Practice Relating to Rule 136. Recruitment of Child Soldiers
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states under the heading “Right to Protection during Armed Conflict”:
International humanitarian law. In case of armed conflict, boys, girls and adolescents have the right not to be recruited and that the State respects and ensures compliance with the applicable norms of international humanitarian law.
The State shall adopt all possible measures to ensure that persons below the age of eighteen … are not recruited for military service under any circumstances.
In 2002, upon ratification of the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Guatemala declared:
Guatemala shall not permit the compulsory recruitment of persons under 18 years of age into its armed forces, and, in keeping with article 3, paragraph 4, of the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced shall be submitted at a later date.
In 2006, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Guatemala stated:
4. For 36 years, Guatemala was the scene of an internal armed conflict which ended with the signing of the Agreement on a Firm and Lasting Peace between the Government and the Unidad Revolucionaria Nacional Guatemalteca (URNG) in 1996. The participation of children and young persons in the war can thus be analysed by focusing on two periods, the first covering nearly four decades of internal armed conflict (1960–1996) and the second covering the period from the signing of the peace agreement to the present.
5. In this context, it must be acknowledged that during the war, forcible military recruitment was common practice both for the national army and the guerrilla groups that made up the Unidad Revolucionaria Nacional Guatemalteca. According to both the official report of the Commission for Historical Clarification, established under the peace agreements, and the reports of non-governmental organizations and indigenous movements, such as the National Coordinating Committee of Guatemalan Widows (CONAVIGUA), during the internal armed conflict some 45 per cent of the male population was recruited at some time by one or other of the parties to the conflict, and 20 per cent of those recruited were minors.
6. Before the peace agreement was signed, Guatemala’s domestic legislation did not include a law that afforded children comprehensive protection or outlawed their involvement in armed conflicts, even though the State was already a party to the Convention on the Rights of the Child, which it ratified in May 1990, and other international humanitarian law instruments. Nevertheless, the legislation in force at the time clearly specified that only those persons who had attained the age of majority, set at 18, could enlist in the army. In practice, however, the parties to the conflict, in contravention of the law, did use persons under the age of 18 in the war.
8. Unfortunately, there are no official records of the exact percentage of minors who participated in the war, either in the army or in guerrilla forces. Nevertheless, since it is the responsibility of the State to ensure that this practice is not allowed for any reason, as well as to enforce the law, one of the important measures which took immediate effect following the signing of the peace agreement was the express order issued by the then President of the Republic, Ramiro de León Carpio, in his capacity as commander-in-chief of the army, not to allow anyone at all under the age of 18 to enlist, even if they volunteered. In compliance with the order, the Minister of Defence gave orders to all military commanders in the country to enforce the presidential order. The provision has remained in force since then, and we can therefore guarantee that in Guatemala there is currently no provision for, or systematic practice of, enlisting anyone under the age of 18 in the army.
9. The Comprehensive Agreement on Human Rights, the first agreement signed between the Government and the Unidad Revolucionaria Nacional Guatemalteca in 1994, entered into force before the peace agreement was signed and established a framework for protection which included child protection measures, thereby demonstrating the Guatemalan Government’s commitment to ensuring that enlistment in the armed forces would be voluntary until a new law on military service was adopted.
Guatemala further stated: “In order to be admitted to the armed forces, Guatemalan men and women must produce their residence card, in order to prove that they have reached the minimum age for joining up, which is 18 years.”
Guatemala also stated:
Regarding the binding declaration to be made by all States parties to the Optional Protocol, on 30 April 2002, Guatemala made its declaration in the instrument ratifying the Optional Protocol, where it indicated that:
Guatemala shall not permit the compulsory recruitment of persons under 18 years of age into its armed forces, and in keeping with article 3, paragraph 4, of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the description of the safeguards adopted to ensure that such recruitment is not forced or coerced shall be submitted at a later date.
In 2007, in response to a list of issues raised by the Committee on the Rights of the Child relating to its consideration of the initial report of Guatemala under the Optional Protocol on the Involvement of Children in Armed Conflict, Guatemala stated in response to a question on whether it intends to include in the Criminal Code a provision that expressly prohibits the recruitment of children under 18 years:
To date no proposal has been drafted on the subject. At present the legal provisions adopted to criminalize the recruitment of children fall within the framework of the statutory offences set out in the Criminal Code, in article 209, “Abduction of minors”; article 418, “Abuse of power”; and article 423, “Decisions violating the Constitution”.