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16. LEGAL STANDARDS

There are encouraging signs that states are beginning to treat the issue of child soldiers with the seriousness it deserves. On January 30, 2003, following an all-day debate on children and armed conflict held on January 14, the U.N. Security Council adopted a resolution requesting the secretary-general to report by October 31, 2003, on progress to end child recruitment made by parties to armed conflicts that currently recruit or use child soldiers in violation of their international obligations. The progress report applies to all those states, including Colombia, that were mentioned in a report on child soldiers submitted by the secretary-general at the end of 2002. The resolution stated that the Security Council would consider additional measures if progress was deemed insufficient. Although the measures were not specified, it was a promising indication that the agreements in the Security Council would have teeth and would not end with mere good intentions.³⁶¹

International Humanitarian Law

Colombia has been a party to the Geneva Conventions of 1949 since 1963 and to the Second Additional Protocol (Protocol II) to the Geneva Conventions since 1996. Common article 3 to the 1949 Geneva Conventions applies during non-international (internal) armed conflicts. It requires all parties to the conflict to treat captured combatants and civilians humanely. It prohibits violence to life and person of those detained, including murder of all kinds, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment. Common article 3 also requires the passing of sentences be carried out by a regularly constituted court meeting due process standards.

All parties to the conflict in Colombia have been responsible for serious violations of common article 3. Child combatants have frequently been the victims of these abuses. Particularly egregious and common has been the summary execution of children who have disobeyed orders or deserted. To date, no irregular armed groups has halted this practice or announced any intention to do so.

Protocol II is applicable when opposing forces in an internal conflict are under a responsible command, exercise enough control over territory to mount sustained and coordinated military actions, and are able to implement Protocol II, all of which Colombia satisfies.³⁶² It is applicable not only to those forces that the Colombian government recognizes as adversaries, in particular the FARC-EP and the UC-ELN, but also to unrecognized groups, such as the paramilitaries.

Protocol II provides fundamental guarantees along the lines of those provided under common article 3. In addition, under article 4(3)(c) of Protocol II, all parties to an internal armed conflict are prohibited from recruiting children under the age of fifteen or allowing them to take part in hostilities.³⁶³

All of the armed groups in Colombia have commented on Protocol II. While at times they have expressed willingness to comply with its requirements, at other moments they have expressed reservations about the applicability to Colombia's irregular war of several of its prohibitions, including the one barring the recruitment of children. Secondly, they have tied their own application of the rules to the negotiation of concessions by other parties, a stance not sanctioned by international humanitarian law, whose application is not discretionary.

Human Rights Law

In addressing child soldier issues, the government of Colombia must comply with international human rights law as well as international humanitarian law. Apart from adhering itself to recruitment age limits, the government must also enforce them and take measures to hold those who violate them accountable. It must also protect children affected by armed conflict and take positive steps to promote their welfare. Under Colombia's 1991 constitution, its international human rights treaty obligations have the status of constitutional law.³⁶⁴ The basic standard on the recruitment of children for the armed forces is set by Article 38 of the Convention on the Rights of the Child, ratified by Colombia in 1991. It restates the ban on the recruitment of under-fifteens established in Protocol II:

States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavor to give priority to those who are oldest.³⁶⁵

The Convention's article 38 is an anomaly in using a fifteen-year age minimum; in all other respects, the Convention's general definition of a child is any person under the age of eighteen. The Convention states that none of its provisions should affect laws that are more conducive to the rights of the child. Since Colombia's national law prohibits recruitment below age eighteen, this standard therefore prevails.

Since the adoption of the Convention on the Rights of the Child in 1989, other international standards have been adopted that strengthen protections for children affected by armed conflict. These standards reflect a growing international consensus that children under the age of eighteen should not participate in armed conflict--a principle reflected in Colombia's own national law.

The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (hereinafter, the Child Soldiers Protocol), adopted unanimously by the United Nations General Assembly on May 25, 2000, establishes eighteen as the minimum age for direct participation in hostilities, for compulsory recruitment, and for any recruitment or use in hostilities by irregular armed groups. By May 2003, 111 countries, including Colombia, had signed it and fifty-two countries had ratified it. Colombia's ratification of the protocol still awaits approval by its Congress.

As a signatory of the Child Soldiers Protocol, Colombia is "obliged to refrain from acts which would defeat the object and purpose" of the treaty.³⁶⁶ Colombia must not only halt the conscription of under-eighteens but must also seek to ban their recruitment or use in hostilities by any armed group on its territory. According to Article 4(2):

States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices.

The obligation of states to protect children under the age of eighteen in armed conflict situations is also reflected in the Worst Forms of Child Labor Convention (No. 182), which member states of the International Labor Organization adopted unanimously in 1999, and Colombia ratified in 2001.³⁶⁷ Convention No. 182 commits ratifying member states to "take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labor as a matter of urgency." It defines a child as any person under the age of eighteen and includes in its definition of the worst forms of child labor:

All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict."³⁶⁸

Convention No.182 also requires each member state to "take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other sanctions."³⁶⁹ Recommendation 190 accompanying Convention 182 encourages states to make recruitment of children under the age of eighteen a criminal offense.³⁷⁰

Although the Worst Forms of Child Labor Convention refers only to children who are recruited by force, Human Rights Watch believes that ILO Convention No. 182 is applicable in Colombia to all child combatants, not just to victims of forcible recruitment. Even where recruitment is voluntary, children are not free to abandon the armed groups without risk of harsh reprisals, including execution.

The state also may be considered responsible, by omission, if it fails to take adequate steps to prevent the abuse by non-state actors of other rights that children enjoy under the Convention on the Rights of the Child. These include, among others:

The right to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development;³⁷¹

Protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation;³⁷²

And the right not to be separated from their parents against their will.³⁷³

To comply with the Convention, the state must not only have laws in force that punish the crime of child military recruitment with penalties appropriate to its gravity; it must also actively enforce them to the limit of its ability.

The Rome Statute of the International Criminal Court, ratified by Colombia on August 5, 2002, provides a backstop when a party to the statute is unable or unwilling to bring to justice those responsible for war crimes and crimes against humanity. The statute explicitly considers "conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities" to be a war crime under its jurisdiction.³⁷⁴ Such crimes committed by a member of any armed group on its territory fall under the court's jurisdiction. Regrettably, at the moment of ratification, Colombia introduced a declaration under article 124 of the statute, a transitional provision that allows state parties to reject the court's jurisdiction for a seven-year period for crimes covered under article 8 of the statute. Unless Colombia reverses it, this dispensation might make it impossible until August 2009 for the ICC to try those responsible for child recruitment, were the government to fail in its duty to hold them accountable.

The statute also includes other important measures to protect children in armed conflict: it recognizes intentional attacks on educational institutions as a war crime, provides special arrangements for children as victims and witnesses, and exempts children below the age of eighteen from prosecution by the court.

The obligation of the state to protect and promote the welfare of child victims of armed conflict derives from its general duties under the Convention on the Rights of the Child to protect children as the most vulnerable sector of society. According to article 39 of the Convention:

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.

In addition, article 6(3) of the Child Soldiers Protocol provides that:

States Party shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

Article 7(1) requires that states party:

Cooperate in the implementation of the present Protocol, including in the prevention of any activity contrary thereto and in the rehabilitation and social reintegration of persons who are victims of acts contrary thereto, including through technical cooperation and financial assistance. Such assistance and cooperation will be undertaken in consultation with the States Parties concerned and the relevant international organizations.

The U.N. Security Council has called on states to devote special efforts to provide the fullest possible care to children in armed conflict.³⁷⁵