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.
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:
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):
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:
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:
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:
In addition, article 6(3) of the Child Soldiers Protocol provides that:
Article 7(1) requires that states party:
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
361In his statement to the Security Council at the January 14 debate, Special Representative for the Secretary General on Children and Armed Conflict Olara Otunnu proposed the following as possible measures: "imposition of travel restrictions on leaders and their exclusion from any governance structures and amnesty provisions, a ban on the export or supply of arms, and restriction on the flow of financial resources to the parties concerned." See http://www.un.org/special-rep/children-armed-conflict/ (retrieved on April 6, 2003).
362Protocol II, art. 1(1).
363Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 4 (3) (c) .
364According to Article 93 of the Constitution: "the international treaties and agreements ratified by Congress that recognize human rights and prohibit their limitation in states of emergency prevail in the national law." Constitución Política de Colombia de 1991, actualizada hasta Reforma de 2001, Article 93.
365Convention on the Rights of the Child, Articles 2,3.
366Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, UKTS 58 (1980), art. 18.
367Law No. 704.
368International Labor Organization, Worst Forms of Child Labor Convention (Convention 182), Article 3 (a).
369Article 7(1) .
370Worst Forms of Child Labor Recommendation 190, ILO General Conference, 87th Session, adopted June 17, 1999, art. 12.
371Convention on the Rights of the Child, Article 32 (1).
372Convention on the Rights of the Child, Article 19 (1).
373Convention on the Rights of the Child, Article 9.
374Rome Statute of the International Criminal Court, art. 8(2)(e)(vii).
375United Nations Security Council Resolution No. 1379, of November 20, 2001.