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Conventionality Standards for Children in Conflict Zones: Colombian Case study

The main objective of this paper is to identify the multilevel perspective of hu-man rights protection for children in armed conflicts. For that, the pro persona or pro homine principle may be applied. It consists of an interpretative instru-ment provided by art. 29 of the American Convention of Human Rights and by art. 41 of the Convention on the Rights of the Child. The present analysis tackles distinct levels of protection, both at an international level and at the national level in Colombia and uses the pro homine principle to resolve eventual conflicts between the International Human Rights Law and domestic law.


Estándares de convencionalismo para niños en zonas de conflicto: estudio de caso en Colombia
RESUMEN El objetivo principal de este documento es identificar la perspectiva multinivel de la protección de los derechos humanos para niños en los conflictos armados. Para eso, se puede aplicar el principio pro persona o pro homine, un instrumento interpretativo que proporciona el art. 29 de la Convención Americana de Derechos Humanos y el art. 41 de la Convención sobre los Derechos del Niño. El presente análisis aborda distintos niveles de protección, tanto a nivel internacional como a nivel nacional en Colombia y utiliza el principio pro homine para resolver eventuales conflictos entre el derecho internacional de los derechos humanos y la legislación nacional.

INTRODUCTION
This paper focuses on the protection of children in cases of armed conflicts and the relation between distinct levels of protection and how to implement them, both at the international level and at Colombia's national level. The territory has suffered from an armed conflict for more than fifty years. There are countless juridical matters regarding the juridical status of the children involved, or of those who were recruited when they were children, which still need to be solved. Thus, the search for these binding rules comprehends legal standards derived from the global system headquartered at the United Nations; the Inter-American Human Rights System and the domestic legal system.
This multilevel setting constitutes a block of binding juridical rules formed by treaties and other international instruments, as well as by the interpretation given by the competent organs, composing the socalled "block of conventionality", which must be read alongside the Constitution, laws, peace agreements, jurisprudence etc.

CHILDREN IN CONFLICT ZONES: GLOBAL SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS
The first article of the UN Convention on the Rights of the Child, approved on November 2 nd of 1989, defines the age of 18 as the end of childhood, but does not establish when it begins (Brett, 2012). The person aged less than 18 years is considered a child, unless the law determines otherwise.
The special protection for children had already been mentioned in the Geneva Convention of 1949 (for protection of war victims) and its additional protocols (international and non-international armed conflicts) and was specifically discussed in the UN Convention on the Rights of the Child. Thus, in a non-international armed conflict, the art. 1 of the Additional Protocol II, which develops and complements the article 3, mutual to the Geneva Conventions of August 12 th of 1949, may be applied to every armed conflict which is not covered by article 1 of the Additional Protocol I to the Geneva Conventions of August 12 th of 1949, regarding the protection of victims of international armed conflicts. It must also be taken into account that the Additional Protocol II is not applied in cases of internal riots, isolated and occasional acts of violence, as well as other similar cases, which are not considered armed conflicts. The latter concerns the conflicts among the State and armed groups, or among armed groups themselves. An armed conflict, is, thus, a de facto situation, which may comprehend periods of truce and hostility (Aliverti, 2004). It is a situation where there is use of armed force among States, among a State and an organized group, or among armed organized groups within a State (Nemer Cladeira & Soares, 2009).
As previously mentioned, the States and armed groups cannot recruit individuals younger than 15 years old, nor can they put these persons to participate directly in the acts of war. The indirect participation, though, such as transmitting information or carrying guns in the international armed conflicts is not forbidden (Aliverti, 2004). On the other side, regarding the non-international armed conflicts, both the direct and the indirect participation of young under 15, such as gathering information, transmitting orders, carrying ammunition, supplies and practicing acts of sabotage, are forbidden (Dutli, 2003).
Recruiting and using children under 15 in the active participation of acts of war on international or non-international armed conflicts is considered a war crime (arts. 8.2 b), XXVI; 8.2 e), VII of the Rome Statute), whether practiced by States or groups. "Active participation" includes directly aiding in combat and military activities, such as patrol, espionage and sabotage, which includes the use of children as baits and messengers (Martuscelli, 2006, p. 12 After discussions on the Committee on the Rights of the Child, an Optional Protocol was proposed, regarding the involvement of children in armed conflicts. Also, a study on the impact of those conflicts was requested by the General Assembly 1 Article 38 affirms the following: "1. 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. 2. 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. 3. 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 endeavour to give priority to those who are oldest. 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 (UN, 1989).
of the UN (art. 45, c), Convention of the Rights of the Child, of the United Nations) (Brett, 2012).
This study, known as the "Machel Study", has contributed to the creation of a special rapporteur of the UN Secretariat on children in armed conflicts and the edition of specific resolutions by the UN On the other hand, the child soldiers benefit from the general protection of art. 75 of Protocol I, which establishes the fundamental guarantees for prisoners of war (Dutli, 2003) but there isn't the same level of protection when we talk about it not being the case of a non-international conflict, given the absence of the prisoner of war status. The ones who are captured in a non-international armed conflict, on the other hand, are protected by the art. 3 of the Geneva Convention of 1949 for people who do not or no longer participate in the acts of violence. The art. 4, paragraph 3 rd also provides other rights such as education and reunion with their families as well as the prohibition of the death penalty under art. 6, paragraph 6 (Dutli, 2003).

THE PROTECTION OF CHILDREN BY THE INTER-AMERICAN HUMAN RIGHTS SYSTEM
According to the art. 19 of the American Convention on Human Rights ("ACHR"), every child has the right to the measures of protection required by his/her condition as a minor on the part of his family, society, and the State (Brasil, 1992). These rights are better described in the art. 16 of the Additional Protocol of San Salvador: the right to grow under the protection and responsibility of his parents; save in exceptional, judicially-recognized circumstances, a child of young age ought not to be separated from his mother, and the right to free and compulsory education, at least in the elementary phase.

THE PRO PERSONA PRINCIPLE APPLIED TO CHILDREN
The Universal Declaration of Human Rights comprehends general principles destined to protect human dignity. The pro persona principle, in short, consists of an interpretative instrument developed by the legal doctrine and also established in the treaties. The main objective is to always seek the best protection for hu-man dignity. That means that if there is more than one rule applicable to a case, the one which preserves the right in the widest or in a less restrictive possible way, should prevail. That is the understanding of Mónica Pinto on the subject matter. The pro persona principle is a criterion that gives extensive interpretation to offer a broader protection and, inversely, most restricted interpretation when a rule establishes permanent restrictions or extraordinary suspension on the exercise of human rights (Pinto, 1997, p. 163).
Characterized as the maximal central hermeneutics for the interpretation of human rights, the pro persona principle broadens the exercise of every right, considers that the juridical rules do not exclude, but instead, complete each other. The application of this principle must be made in a contingent way, that is, in light of a conflict among two juridical rules, instead of the chronological, literal, hierarchical or specialty criteria, there must be a concurrent analysis, from which the interpretation that best protects human dignity will arise.
Although this concept comes from the legal doctrine, the pro persona principle is provided by several juridical instruments which are part of the International Human Rights Law. The principle is mentioned on art. 41 of the Convention on the Rights of the Child "Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child", and in the art. 29, b), of the American Convention on Human Rights (Brasil, 1992), which states that no provision of the Convention shall be interpreted as "restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party". Also, the Vienna Convention, on art. 27, establishes that "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty" (Brasil, 2009).
Therefore, both treaties and the national law may be applied, as long as they are more conducive. It means that the hierarchy is unimportant for conventionality control. Whenever there is a collision between the treaties and the internal law, an unconventionality analysis must take place in order to check which normative instrument, national or international, is more protective or less restrictive to the involved human right (pro persona principle). If the conclusion is that the international treaty accomplishes the pro persona principle, there is an unconventionality situation. On the other hand, if the internal acts are more protective or less restrictive, the construction must be according to the American Convention on Human Rights (minimum standards) and the jurisprudence of the Inter-American Court.

COLOMBIA: A CASE STUDY
Discussing the origins of the Colombian armed conflict, which is necessary for juridical comparisons, requires stating multiple variables, which range from the absence of authority of the State for violence control, territory dominance, taxation or justice, recurring political violence since the Thousand Day's War, that occurred at the end of the 19 th Century; to the assassination of a presidency candidate, which created lots of conflicts, in 1949 and 1958; and the revolutionary violence with insurgent organizations that started in the 1960's. In fact, apart from a specific occurrence during the 1950's, there have not been dictatorships.
The variety of positions: a) 1926 Supreme Court decision on property title requirement (Gallego, 2009) b) The absence of State authority for violence control c) The struggle for territory dominance, taxation or justice; d) Since 1946, violence against the agrarian reform (Guillén, 2006); e) Recurring political violence, as the murder of presidential candidate Jorge Eliécer Gaitán in 1948; f) Law 48 of 1968 (which legalized the paramilitary army or autodefensas).
The scenario of violence is complex: paramilitaries, private justice groups, militias, youth gangs, organized delinquency, drug trafficking armies and State security forces, with migration between them. The war against the guerrilla has been done with mercenary practices in the context of transitory alliances, with settlement and depopulation of territories (Uribe de Hincapié, 1997).
As accepted by Trejos Rosero (2013), the absence of a State enabled the occupation by private forces. The guerrillas took the place of the State to provide justice and goods, only supplied by the State in the urban centers (Trejos Rosero, 2013). In this scenario, since the 1980's, the paramilitares appeared to fight against the guerrillas financed by drug cartels, land owners, etc. (Valentine, 2003).
The estimation is that these armed conflicts caused the forced internal displacement of three million people, and the State, in this scenario, adopts a form of a State of Exception, in which the constitutional boundaries are fragile to control the public instruments against fundamental rights (Peco Yuste & Peral Fernández, 2005).
The expression "armed conflict" has received significant attention by the Colombian Constitutional Court: […] far from being understood under restrictive optics, in the limits of strictly military confrontations or concerning a specific group of actors, it has been interpreted in a broad meaning, which includes all of the complexity and factual and historical evolution of the Colombian armed conflict (2012).
Note that Colombia has been condemned in eleven paramilitary violence cases by the IACHR (Hassan, 2013 On the other hand, and in light of the provisions of the Convention on the Rights of the Child regarding recruitment, the Protocol is considered to be more protective to children and teenagers facing armed conflicts. The Constitutional Court of Colombia also decided relevant cases, like: a) C-203 2005: The issue of the criminal trial of child combatants (including demobilization administrative procedures) must be geared towards social readaptation, rehabilitative, educational and protective objectives; b) C-253A 2012: Children recruited by these outlaw organizations are victims according to international standards; c) C-781 2012: Defines the terms "victims" and "armed conflicts".
In the current peace process with the Fuerzas Armadas Revolucionarias de Colombia (FARC-EP), a priority has been set: the demobilization and reintegration of child soldiers, which will depend not only on a constant budget for efficient policies, but also on a special peace jurisdiction 5 , which must take into account the peculiar conditions for the development of children, including for responsibility purposes. The challenge of demobilization of all child soldiers will remain an issue until the peace agreement reaches other armed groups, beyond the FARC-EP. […] These minors will be accorded all the rights, benefits and allowances established for the victims of the conflict as well as those deriving from their process of reincorporation in the terms contemplated in this Final Agreement and priority will be given to family reunification wherever possible, and to final placement in homes in their original communities or others of a similar nature, whilst at all times taking into account the best interests of the child. (...).
Also, in 2016 the National Council for Reincorporation was created (Decree 2027). It sets the activities and the monitoring of the FARC-EP members' reincorporation process to the juridical life. It also has the duty of discussing special measures of care and protection for children and teenagers who left or fled the camps. 5 One may ask if the special jurisdiction be consistent with the precedents of the Colombian Constitutional Court, especially Judgment C-203 of 2005?