Court/Judicial body: Inter-American Court of Human Rights
Date: September 15, 2005 CRC
Provisions: Article 6: Survival and development Article 37: Torture and deprivation of liberty Article 38: Armed conflicts Article 39: Rehabilitative care
Other international provisions:American Convention of Human Rights (the “American Convention”) ( Article 1(1): Obligation to respect rights; Article 4: Right to life; Article 5: Right to humane treatment; Article 7: Right to personal liberty; Article 8: Right to a fair trial; Article 19: Rights of the child; Article 22: Freedom of movement and residence; Article 25: Right to judicial protection)Protocol II to the Geneva Conventions (Protection of victims of non-international armed conflicts)
Domestic provisions:Political Constitution of the Republic of Colombia ( Article 44: Rights of children)
Background: Between July 15 and 20, 1997, members of the illegal paramilitary group called Autodefensas Unidas de Colombia (“AUC”), with the collaboration, aid and acquiescence of members of the Colombian army and other Colombian agents, took control of the town of Mapiripán, Colombia, which is known for its strategic position in the cocaine business. The paramilitary forces kidnapped, tortured and killed approximately 49 members of the community, including some children, and intimidated others, causing widespread displacement among the people of the area. The Inter-American Commission on Human Rights filed an application with the Inter-American Court of Human Rights, alleging that Colombia violated the American Convention of Human Rights in connection with the massacre at Mapiripán, which was conducted with the support and tolerance of Colombian officials. Colombia acknowledged responsibility for the violation of Article 4 (right to life), Article 5 (right to humane treatment) and Article 7 (right to personal liberty) of the American Convention in connection with the massacre. However, Colombia denied violating other human rights under the American Convention, including the right of children to special protection as stated in Article 19, which states, “[e]very 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.”
Issue and resolution: Armed conflict; right of the child to special protection. The Court found that Colombia violated the right of children under Article 19 of the American Convention, in combination with the rights to life, humane treatment and freedom of movement and residence under Articles 4(1), 5(1) and 22(1), by failing to protect the children of Mapiripán before, during and after the massacre and in connection with the displacement of many such children. In handing down its judgment, the Court ordered Colombia to, among other things, compensate the victims of the massacre and their families, fully investigate the massacre in order to identify the perpetrators as well as any unknown victims, provide victims and their families with free healthcare, build a monument dedicated to the victims of the massacre, and introduce programs to educate members of the Colombian Armed Forces on human rights and international humanitarian law.
Court reasoning: Noting that cases involving human rights violations against children are especially grave, the Court found that Article 19 of the American Convention provides children with a “complementary right” to special protection due to their vulnerability, especially in domestic armed conflict situations, and in the interest of their physical and emotional development. Stating that the scope and content of Article 19 must be interpreted in light of the relevant provisions of the CRC (i.e., Articles 6 and 37-39) and other international instruments pertaining to the protection of children, the Court determined that Columbia has an obligation to prevent situations that might lead to a breach of the right to life of children within its borders. Despite being aware of the high degree of violence and domestic armed conflict in Mapiripán, Colombia failed to protect the children in the area, exposing them to a climate of violence and insecurity.
Excerpt citing CRC and other relevant human rights
150 . Article 19 of the American Convention establishes that “[e]very 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.”
151. The representatives argued that the [Colombia] had abridged Article 19 of the [American] Convention, which is not part of the acknowledgment by the State. In the instant case, minors Hugo Fernando and Diego Armando Martínez Contreras were executed in the massacre and others witnessed it. Furthermore, many of the displaced next of kin of the victims were children at the time of the facts and when they suffered the consequences of forced domestic displacement.
152. The Court deems that cases in which the victims of human rights violations are children are especially grave, as they “also [have] special rights derived from their condition, and these are accompanied by specific duties of the family, society, and the State.” Article 19 of the American Convention must be understood as a complementary right established by the treaty for human beings who due to their physical and emotional development require special protection measures. The principle of their higher interests, based on the very dignity of the human being, on the characteristics of children themselves, and “on the need to foster their development, making full use of their potential” applies in this regard.
153. The content and scope of Article 19 of the American Convention must be specified, in cases such as the instant one, taking into account the pertinent provisions of the Convention on the Rights of the Child, especially its Articles 6, 37, 38 and 39, and of Protocol II to the Geneva Conventions, as these instruments and the American Convention are part of a very comprehensive international corpus juris [(i.e. body of law)] for protection of children, which the States must respect. Together with the above, applying Article 29 of the Convention [(Restrictions Regarding Interpretation)], it is appropriate to consider the provisions set forth in Article 44 of the Political Constitution of the Republic of Colombia. In this regard, the Constitutional Court of Colombia has pointed out that: “Number 3 Article 4 of [Protocol II] grants privileged treatment to children, with the aim of providing them with the care and support they need, especially with regard to education and family unity. It also points out that minors under 15 will not be recruited by armed forces or groups and will not be allowed to participate in the hostilities. The Court deems that said special protection to children is fully in harmony with the Constitution, because not only are they in a clearly weak situation (PC Art. 13) in armed conflicts but the constitution also assigns the highest priority to the rights of children (PC Art. 44) […].”
154. Likewise, Articles 38 and 39 of the Convention on the Rights of the Child provide that: Article 381. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts, which are relevant to the child…. 4. In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict. Article 39States 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. [Footnotes in the original have been excluded from this excerpt.]
Follow up:On November 25, 2009, a Colombian court convicted retired Colombian army general Jaime Humberto Uscátegui of murder, kidnapping and falsifying public documents in connection with the Mapiripán massacre, sentencing him to 40 years in prison. In addition, the battalion commander who failed to halt the Mapiripán massacre, former colonel Hernán Orozco, was convicted of murder in 2007 and sentenced to 40 years in prison. See “Former Colombian general jailed for role in Mapiripán massacre”, The Guardian (Nov. 26, 2009), available at http://www.guardian.co.uk/world/2009/nov/26/former-colombian-general-jailed-massacre.
CRIN Comments: CRIN believes this decision is consistent with the CRC. Children are entitled to special care and protection in all circumstances and, as the Court recognised, governments must work to ensure that children’s rights are respected, especially in situations of emergency or conflict. Where these rights have been violated, as in this case, governments must also remedy these violations and be held responsible for providing children with all appropriate care to ensure that they are able to fully recover and develop as a part of society.
Citation: Mapiripán Massacre v. Colombia, Merits, reparations and costs, Inter-Am. Ct. H.R., Series C No. 134 (Sept. 15, 2005); IHRL 1518 (IACHR 2005).
Link to Full Judgment:http://www.corteidh.or.cr/docs/casos/articulos/seriec_134_ing.pdf