Court/Judicial body: Inter-American Court of Human Rights
Date: September 26, 2006 CRC
Provisions: Article 38: Armed conflictsOptional Protocol on the Involvement of Children in Armed Conflict
Other international provisions:American Convention on Human Rights ( Article 4: Right to Life; Article 5: Right to Human Treatment; Article 7: Right to Personal Liberty; Article 8: Right to a Fair Trial; Article 19: Rights of the Child; Article 25: Right to Judicial Protection)Inter-American Convention to Prevent and Punish Torture ( Article 6: Taking Effective Measures to Prevent and Punish Torture; Article 8: Impartial Examination of Torture Accusers)Additional Protocols to the Geneva Conventions of August 12, 1949, on the protection of victims of international (Protocol I) or domestic (Protocol II) armed conflict Convention No. 182 of the International Labor Organization concerning the prohibition and immediate action for the elimination of the worst forms of child labor
Background: In January 1989, 15-year-old Gerardo Vargas Areco was recruited into military service in the Paraguayan Armed Forces. In December of that year, Vargas Areco was arrested for failing to return to his military post after a leave of absence to visit his family. On that same day, after leaving the military infirmary for treatment of a nosebleed, Vargas Areco fled the military encampment on foot, and a non-commissioned officer of the Paraguayan army shot and killed him while he was running.
Issue and resolution: Child soldiers. The Court found that Paraguay had violated Vargas Areco’s rights to human treatment, to a fair trial, and to judicial protection, and had also violated the right to life with respect to Vargas Areco’s family. The Court did not, however, have jurisdiction over alleged violations to Vargas Areco’s right to life or over Paraguay’s activities around recruiting children into the military in general. Paraguay was ordered – among other things – to compensate the victim’s family, make a public apology, implement training programs in human rights for the Armed Forces, and amend domestic legislation allowing the recruitment of minors under the age of 18 into the Armed Forces.
Court reasoning: Paraguay admitted to violating Vargas Areco and his family’s rights. Because Paraguay did not accept the jurisdiction of the Court until after Vargas Areco’s recruitment and death, however, the Court could not hear violations of Vargas Areco’s right to life directly, and instead focused on the impact that his death had had on his family. The Court also found that it could not hear claims surrounding the systematic recruitment of children in Paraguay as other child recruits were not party to the case, even though the Paraguayan government admitted to wide scale violations. The Court did, however, note Paraguay’s obligations to cease recruiting children under both Optional Protocol to the CRC on the involvement of children in armed conflict and the CRC itself.
Excerpt citing CRC and other relevant human rights 71(26). On September 27, 2002, Paraguay ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, and established that the minimum age for recruitment into Paraguayan military service was 16 years old. On March 14, 2006, the President of Paraguay signed a statement to substitute the one deposited with the ratification instrument, whereby it was established that voluntary or compulsory military service in Paraguay would not apply to minors under the age of 18. … 113. As to international humanitarian law, the Additional Protocols to the Geneva Conventions of August 12, 1949, on the protection of victims of international (Protocol I) or domestic (Protocol II) armed conflict establish the need to provide special protection for children. Protocol I establishes that “the Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them 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, the Parties to the conflict shall endeavor to give priority to those who are oldest.” As regards to fundamental rights, Article 4 of Protocol II sets forth that “[c]hildren shall be provided with the care and aid they require, and in particular […] children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.” … 116. On May 25, 2000, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict was approved. Said Protocol was ratified by Paraguay on September 27, 2002, through Law No. 1897 of May 22, 2002. 117 . Article 2 of said Protocol prohibits the compulsory recruitment of minors under the age of 18 into the armed forces. In exceptional cases of recruitment of minors between 15 and 18 years of age, Article 3 of the Protocol sets forth: 1 . States Parties shall raise the minimum age for the voluntary recruitment of persons into their national armed forces from that set out in Article 38, paragraph 3, of the Convention on the Rights of the Child, taking account of the principles contained in that Article and recognizing that under the Convention persons under the age of 18 years are end to special protection. 2 . Each State Party shall deposit a binding declaration upon ratification of or accession to the present Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced. 3 . States Parties that permit voluntary recruitment into their national armed forces under the age of 18 years shall maintain safeguards to ensure, as a minimum, that: a . Such recruitment is genuinely voluntary; b . Such recruitment is carried out with the informed consent of the person’s parents or legal guardians; c . Such persons are fully informed of the duties involved in such military service; d . Such persons provide reliable proof of age prior to acceptance into national military service. 118 . The State ratified said Protocol on September 27, 2002. Upon said ratification, as established in Article 3(2) of said treaty, the State deposited an instrument whereby it established that the minimum age for recruitment into the Paraguayan military service was 16. Nevertheless, on March 14, 2006, the President of the Republic signed a declaration that would replace the one deposited with the ratification instrument, whereby it was established that voluntary or compulsory military service in Paraguay would not apply to minors under the age of 18. … 120. Pursuant to these considerations, Article 3 of Convention No. 182 of the International Labor Organization concerning the prohibition and immediate action for the elimination of the worst forms of child labor, sets forth that forced or compulsory recruitment of children for use in armed conflict will be considered a form of slavery or practice similar to slavery, which must be eradicated.
CRIN comments: CRIN believes that this decision is consistent with the CRC and its Optional Protocol on the involvement of children in armed conflict in that States Parties to the Convention should be held responsible for recruiting children into their armed forces. While it is unfortunate that the Court was unable to hear challenges to the systematic recruitment of children into the Paraguayan military, it is a positive sign that Paraguay acknowledged violations in this regard nonetheless.
Citation: Case of Vargas Areco v. Paraguay. IACHR Series C no. 155; IHRL 1539 (IACHR 2006).
Link to full judgement: http://www.corteidh.or.cr/docs/casos/articulos/seriec_155_ing.doc (English)