
Since it began in 1999, the ICBF rehabilitation program has expanded rapidly. During 2002, the number of deserters from guerrilla ranks increased dramatically, as did the proportion of children among them. According to government figures, in 1999, 102 guerrilla combatants, including five children, deserted; in 2001, 327 fighters deserted, including 102 children. During the first ten months of 2002, the number of deserters approached one thousand, of whom 413 were children. The number of children captured also increased significantly.347 When Human Rights Watch visited the ICBF's reception centers in Bogotá in May 2002, extra bunks had been crammed into the available space to accommodate the dozens of youngsters arriving.
The Reinsertion Program, organized by the Interior Ministry to cater for the needs of demobilized child combatants, began in earnest in December 2000, spurred by the large influx of FARC-EP child deserters during Operation Berlin. The program currently assists about 150 children, who either live with members of their families or, more commonly, with a surrogate family selected by the program. The children in Bogotá attend the program's special school. But apart from that requirement, they are not institutionalized at all. They may also receive economic benefits, such as a seed grant of eight million Colombian pesos (about U.S. $2,660) to set up a business, and receive training in small business administration.
No specific national law regulates humanitarian assistance for former child combatants. The legal framework of the government's demobilization program was provided by a law devised for political rather than humanitarian purposes--to establish conditions for the opening of the peace talks with the FARC-EP. The first chapter of Law 418, approved on December 26, 1997, contained "provisions to facilitate dialogue and the signing of agreements with illegal armed organizations that the National Government recognizes as being of a political nature, with a view to their demobilization, to reconciliation between Colombians, and peaceful coexistence."348
Articles 50 and 60, respectively, allowed the government to grant pardons or dismiss charges in the case of those convicted, indicted, or accused of belonging to an illegal armed group recognized by the government, or of related criminal acts, provided that the group, or the individual concerned, had abandoned armed struggle and opted to return to legal political activity and civilian life. The provision was not applicable to "atrocious acts of ferocity and barbarism, terrorism, kidnapping, genocide, and killings committed out-of-combat or when the victim is defenseless."349
Article 50 included a special provision for children, requiring prosecutors and judges to refer their cases to a technical body, the Operative Committee for the Abandonment of Arms (Comité Operativo para la Dejación de Armas, CODA), which had to decide if they were eligible to benefit from the law. Decisions made by CODA gave criminal immunity and economic benefits only to children belonging to the FARC-EP, the UC-ELN, and members of smaller guerrilla groups who surrender. The law denied both immunity and benefits to members of the AUC or combatants from any other armed group who were captured.
When Congress enacted Law 782, voted to renewing Law 418, on December 23, 2002, three important changes affecting children were introduced. The reference in article 50 to groups "recognized by the government" was eliminated, so that in the future children from paramilitary groups could also benefit from the law. Second, children "taking part in hostilities" were to be considered henceforth as "victims of political violence" and would be eligible for government humanitarian assistance.350 Finally, a new provision was introduced requiring the ICBF to implement a special program benefiting all children who had taken part in the conflict or had been victims of political violence. This was the first law to establish a specific legal mandate for the ICBF program for former child combatants.351
In 2002, the government introduced a bill in the congress that would hold child combatants over the age of twelve criminally responsible for certain crimes of "special gravity," including forced disappearance, extortion, torture, kidnapping, genocide, aggravated homicide, simple homicide, conspiracy to commit such crimes, violent sexual abuse when the victim is under eighteen, sexual abuse of children less than fourteen, and sexual abuse against a defenseless person.352
The issue of suitable treatment of children found liable for atrocities committed while under arms remains a difficult issue. As current research on child combatants has shown, a significant proportion of former child combatants admit participating as agents or accessories in one or another of these very serious crimes.353
Children cannot be tasked with the same decisions as adults and thus cannot be punished like adults even if found guilty of heinous crimes. While most adults are capable of seeing that cold-blooded murder is wrong, a child is less
The Inter-American Commission on Human Rights calls for governments "to take severe legislative, judicial, or other measures to identify, prosecute, and punish state agents or civilians who carry out, authorize, assist in, or facilitate the recruitment of children or their use in armed conflicts." With regard to the children, the Commission recommends that governments establish "special policies, mechanisms, and institutions for the recovery, reeducation, and social rehabilitation of children and youths who have participated in armed organizations, whether state or nongovernmental."355
Where children are held to be criminally responsible for grave abuses, the circumstances of their recruitment, possible coercion, and relative lack of maturity should be considered as mitigating factors in determining the nature of their sentence. In such cases, sentencing should promote the child's rehabilitation and reintegration, as provided in articles 39 and 40 of the Convention on the Rights of the Child and article 14(4) of the ICCPR. As in all cases in which children are accused of having infringed the law, the state should observe all international standards relating to children in the justice system.356
The Uribe government has stated its intention to introduce legislation to establish a new system of juvenile criminal justice.357 As of this writing, however, there have been no legislative or policy innovations apart from Law 782 that strengthen the rights of former child combatants or are specifically aimed at preventing the recruitment of children. As the office of the United Nations High Commissioner on Human Rights noted in its March 2003 report, "No provisions have been added to [Colombia's] Children's Code to make it compatible with the Convention on the Rights of the Child."358
Indeed, some of the policies introduced by Uribe to combat armed violence could potentially reverse gradual gains made in recent years. Of particular concern to Human Rights Watch is the failure of the government to specify the minimum age at which young people may be recruited as members of the network of civilian informers established by the government in 2002. The Rome Statute of the International Criminal Court includes as a war crime using children under fifteen "to participate actively in hostilities," which the travaux préparatoires has defined to include scouting and spying.359
It is likely that children tempted by promises of money to join the guerrilla or the paramilitary forces would be equally tempted by the opportunity to gain money working undercover for the government. So far, the government has failed to explicitly prohibit the use of children as informers in its plan for a Network of Citizens' Cooperation (Red de Cooperación Ciudadana). Moreover, children could themselves be victims of anonymous and malicious accusations of membership in, or collaboration with, armed groups made by informers whose identity is kept secret under the government program.
Also, the protection of children's rights by means of prompt and effective appeals might be affected by a draft constitutional reform concerning the administration of justice, submitted in October 2002, which called for the right of amparo, the enforcement of constitutional rights, known in Colombia as an acción de tutela, to be excluded from children's rights.360
334Human Rights Watch interview with "Hernán," Bogotá, June 3, 2002.
335Human Rights Watch interview with "Jaime," Medellín , June 5, 2002.
336Human Rights Watch interview with "Estéban," Bogotá, June 2, 2002.
337Human Rights Watch interview with "Laidy," Bogotá, May 31, 2002.
338UNICEF Colombia, "Situación de la niñez víctima del conflicto armado," press release, Bogotá, October 10, 2002.
339Human Rights Watch interview with Marta Ballesteros, Ministry of the Interior, Bogotá, June 10, 2002.
340Human Rights Watch interview with Marta Ballesteros, official in charge of the Ministry of the Interior's reinsertion program for child deserters, Bogotá, June 10, 2002. Human Rights Watch talked to several children in the program's school in Bogotá.
341United Nations General Assembly, Promotion and Protection of the Rights of Children, Impact of armed conflict on children, Note by the Secretary-General, Addendum, A/51/306/Add.1., September 9, 1996. Article 39 of the Convention on the Rights of the Child states, "States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child."
342Ministerio de Salud, Instituto Colombiano de Bienestar Familiar, "Documento de Evaluación Gestión ICBF, Actores Armados, Tema: Niñez y Conflicto Armado," June 1998 (anexo 2)
343The ICBF rehabilitation program is funded in part by the Colombian government, and also receives financial assistance from the International Organization for Migration, Save the Children (U.K.) and the United States Agency for International Development.
344Beatriz Linares, "Reto de la Defensoría del Pueblo frente a la niñez y juventud colombiana víctimas del conflicto armado," in Martha Bello and Sandra Ruiz (eds.), Conflicto Armado, Niñez y Juventud (Santafé de Bogotá: Universidad Nacional de Colombia, 2002) pp. 157-168.
345Human Rights Watch interview with a social worker from the ICBF center in Medellín, June 5, 2002. One of the rare serious clashes between former paramilitary and guerrilla children occurred in this center shortly after it was opened. The former paramilitaries had to be separated and relocated to other centers.
346Human Rights Watch interview with Blanca Cecilia Gómez, Save the Children (UK), Bogotá, May 28, 2002.
347Figures from the Program of Humanitarian Assistance to the Demobilized (Programa Para la Atención Humanitaria al Desmovilizado) of the Presidency.; and "Los niños llevan el peso de la guerra en Colombia," El Nuevo Herald (Miami), November 8, 2002
348Chapter 1 (title), Ley 418 de 26 de diciembre de 1997, available on the Internet at http://www.red.gov.co/LaInstitucion/Normatividad/Ley418-1997/ley418-1997.html (retrieved on November 26, 2002).
349Ibid., article 50 (3).
350Articles 15 and 16 of Law No. 782, of December 23, 2002. Law 782 is available online at http://bib.minjusticia.gov.co/normas/leyes/2002/l7822002.htm (retrieved on June 2, 2003).
351Article 17 of Law No. 782.
352The bill did not advance in 2002,due to an effective lobby by children's rights groups. Human Rights Watch telephone interview with Colombian Commission of Jurists, May 12, 2003.
353See for example, Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001 (London: Coalition to Stop the Use of Child Soldiers, 2001) and Brett, Rachel and Margaret McCallin, Children: The Invisible Soldiers (Stockholm: Radda Barnen, 1998), pp 93-99.
354United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"), G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985) [online], http://www1.umn.edu/humanrts/instree/j3unsmr.htm (retrieved on June 9, 2003).
355 Annual Report of the Inter-American Commission on Human Rights 1999, Chapter 6, Recommendation for eradicating the recruitment of children and their participation in armed conflicts, OEA/Ser.L/V/II.106 Doc. 6 April 13, 1999 [online], http://www.cidh.oas.org/annualrep/99eng/Chapter6a.htm (retrieved on June 9, 2003).
356Convention on the Rights of the Child, arts. 39, 40, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990); International Covenant on Civil and Political Rights, art. 14 (4), opened for signature December 19, 1966, 999 U.N.T.S. 171 (entered into force March 23,1976).
357 Proyecto de Ley, "Plan Nacional de Desarrollo, 2002-2006: Hacia un Estado Comunitario," Departamento Nacional de Planeación [online], http://www.dnp.gov.co/01_CONT/POLITICA/PLAN.HTM (retrieved on June 3, 2003).
358As of this writing, that remains true. Informe Anual del Alto Comisionado sobre Derechos Humanos en Colombia, February 24, 2003, E/CN.4/2003/13. Available at http://www.hchr.org.co/documentoseinformes/informes/altocomisionado/informe2002.html (retrieved on May 19, 2003).
359Rome Statute of the International Criminal Court, art. 8 (2)(e)(vii); and Report of the Preparatory Committee 1998, Add. 1, fn. 12 to article 5, War Crimes, B(t) Option 2, p. 25.
360Informe Anual del Alto Comisionado sobre Derechos Humanos en Colombia, February 24, 2003, E/CN.4/2003/13. Available at http://www.hchr.org.co/documentoseinformes/informes/altocomisionado/informe2002.html (retrieved on May 19, 2003).