CHAPTER XIII
THE RIGHTS OF THE CHILD
A. INTRODUCTION
1. Respect for the rights of the child is a fundamental value in a society that claims to practice social justice and observe human rights. This respect entails offering the child care and protection, basic parameters that guided in the past the theoretical and legal conception of what such rights should embody. It also means recognizing, respecting, and guaranteeing the individual personality of the child as a holder of rights and obligations.
2. A recent analysis on this matter in Colombia noted:
Girls and boys in Colombia suffer from the hardships of social injustice that translate into lack of access to such basic necessities for survival as proper diet, health, housing, and conditions that guarantee integral development, such as the right to education, recreation, and culture, and they find themselves subjected to labor exploitation. The alarming thing about the situation of children in Colombia is that the right to life and personal integrity itself is frequently violated since an increasing number of children suffer violations of these rights as a result of the internal armed conflict as well as social intolerance in the form of "social cleansing."( 1 )
3. The Colombian authorities themselves acknowledge that "although the situation of children is certainly far from being a quantitative problem, this type of analysis contributes significantly to a visualization of the complex problems relating to abandonment and poverty:
o 7.5 million children, or 41% of the child population, live in poverty, and 3 million children, or 15.6%, live in extreme poverty.
o The number of abused children is approximately 2 million.
o There are 15,000 minors who are street children, and, of this number, 60% have no other alternative.
o There are 2.4 million children and adolescents between the ages of 12 and 17 not enrolled in school.
o Nearly 2 million minors between the ages of 12 and 17 are working, and 90% of these children perform hazardous tasks. Only 1.2% of working children benefit from minimum labor support, guarantees and working conditions.
o It is calculated that one minor is kidnapped every other day.
o Ten percent of the population infected with HIV consists of children between
the ages of 10 and 18.
o Arrests are executed in only 1.7% of proceedings for sexual abuse, homicide,
and kidnapping of minors, and only 18.3% of trials end in a final verdict.(
2 )
4. Although the administration of ex-President Samper "in preparing the National Development Plan concentrated its efforts on public and social policies for human development, proposing guidelines that included creating a culture that favored the child,"( 3 ) information received by the Inter-American Commission on Human Rights (the "Commission," "IACHR" or "Inter-American Commission") indicates that the situation of children in Colombia, far from improving, or at least remaining stable, seems to have deteriorated in recent years. Of course, the problem cannot be looked at in isolation. The country's social, economic, and political conditions, which have also been examined in other Chapters of this Report, are a determining factor in the problems affecting childhood. The Commission will consider in this Chapter a number of important factors concerning the situation of children in Colombia in light of the norms that exist in this area and taking into account the special obligation of the State to protect the child.
B. LEGAL FRAMEWORK
5. Generally speaking, it can be affirmed that the problems affecting children in Colombia are not due to the absence of proper norms. On the contrary, Colombia has a sound and broad international and national legislative structure that establishes detailed protective measures concerning the rights of the child. The problem is that, in practice, this series of norms is not applied to the actual situation of most children in Colombia.
1. International Norms
6. The American Convention on Human Rights (the "Convention" or the "American Convention") states, at Article 19, that: "Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state". Since the American Convention first entered into force, the question of the rights of the child has gained in importance and has evolved considerably to the extent that more specific international instruments have been developed in this area that can also be applied in Colombia.( 4 )
7. The main international instrument that specifically governs the rights of the child is the Convention on the Rights of the Child, adopted by the United Nations in 1989, and ratified by Colombia on January 28, 1991.( 5 ) With respect to this Convention, it has been maintained that:
In its final form, the Convention on the Rights of the Child is a comprehensive treaty on human rights. Following the model of the Universal Declaration of Human Rights, the Convention brings together in one treaty both civil and political rights as well as economic, social, and cultural rights. Moreover, the Convention goes beyond the scope of the Universal Declaration by incorporating standards of humanitarian law and including new rights never before protected by an international treaty on human rights.( 6 )
8. In accordance with the Convention on the Rights of the Child, the States parties have the obligation to respect and ensure for each child within their jurisdictions the rights established in the Convention without distinction as to race, color, sex, language, region, political opinions, nationality, ethnic or social origin, property, incapacity or any other status of the child, his parents, or his legal guardians.( 7 )
9. The Convention on the Rights of the Child establishes that the States parties have the obligation to guarantee the creation of institutions and services for the care of the child( 8 ) and to adopt legislative, administrative, social, and educational measures to protect children from all forms of physical or mental violence, bodily harm, or abuse, negligent treatment, mistreatment, or exploitation, including sexual abuse, during the time they remain under the care of their parents, legal guardians, or any other person who has them within his/her charge.( 9 )
2. National Legislation
10. Colombian national legislation on the child has changed over the years, mainly due to the different conceptions that have existed with respect to the principles that should be included in such legislation. Law 7 of 1979 established basic principles for the protection of the child, set up a National Family Welfare System and reorganized the Colombian Family Welfare Institute. At the present time, the main legislation on the child is the Code for Minors passed in 1989, pursuant to Decree Law 2737. This Code reevaluated a number of earlier provisions and consolidated legislation in the areas of health, education, work, social assistance, and reeducation of the child.
11. In 1991, Colombia adopted a new Constitution, "which established the rights of the child as fundamental rights, made the State, society, and the family directly responsible for enforcing them, established integral protection and fully integrated the philosophy and theoretical framework of the International Convention on the Rights of the Child".( 10 )
12. Article 44 of the Constitution states that:
The fundamental rights of the child include: life, physical integrity, health and social security, a balanced diet, name and nationality, a family and the right not to be separated from it, care and love, education and culture, recreation, and free expression of opinion. The child shall be protected from all forms of abandonment, physical or emotional violence, abduction, sale, sexual abuse, labor or economic exploitation, and hazardous work. The child shall further enjoy all other rights established in the Constitution, the law and the international treaties ratified by Colombia.
The same article declares that "the rights of the child shall prevail over the rights of others".
13. Since 1991, a number of special laws have been enacted for specific situations, such as Law 25 of 1992 regulating dietary obligations, personal care of children and visitation rights, and Law 48, also of 1992, on recruitment in the military and military service. In its observations to this Report, the State named several other laws that have been promulgated in order to better protect the rights of children: Law 294 of 1996 includes provisions designed to prevent, remedy and sanction domestic violence; Law 311 of 1996 creates the National Registry for Family Protection which will include the names of individuals who have failed to pay child support; Law 360 of 1997 makes certain changes to the laws regarding sex crimes.
14. However, the 1989 Code for Minors, currently in force, is based on the theory of "irregular situations," whose principles are at variance with the doctrine of "integral protection", which guides both the Convention on the Rights of the Child and the 1991 Colombian Constitution. In accordance with the theory of irregular situations, the child is conceived as a subject of the law, to whom the State must offer protection, provided that the child has been declared to be in an irregular situation. For the mechanisms of protection provided under the law to function, the child must be outside of the protection of the law. Under this regime, the child "is conceived as a being who is incompetent as an individual and socially alienated",( 11 ) who needs protection but not as an individual with full rights.
15. In contrast, the 1991 Constitution opts for the modern theory of "integral protection," since it has granted constitutional scope to the rights of the child, giving them the character of priority rights and has imposed on the family, society, and the State the obligation of guaranteeing the child harmonious and integral development and the full exercise of his rights. Similarly, when Colombia ratified the Convention on the Rights of the Child in 1991, the country assumed responsibility for guaranteeing the enforcement of all rights established therein.
16. A draft Children's Code was recently introduced to the Colombian Congress to replace the present Code of Minors. The new draft Code is conceived under the parameters of the theory of integral protection of the child. According to the rationale for this bill:
To assume integral protection involves the commitment to offer the child population effective access to public services that guarantee the fundamental rights through a focus on the basic needs of each citizen. With respect to children, it means guaranteeing the necessary conditions for the integral development of each child.( 12 )
17. The Commission expresses its concern regarding the information provided by the State which indicates that the Colombian Congress decided to terminate its consideration of the draft Children's Code.
C. STREET CHILDREN
1. The Situation of Street Children
18. One of the most serious problems that has come to the Commission's attention affecting children in Colombia concerns street children, who are adversely affected by extremely serious circumstances of different kinds.
19. There are a large number of children in Colombia who make the streets their permanent home, and many more who roam the streets by day and return home at night. In examining this phenomenon, one must first try to identify some of the immediate causes of the problem.
20. Some authors have divided these causes into four basic types: Socio-cultural - the social differences and the inequitable distribution of wealth produces a great number of poor people who fight for survival. These people include boys and girls who pursue productive activities to ensure their survival and to help their families; Violence - many street children are forced out of their homes by the violence that prevails in the countryside and in poor neighborhoods in cities; Family - the street child's family is usually a highly dysfunctional one pervaded by physical and verbal aggression. Such a family easily expels the child from its nucleus; and Educational - schools in poor neighborhoods are unable to adjust to the demands and expectations of children. They are exclusive and intolerant and unable to understand the reality surrounding the children and their families.( 13 )
21. Apart from the proximate and immediate causes of the complex problem of Colombian street children, it must be understood that, as some authors have correctly pointed out:
The problems affecting street children go beyond isolated pathological situations. They reflect a total economic imbalance and a breakdown in the structure of society that could be compared to a time bomb if preventive and corrective measures are not soon taken.( 14 )
22. Street children in Colombia have been divided into five distinct groups: Workers - forming the largest group, they are engaged in informal economic activities such as selling cigarettes and candy; Delinquents - the members of this group engage in theft and armed robbery. They are extremely aggressive and generally return to their homes after committing their illegal activities; Beggars - this group accounts for a significant number of street children, who beg for money. They are often pressured into doing so by their families as a means of supplementing household income; Sexually exploited - although some members of this group are boys, by far the majority are girls, who adapt to this livelihood as a means of survival in the street. Their decision to do so is based on the need for money and protection; The typical street urchin - the members of this group are distinguished by their rags, their tendency to live in the most depressed parts of the city, and the use of psychedelic drugs, particularly hash, marijuana, and cocaine.( 15 ) Many children exhibit characteristics that could apply to one or more groups, such as, for example, delinquents and the typical street urchin.( 16 )
23. Many street children take drugs regularly and are not the least aware of the harm being done to them. The drug becomes part of their subculture. Of course, there are different factors that characterize the problem. To be admitted to the group, the child needs to take drugs as a kind of act of brotherhood with the other members of the group. The drugs also function as an escape to bear the hard world of the street: drugs help the child to "forget" that he is hungry, cold, and afraid.( 17 ) By day, the drug also fulfills the function of pastime since drug use gives the child the idea that time is passing more quickly; and by night it helps the child to sleep in the street.
2. Obligations of the State
24. The right of the child to the measures of protection that his condition as a minor calls for places on the State an obligation to take steps to prevent children from being compelled to become street children. In this sense, the Convention on the Rights of the Child recognizes the right of the child "to a standard of living adequate for the child's physical, mental, spiritual, moral, and social development".( 18 ) As noted earlier, poverty and the inability to satisfy basic needs are often reasons why children turn to the street.
25. The American Convention and the Convention on the Rights of the Child provide that the family is responsible for guaranteeing the child's living condition. Nevertheless, these instruments also set out a role for the State in protecting the child. According to the Convention on the Rights of the Child, the States parties "shall take appropriate measures to assist parents . . . to implement this right [to an appropriate standard of living] and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing, and housing."( 19 )
26. Accordingly, the Colombian State has the obligation to intervene to satisfy the basic needs of the child, when his family is not in a condition to do so, before the child is forced to go out into the street because he does not have a roof over his head or to seek money, through work, theft, or begging in order to feed himself.
27. The Commission recognizes that the duty of the State is one of making every effort to afford full protection, in accordance with its possibilities. Thus, the Convention on the Rights of the Child outlines the measures that must be taken by the State to guarantee the best possible nutrition and housing "in accordance with national conditions and within their means."( 20 ) Moreover, with respect to economic and social rights in general, the American Convention commits the States to taking measures "with a view to achieving progressively . . . the full realization of [those] rights."( 21 )
28. The nature of the State's duty explained in the preceding paragraph does not imply that a specific obligation does not exist. Given that children are in need of special protection in view of their conditions as minors, the duty of guaranteeing them a suitable living standard must be accorded priority in State programs and public spending. Based on the information received by the Commission on the seriousness of the problem of street children, recognized by the State authorities themselves, and the status of State resources, it cannot be concluded that the State of Colombia is discharging fully its responsibilities in this regard.
29. In addition to guaranteeing a suitable living standard for the child, the Colombian State has the obligation to fight against the other causes of the phenomenon of street children. For instance, the Convention on the Rights of the Child requires that the State guarantee compulsory primary education free of charge, make higher learning accessible to all and take steps to promote regular attendance at school.( 22 ) The Convention also establishes that the State must take the necessary steps to "protect the child against any form of harm or physical or mental abuse, neglect or negligent treatment... so long as the child is in the custody of his parents, a legal representative, or any other person who has the child in his charge".( 23 ) The Commission is of the view that the Colombian State can stop the migration of children to the streets through the strict application of these obligations.
30. The Commission notes that, in addition to preventing children from taking to the streets, the State also has the obligation to provide special protection to minors who have already become street children. For children in the streets, living conditions are even more precarious, underscoring the evident need for intervention and assistance by the State. Furthermore, street children are exposed to numerous dangers. For instance, as explained before, street children tend to take narcotics and other drugs.( 24 ) It is the State's duty to prevent these dangers, particularly through measures that take children off the streets.
31. According to information received by the Commission, the State of Colombia has not taken effective measures to guarantee the rights of children now in the streets. Most shelters and other establishments that provide services to street children are private. Far from receiving protection from the Colombian State with a view to improving their situation, many street children are victimized, mistreated, and even murdered, sometimes by agents of the State itself.
3. Violence against Street Children
32. Street children are continually subjected to verbal, physical, and sexual abuse. During its visit to Medellín, in the Department of Antioquia, the Commission interviewed minors who had lived and/or worked in the streets. These minors described to the Commission numerous incidents of violence, most of which had been at the hands of the Colombian National Police. For instance, the Commission learned of cases in which teenage prostitutes on the street had been beaten and raped by members of the police force.
33. In addition to violence and mistreatment, street children face the threat of being murdered through a deplorable practice known as "social cleansing", a euphemism for extermination by extrajudicial killing sometimes attributed to the police.( 25 ) The magnitude of the problem makes it even more alarming: it is estimated that every day seven children are murdered in Colombia.( 26 ) Some experts have calculated that street children account for 44% of this figure.
34. Many of the murders of street children are committed by private individuals. These cases, for which the State is not originally responsible, frequently may become human rights violations, since the State apparatus does not investigate or punish those responsible.
35. In other cases, paramilitary groups or paid "social cleansing" groups commit the murders. The Commission has been informed that, in many cases, agents of the State collaborate in these murders or incur in omission by failing to act to prevent them.( 27 ) Some of the groups involved in "social cleansing" hire children as bands of assassins in order to carry out their deathly task, thereby producing a situation in which children are killing other children.( 28 )
36. The Commission has been informed that investigations of the extrajudicial killing of minors attributed to members of the National Police are usually conducted by military rather than civilian courts, thus denying due process and judicial protection to the victims and their families.( 29 ) Hence, Court 89 of the Military Criminal Justice System took jurisdiction over the investigation of the death of Rummenigge Perea, a child of 12, whose murder was alleged to have been committed by members of the National Police of the city of Cali. Military courts are not independent courts that carry out serious and impartial investigations of flagrant human rights violations committed by members of the military or the police, such as the extrajudicial killing of street children.
D. CHILD LABOR
37. According to the statistics provided by the Colombian State, from 15% to 20% of children between the ages of 5 and 18 work.( 30 ) According to the information provided by the State, the most recent governmental statistics, published in November 1998, place the number of working children between 12 and 17 years of age at more than 1 million. These governmental statistics show that there was an overall decrease between 1992 and 1996 in the number of children who work.
38. Reports received by the Commission from non-governmental sources indicate that approximately 2.5 million children in Colombia between the ages of 6 and 17 are victims of labor exploitation. One half of these children are not paid any wages and the remainder receive less than the minimum wage, or say, less than 85,000 pesos per month (equivalent to approximately US$80). Twenty percent of child workers carry out high risk activities, some of which are legal (mining, construction, rock and sand extraction, garbage collection, etc.),( 31 ) and others illegal, such as work as hired killers.
39. A study conducted by the Ministry of Labor and Social Security asserts that:
The conditions of extreme poverty in which a very high percentage of our population lives is one of the principal causes of child labor. In addition, we find other factors such as the breakdown of the family unit, which causes the child at a very early age to assume responsibility for supporting himself and his family, because he has been abandoned by his parents or is a victim of domestic violence and because of instability or breakdown of the family. There is also another factor of a social and cultural nature, namely poverty, which causes child labor to become a question of survival.( 32 )
40. Poverty and hunger suffered by the child himself and his family are reasons that force the child, rather than going to school and learning to prepare to perform his role as an adult in a dignified way and rather than being with his family, which should also be the appropriate space for the child's personal, emotional, and intellectual growth, to carry out for the most part informal work, in a situation characterized by:
o Work days that are longer than what is permitted by law;
o Wages below the statutory minimum;
o Without access to transport;
o Without permission to work;
o Without social security, with risks to his physical, mental, and social health;
o Without access to formal education;
o Exploited by his parents themselves or other adults;
o Without social benefits: severance, interest on severance, services, work
clothes and shoes, death benefits, vacations.
o Without maternity benefits;
o Without suitable conditions in which to perform his work;
o Faced with risks to life and health.( 33 )
41. The Commission agrees with the conclusion of UNICEF's Regional Office that child labor is the greatest risk to well-being and normal development of the child.( 34 )
42. The Commission notes that the Convention on the Rights of the Child does not establish a minimum age for work, requiring only that the State set a minimum age in their internal legislation. However, the international community tends to suggest that child labor should be eliminated completely, for children under the age of 12.( 35 ) For example, the 1973 Minimum Age Convention 138 of the International Labour Organization provides that the minimum age for admission to employment established in domestic legislation "shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years."( 36 ) The Convention establishes several exceptions to this general rule but absolutely prohibits the incorporation into the work force of children under twelve years of age.( 37 )
43. The Children's Code of Colombia follows this tendency, and prohibits, in general, work by children under 14. The Code provides that, in special cases, children between the ages of 12 and 14 may be given permission to work.
44. However, there is no effective control in practice to ensure that children under 14 years of age do not work. The new government statistics indicate that, for children between the ages of 7 and 11, one out of every 55 children in the city works and one out of every 11 in the country works.
45. The Convention on the Rights of the Child does guarantee the right of the child to be protected from economic exploitation and the performance of any work that may be hazardous or may interfere with his education or that is harmful to his health or development.( 38 ) Similarly, institutions such as UNICEF have insisted on the need to totally eliminate child labor, regardless of age, in the case of illegal or dangerous work.( 39 )
46. Colombian legislation seeks to guarantee the right of the child to be free from economic exploitation and hazardous work. The Code of Minors establishes, for example, limits on work schedules for children, and prohibits children from engaging in certain kinds of work considered hazardous, etc. Nonetheless, the Commission has also learned from reliable sources that many minors work protracted hours, with compensation below the legal minimum wage, in conditions that are unsafe and hazardous.( 40 ) The State has recognized that the number of hours worked by minors has decreased but that a significant number of children under the age of 18 continue to work longer hours than those permitted by the law.
47. The Commission shares the view of the Regional Office of UNICEF that the two institutions that can effectively reduce the incidence of child labor in the region are schools and the family.( 41 ) Accordingly, measures taken by the State to provide protection should not be limited to legislation and punishment of child labor, but also to efforts to improve quantitatively, but qualitatively as well, the educational system and to provide economic support for families.
E. CHILD VICTIMS OF THE ARMED CONFLICT
48. Another serious problem affecting children in Colombia has to do with the internal armed conflict. This conflict and the resulting forced displacement of entire families have a direct impact on young boys and girls. Some of the most serious of these effects are migration, since children and their families are often forced to leave the areas of conflict, and the recruitment of children, which forces the child to become directly involved in the conflict, often leading to his death.
1. Displaced Children
49. Although the Commission examines forced displacement more extensively in the pertinent Chapter of this Report, it is important to note here that the armed conflict in Colombia and the resulting situation of displacement has a direct and serious impact on the situation of children. According to a study performed by UNICEF, there are approximately 520,000 displaced children as a result of the armed conflict.( 42 ) Although it has been said that there is no way to understand the psychological and moral devastation that the war causes to children, at the social level, the abandonment of the home and the (usually peasant) family's regular economic activities means that the children must leave their friends, their loved ones, their school, their customs, and the traditional values of their milieu and must begin to establish themselves as social beings in a new environment, that is socially, culturally, and economically different from the one they are used to.( 43 )
50. As to the family structure, the armed conflict and the resulting situation of displacement has the effect of eventually disrupting or destroying the family. It has been estimated that 60% of displaced children were forced to flee with other members of their families whereas 63% confirm that at least one member of their family was murdered or was a victim of an attempt on his life. With respect to the quality of life, the displaced child is usually in extremely needy conditions, because his parents are unemployed or because of malnutrition, disease, and other factors that can cause the quality of life of children to deteriorate radically in these circumstances.( 44 )
51. Although in July 1997, the Congress of Colombia passed Law 387 for the prevention and care of the displaced population, critics of this law state that:
It gives no consideration to care for displaced children and to guarantee their rights, and does not take any steps in this regard. Matters such as health care, proper diet, return to school, psychological recovery or recreation are not dealt with in the law and are not part of State policy on care, which increases the factors of emotional disturbance coincident and subsequent to displacement for children and child victims of this serious human rights violation.( 45 )
2. Recruitment of Children
52. It has been asserted rightly that "one would have to be blind not to see that children are physically and psychologically unprepared to participate directly or indirectly in armed conflicts." Many children are involved, however, in the war "as active members of one or other group, as human shields, messengers, spies, or carriers in the transport of arms and placement of bombs".( 46 )
53. The recruitment of children under 15 years of age is prohibited under international law, although minors between the ages of 15 and 18 may be inducted into the armed forces. In accordance with Protocol II of international humanitarian law, children under 15 may not be recruited into the armed forces.( 47 ) The Convention on the Rights of the Child favors recruitment of persons over 18 although it stipulates that 15 is the minimum age for recruitment to the armed forces.( 48 )
54. The Commission notes that, upon ratification of the Convention on the Rights of the Child in 1991, the Colombian State formulated a reservation to the article permitting the recruitment of all minors over 15 years of age, and established 18 as the minimum age for recruitment in Colombia. The Colombian Army continued, however, to recruit minors under 18 years of age and on August 2, 1996, the reservation was withdrawn.
55. At the present time, the Colombian Army permits the recruitment of minors. Article 10 of Law 48 of 1993 specifies that "all Colombian males are required to define their military status (i.e. register to be called to service) upon attaining the age of majority, with the exception of secondary school students, who become eligible upon graduation." Hence, Law 48 permits the recruitment of minors who complete their secondary school studies before the age of 18. Recently, the Colombian State decided to restrict the recruitment of minors and enacted new legislation, whereby grade 11 secondary school students that had not yet reached the age of 18 and who are selected for military service, may postpone such service until the age of 18. The new law nonetheless provides for the possibility that minors, who wish to do so voluntarily, may carry out their military service immediately, even before the age of 18 with the written authorization of their parents.( 49 )
56. The legality of the recruitment of minors between the ages of 15 and 18 notwithstanding, the guarantee of special protection for minors still applies. Accordingly, minors who are recruited are not to receive the same treatment as recruits over the age of 18. The Convention on the Rights of the Child establishes that for recruits between the ages of 15 and 18 the States Parties shall give preference to those who are older.( 50 ) The Commission understands, also, that the obligation to provide special protection to minors calls for precautions to be taken to ensure that recruits under the age of 18 are not assigned to combat duty.
57. Colombian law does not stipulate that, for purposes of recruitment, individuals over the age of 18 should be given preference over minors. Accordingly, minors under the age of 18 who have completed their secondary school studies are just as likely to be recruited as individuals over the age of 18. The 1997 legislation seeks to remedy this situation by allowing minors who are drafted to postpone their military service. However, it is probable that many minors choose to perform their military service immediately upon completing secondary school, without postponing their recruitment, so as not to subsequently interrupt their university studies after they have reached the age of 18.
58. In theory, Colombian law sets limits on the type of work that minors who are recruited for military service may perform. According to the legislation in force, minors must be assigned to areas of support services, logistics, administrative services, and social services. The Constitutional Court of Colombia has also held that "soldiers who are minors, as a general rule may not be allowed to participate in combat."( 51 ) However, the Commission has learned from reliable sources that, in practice, minors are assigned in certain cases to combat zones.
59. It has also been reported that some units of the army use minors who have deserted from the guerrillas to obtain information leading to the capture of guerrillas, the seizure of arms, etc.( 52 ) These minors are inducted into the armed forces instead of being taken to court for trial. Sometimes, they remain in uniform on military bases.
60. Also, the Commission has been informed that paramilitary and armed dissident groups include young girls and boys, many of whom are under the age of 15, in their ranks. These minors are often recruited under duress.
61. Although the armed dissident groups publicly deny the recruitment of minors, this practice becomes evident when children are reported captured or killed in action. It was reported that between October 1995 and September 1996, 17 minors took part in guerrilla actions in the armed conflict.( 53 )
62. With respect to recruitment of minors by paramilitary groups, a report by the Office of the Human Rights Ombudsman estimates that approximately 15% of the members of these groups are minors. The report further affirms that, in some areas, the percentage rises to as much as 50%.( 54 ) The Commission has also been informed that paramilitary groups go to low-income areas or camps of displaced persons, offering sums of money to attract children to their ranks. For instance, in a single day in September 1997, members of the Peasant Self'-Defense Organizations of Córdoba and Urabá (Autodefensas Campesinas de Córdoba and Urabá - "ACCU") paramilitary group recruited, with offers of money, 50 minors from the Policarpa neighborhood of Apartadó. According to information received by the Commission, in other cases, the paramilitary groups simply carry off the children by force.
63. When groups of armed dissidents and paramilitary groups induct children under 15 into their units, they are violating the principles of international humanitarian law. Both paramilitary groups and armed dissidents have suggested that they are prepared to negotiate the possibility of excluding minors from the armed conflict. On July 15, 1998, the National Liberation Army (Ejército de Liberación Nacional - "ELN") signed a humanitarian agreement, whereby the dissident organization undertook to refrain from inducting children under 16 years of age for permanent military service. However, neither the paramilitary groups nor the armed dissidents have yet taken definitive concrete steps to exclude minors from their ranks.
64. It should be added that the fact that parents give their consent for their children to join the armed forces of the different parties in the internal conflict in Colombia does not absolve the participants from responsibility when the provisions of international human rights law and international humanitarian law on the recruitment of minors are violated.
65. The practice of the participants in the armed conflict of inducting children into military ranks causes the parties in the conflict to treat these children as combatants subject to attack, with the result that children die in combat every year. The practice also has an adverse effect on the lives of children who have not participated directly in the armed conflict. These children are often threatened, abducted, or murdered by armed groups who believe that they have collaborated with the enemy. These groups justify their acts against children on grounds that there do exist children in the ranks of the armed groups.
F. PROTECTION OF CHILDREN
66. Major studies conducted recently by non-governmental organizations concerning protection of children conclude that in Colombia there is no organized system of family welfare and that family service agencies are not very efficient, and they do not coordinate their efforts with one another. It was also concluded that there are no policies or procedures specifically directed at children.( 55 ) An analysis of the administration of justice in relation to children also concluded, after studying Police Stations, Defenders' Offices, and Family Courts, that the family jurisdiction is chaotic and therefore in need of immediate reform.( 56 )
67. For its part, the State has recognized that the system of family welfare in Colombia has not yet been consolidated, even though it was first legally established by Law 7 in 1979. The State points out that there nonetheless exist a number of strategies and institutions dedicated to improving the situation which children face. In this regard, the State emphasizes the work of the Colombian Family Welfare Institute, the government entity that heads the family welfare system. All of the various organisms and entities that provide assistance to minors form part of the Institute. According to the State, the laws which govern the activities of the Institute establish clearly the functions of this agency, which relate to the development of policies for protecting children and guaranteeing their rights. The State also provided information regarding the attention that the Colombian Family Welfare Institute provides each year to close to 200 youths who have renounced their involvement in the armed conflict. Finally, the State made reference to the work of the Delegate Procurator for Minors and the Family. The work of the Delegate Procurator includes the creation of Networks for Prevention and Attention for Abused Children throughout the country. The Commission is grateful for this information and will continue to analyze the administrative and judicial attention given to the rights of children.
G. RECOMMENDATIONS
On the basis of the foregoing, the Commission makes the following recommendations to the State of Colombia, some of which are based on those made by the United Nations Committee on the Rights of the Child:( 57 )
1.
The State should accord due importance and priority to the issue of the rights
of the child. To this end, it needs to be considered that many of the measures
needed for children do not require substantial financial investment so much
as a sincere acknowledgement of the problem and a serious political and social
commitment to resolve it by means of concerted policies for the short, medium,
and long term.
2.
The State should take steps to disseminate broadly the rights of the child,
particularly amongst children themselves, parents, the defenders of children,
teachers, judges, the police, the military, professional groups that work with
or for children, and in general all officials concerned with this matter.
3.
The State should establish a system to coordinate children's programs and
to consolidate the National System of Family Welfare, with a view to achieving
effective coordination between the institutions involved with the rights of
the child. To this end, it is important that quantitative and qualitative information
be gathered and analyzed systematically to evaluate the progress that has been
made.
4.
The State should grant due importance to the efforts being pursued by non-governmental
human rights organizations and other members of civil society on behalf of the
rights of the child and should support and recognize this work. State agencies
should be encouraged to listen to these organizations and to allow them, insofar
as is possible, to participate in designing, preparing, and implementing State
policies for the rights of the child.
5.
The State should take strong steps to guarantee the right to life of all children
in Colombia. Such steps should include measures that guarantee effective protection
of the rights of the child against acts of murder and violations of physical
integrity, and assurances that such acts will be investigated in a serious,
impartial and effective manner by civilian courts and severely sanctioned.
6.
The State should carefully study its system of recruitment for the Military
Forces, taking into account the special protection that must be accorded to
minors.
7.
The State should take appropriate steps, as available resources permit, to
allocate sufficient funding from the budget to services for children, particularly
in the areas of education and health.
8.
The State should incorporate children currently not receiving school instruction
into the education system and should reevaluate the objectives, methods, and
other parameters for education that is being imparted to children.
9.
The State should ensure observance of the legal provisions for the protection
of the working child.
10.
The State should strengthen the programs established to protect children from
the internal armed conflict and should design new programs to protect these
children.
11.
The State should adopt and implement the necessary reforms to the family jurisdiction.
Notes_____________
( 1 ) Humanidad Vigente, Situation of the human rights of children in Colombia, 1997, at 1.
( 2 ) Minister of Justice and Law, General Directorate for Prevention and Conciliation. Brief on the Rationale of Draft Legislation for a New Children's Code to Replace Decree 2737/89, Code of Minors, 1997, at 1 [hereinafter Brief on Draft Legislation]. The Commission should stress that the figures given by nongovernmental organizations are different. For instance, Humanidad Vigente estimates that 30,000 children between the ages of 7 and 14 live in the streets.
( 4 ) The need to focus special attention on the situation of children was originally acknowledged in the 1924 Geneva Declaration of the Rights of the Child, and subsequently in the Declaration on the Rights of the Child adopted by the United Nations General Assembly in 1959. The general instruments on human rights, as well as certain instruments emanating from specialized agencies, such as the International Labor Organization ("ILO"), contain provisions on the rights of the child. The most important ILO instrument on this issue is the Minimum Age Convention 138 of 1973. That instrument provides that the States Parties undertake "to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons."
( 5 ) The Convention on the Rights of the Child defines a child as any human being under the age of 18, except where the age of majority is earlier under applicable law. The competence of the Commission to refer to international treaties on human rights other than the American Convention, such as the Convention on the Rights of the Child, is based on the text of the American Convention, specifically article 29(b), and has been confirmed by the Inter-American Court of Human Rights. The Commission explains in depth its competence in this area in Chapter IV of this Report. The Commission has already invoked the Convention on the Rights of the Child in other situations. See, e.g., Annual Report of the Inter-American Commission on Human Rights1992-1993, OEA/Ser.G, CP/CAJP-894/93, March 29, 1992, at 254.0
( 6 ) Cynthia Price Cohen, The Developing Jurisprudence of the Rights of the Child, in St. Thomas Law Review, Volume 6, 1993, at18.
( 9 ) See Art. 19. In accordance with this same provision, such measures must include effective procedures to establish social programs to endow the child and those responsible for his care with the necessary support in identifying, reporting, investigating, treating, and monitoring the forms of violence described above, and for judicial intervention.
( 10 ) Brief on Draft Legislation, at.8.
( 13 ) Jaime Zuluaga Soto, The Rights of Street Children Also Take Precedence over the Rights of Others, Ciudad Don Bosco, 1997.
( 14 ) Bermy Grisales and Corporación Primavera Interdisciplinary Team, La Niña de la Calle, in Regional Seminar: Street Children, Ciudad Don Bosco, 1995, at 46.
( 15 ) Zuluaga Soto, at 3. Although the author is referring specifically to the children of Medellín, these categories are also considered to apply to all other children in Colombia's principal cities.
( 16 ) The State informed the Commission that it uses one general category of "street inhabitants" to refer to all children and youths that live on the streets. The State treats children who work on the streets but who maintain ties to their families and homes as "children at risk of becoming street inhabitants."
( 22 ) See Art. 28. The Commission notes that, pursuant to Article 67 of the Colombian Constitution, education is compulsory and free for children between the ages of five and fifteen years of age. However, the drop out rate is extremely high even during the years that school attendance is compulsory. See Comisión Colombiana de Juristas, Colombia, Human Rights and Humanitarian Rights: 1996, at 172 [hereinafter 1996 Comisión Colombiana Report]. The Colombian State has apparently not adopted important measures to promote attendance at school.
( 24 ) The Convention on the Rights of the Child explicitly states that the States parties "shall take all appropriate measures . . . to protect children from the illicit use of narcotic drugs and psychotropic substances." Art. 33.
( 25 ) Humanidad Vigente, at 3.
( 26 ) "Caos en Amparo Judicial al Menor", El Tiempo, March 16, 1998.
( 27 ) The Commission examines in greater detail the relationship between paramilitary groups and State’s security forces in Chapter IV of this Report.
( 28 ) Humanidad Vigente, at 3-4.
( 29 ) The Commission studies in greater depth the issue of military criminal justice in Chapter V of this Report.
( 30 ) Application of the International Covenant on Economic, Social, and Cultural Rights, Third Periodic Reports Presented by the States parties, pursuant to Articles 16 and 17 of the Covenant, August 1, 1994, United Nations, No.E/1994/104/Add.2, par. 439, at 115.
( 31 ) Humanidad Vigente, at 3.
( 32 ) Johnny Alberto Jiménez Pinto and Astrid Espinosa Moreno, Ministry of Labor and Social Security, El Menor de la Calle Trabajador, in Regional Seminar: Street Children, Ciudad Don Bosco, 1995, at 26.
( 34 ) Bjorn Pettersson, UNICEF, Regional Office for Latin America and the Caribbean, State Policies for the Protection of Children in Latin America, in Minors under Protection, Seminar, Memorias, Ciudad Don Bosco, 1996, at 16.
( 37 ) The Colombian State has not ratified Convention 138. However, the Commission considers that it is nonetheless useful to study the Convention in order to analyze international trends in relation to this issue. The Commission takes note of the fact that the Colombian State has ratified other ILO conventions regarding minimum working age. These conventions include the Minimum Age Convention (Industry) 5 of 1919 and the Minimum Age Convention (Agriculture) 10 of 1921. In this manner, Colombia has shown its interest in the international standards developed in this area.
( 40 ) See, e.g., Report of the United Nations High Commission for Human Rights, E/CN.4/1998/16, March 9, 1998, par. 82.
( 43 ) Jaime Zuluaga Soto, Los Niños, La Guerra, y el Desplazamiento, in Menor en Protección, Seminar, Ciudad Don Bosco, 1996, at 3.
( 45 ) Humanidad Vigente, at 2.
( 49 ) See Law 418 of 1997, Art. 13.
( 51 ) See Decision SU-200, February 3, 1997.
( 52 )1996 Comisión Colombiana Report, at 78.
( 54 ) See Office of the Human Rights Ombudsman, The armed conflict in Colombia and minors, System of follow up and supervision - children and their rights, Bulletin 2, May 1996.
( 55 ) See "Caos en Amparo Judicial al Menor", El Tiempo, Electronic version of March 16, 1998.
( 57 ) These recommendations are contained in the Final Observations of the Committee on Children's Rights with respect to the Report on the Status of Children's Rights in Colombia presented by the State of Colombia to the Committee, in accordance with Article 44 of the Convention on the Rights of the Child. These final observations may be found in: United Nations, Convention on the Rights of the Child, Document CRC/C/15/Add.30, February 15, 1995.