Practice Relating to Rule 136. Recruitment of Child Soldiers
Colombia’s Basic Military Manual (1995) provides, with respect to non-international armed conflicts in particular, that it is prohibited to “recruit and allow direct participation in hostilities of children under the age of 15”.
Colombia’s Law on Judicial Cooperation (1997) states that children under 18 may not be recruited into the armed forces, unless their parents give their consent. A five-year term of
imprisonment is imposed on anyone who recruits children under 18.
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone, who, in period of armed conflict, recruits minors under 18 years of age”.
Colombia’s Code on Children and Adolescents (2006) states:
Protection Rights. Children and adolescents shall be protected against: …
6. Wars and internal armed conflicts.
7. The recruitment and use of children by organized armed groups outside the law.
13. The worst forms of child labour, pursuant to the Convention 182 of the ILO [1999 Convention on the Worst Forms of Child Labour, which includes in its definition of worst forms of child labour the “forced or compulsory recruitment of children for use in armed conflict”].
The Code also states:
For all purposes under this law, the right-holders are all persons under 18 years of age. Without prejudice to article 34 of the Civil Code, children are understood to be persons under 12 years of age, and adolescents to be persons between 12 and 18 years of age.
Colombia’s Decree on Reparation to Victims of Armed Groups (2008) states:
The State shall recognize and pay directly to victims, or to the beneficiaries mentioned in this decree, … compensation in the form of the following sums depending on the fundamental rights violated:
- the illegal recruitment of minors:
Thirty legal monthly minimum wages.
The Decree also states:
CONSIDERING : …
That according to paragraph 1 of Article 15 of Law 418 of 1997, modified and extended by Laws 548 of 1999, 782 of 2002 and 1106 of 2006 [1997 Law on Judicial Cooperation, as amended] “victims of political violence are those persons belonging to the civilian population who suffer harm to their lives or serious deterioration of their personal integrity or their belongings due to terrorist attacks, fighting, kidnapping, attacks and massacres in the context of the internal armed conflict. Displaced persons are victims under the terms of article 1 of Law 387 of 1997”.
In 2004, in Constitutional Case No. C-172/04, the Criminal Chamber of Colombia’s Constitutional Court stated:
The recruitment of boys, girls and teenagers [for the purpose of participating in] the armed confrontations inter alia
violates their rights to personal integrity, life, liberty, free development of their personality, freedom of expression, education, health, family and recreation.
(footnote in original omitted)
In 2005, in the Constitutional Case No. C-203/05
, the Plenary Chamber of Colombia’s Constitutional Court stated: “There is no question that since they were recruited by unlawful armed groups – many of them by force or allegedly ‘voluntarily’ – children and adolescent combatants are victims of the crime of unlawful recruitment of minors.”
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens
status, … [include] the prohibition of child recruitment.
[footnote in original omitted]
In 2009, in the Constitutional Case No. C-240/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of Article 14 of the 1997 Law on Judicial Cooperation and Article 162 of the 2000 Penal Code, which concerned the recruitment of children and their forced participation in hostilities. Regarding the recruitment of children, the Court stated:
5. Conclusions on the international perspectives on the recruitment and use of children and adolescents in armed conflicts
5.2. With regard to international human rights law, the internationally reproached conducts in this area are the recruitment and use of persons under 18 years of age in hostilities by irregular armed groups and the recruitment and direct participation in hostilities of persons under 18 years of age by the armed forces of States ( Optional Protocol [on the Involvement of Children in Armed Conflict]).
Regarding the possible voluntary or forced recruitment of children younger than 18 years of age within the framework of international human rights law, it should be noted that the Optional Protocol only provides for the possibility of assessing its voluntary aspect when it concerns the recruitment of minors by the State and with safeguards. As regards other armed groups, it is emphasized that under no circumstances may they recruit or use persons under 18 years of age in hostilities, which means that even if the child or adolescent were voluntarily enlisted into these groups, his or her recruitment or use would be prohibited.
In view of the above, one must conclude that, independently of the terminology used under human rights law to indicate the conduct which must be punished under domestic law with regard to the recruitment and participation of minors in conflicts, according to the  Cape Town Principles, the objective of the international provisions on the matter and of the international community as a whole is to ensure that persons under 18 years of age are not part of any force or regular or irregular armed group, regardless of whether within the group they carry arms or not or whether their involvement was forced or voluntary, because the concept of “child soldier” is a broad concept. The intention is that the definitions cover the protection and guarantees of as many children as possible so that they may demobilize and reintegrate into society and that the prohibitions ensure the effectiveness of these objectives.
5.3. Under IHL, on the other hand, the recruitment and participation of persons under 15 years of age in armed conflicts is prohibited. Pursuant to [the 1977 Additional] Protocol II, the conduct prohibited for armed forces or groups is the recruitment and participation in hostilities, without distinguishing between direct and indirect participation. …
IHL makes no difference as to whether the recruitment is forced or voluntary, thus any recruitment is in general prohibited.
5.4. Under international criminal law, the conducts punishable as war crimes are the recruitment or enlistment of children under 15 years of age into armed forces or their use to actively participate in hostilities, whether these are armed forces or irregular armed groups.
… [T]o conclude, the  Rome Statute does not take into consideration whether the recruitment was forced or voluntary, nor takes into account the voluntary aspect of the recruitment of a minor as grounds for excluding the responsibility or the illegality of the conduct. Therefore, considering that it is a criminal law matter, the appropriate interpretation is that the simple recruitment, enlistment or use of persons under 15 years of age in hostilities constitutes the above-mentioned punishable conducts.
6. The Colombian legal framework on the protection of children who take part in the armed conflict
6.1.2. Regarding the recruitment and involvement of children in armed conflict, article 20 of the  Code on Children and Adolescents provides for … the rights of children and adolescents to be protected against: “7. the recruitment and use of children by organized armed groups outside the law” and “13. The worst forms of child labour pursuant to the [1999 Convention on the Worst Forms of Child Labour]”. …
6.2.1. Law 548 of 1999 [1997 Law on Judicial Cooperation, as amended in 1999] … enshrined in domestic law the prohibition of the enlistment of persons under 18 years of age for obligatory military service. In accordance with international guidelines, minors may not be recruited or associated with the military forces of the State.
6.2.3. The  Justice and Peace Law, Law 975 of 2005, provided that no legal benefits can be granted to those illegal groups that have recruited persons under 18 years of age, and that, instead, these groups shall have additional benefits if they hand in to the protection of the State the children and adolescents belonging to their ranks.
Indeed, according to judgment C-370 of 2006, not confessing to the crime of illegal recruitment of persons younger than 18 years of age … which is subsequently found to [have been committed], entails the loss of these benefits.
7.2.1. The reality of children involved in the conflict and the importance of punitive action by the State in this matter
126.96.36.199. After the Democratic Republic of the Congo, Rwanda and Myanmar, Colombia has the world’s fourth highest number of children involved in illegal armed groups.
In judgment C-203 of 2005 … this Court, following an exhaustive study on the situation of children and adolescents who are victims of armed conflict and who are recruited and used by irregular armed groups, reached the following conclusions on the tragedy that this represents for the countries that suffer this situation:
(iii) Child soldiers are enlisted into legal or illegal armed groups, whether by force or apparently on a “voluntary” basis. However, the genuinely voluntary association is exceptional. The international community and experts on the topic find that the adjective “voluntary” does not correspond to the material situation which leads minors to “decide” that they want to take part in an armed group. Indeed, the child’s option to join such groups is usually not a free decision. The decision to join the ranks obeys, in reality, economic, social, cultural and political pressures that leave no alternative to these children and their families … Judgment C-203 of 2005 expressly states that “the above-mentioned factors leave the Court in no doubt about the limited ‘voluntary’ aspect of the ‘decision’ by a minor to join armed groups outside the law”.
7.3. The charges brought by the petitioner] and the scope of the criminal provisions at stake
7.3.1. The petitioner argues … that the legislator incurred a legislative omission regarding article 14 … of Law 418 of 1997 [1997 Law on Judicial Cooperation] and article 162 of Law 599 of 2000 [2000 Penal Code] by not including, among the punishable acts, the use of minors in hostilities or armed actions and to condition this use on the obligatory nature of the involvement of children, thus not criminalizing the voluntary participation of children in armed groups. This omission, in his view, disregards the “constitutional block” on the matter and the rights of the child enshrined in article 44 [of the Constitution].
7.3.4. … [A]ccording to a grammatical interpretation of the provisions at stake … , in article 14 of Law 418 of 1997 [1997 Law on Judicial Cooperation], the punishable acts recognized by the legislator are: (i) the recruitment of children to join insurgent or self-defence groups; (ii) the inducement to join them; (iii) the admission of minors to these groups and (iv) their military training for this purpose.
Recruitment corresponds to the same conduct provided for in the above-mentioned international provisions. Inducement to join them implies carrying out acts of instigation or persuasion aimed at obtaining the association of the minor, without necessarily meaning their actual recruitment. Admission, on the other hand, implies accepting a minor into an armed group. Thus, this conduct … must be understood as the effective entry of children into insurgent or self-defence groups. Finally, military training implies qualifying the child for warlike activities.
… [W]ith regard to admission, although at first it might seem that it is conceptually different from the conduct of participation or use of children in a conflict as provided for under international law, the Chamber concludes that, on the contrary, in both cases – that is, in both domestic and international law – what is punished is that children serve (their use) or take part in these groups (their participation), regardless of the tasks they undertake.
Therefore, in order to ensure the best interests of the minor, the domestic legislator criminalized the recruitment of children and their inducement to join [the group], regardless of whether these conducts resulted from a voluntary decision by the minor or a forced action. … Moreover, according to domestic civil law, it is clear that minors are not capable of assuming obligations … with legal effects. Therefore, the will to be admitted or to join the group is not a ground for exempting the illegality [of the act], even less when this is not even provided for in the [criminal] provision …
7.3.5. Article 162 of Law 599 of 2000 – Criminal Code – establishes the punishable conducts as follows: (i) recruiting minors and (ii) forcing them to participate directly or indirectly to hostilities …
In view of the above, it is concluded that these criminal provisions, far from contradicting international provisions on the matter, ensure the criminalization of the conducts proscribed by the international community regarding the recruitment and use of minors in armed conflicts. Indeed, although the criminal provisions are not identical to those of IHL or international criminal law – just as these are not identical to each other – it is clear that the conducts that these international provisions seek to prevent in the context of an armed conflict are covered under domestic criminal law. This conclusion and interpretation is strengthened by the principle of incorporation of international human rights provisions [into domestic law] pursuant to article 2 of the current Criminal Code.
[footnote in original omitted; emphasis in original]
Regarding the concepts of “child soldier” and “recruitment”, the Court referred to the 1997 Cape Town Principles:
One of the relevant elements of this discussion [the symposium organized by UNICEF and the NGO Working Group on the 1989 Convention on the Rights of the Child, which resulted in the Cape Town Principles] was the technical characterization of the concept of “child soldier”. It was concluded that any person under 18 years of age who is part of any kind of regular or irregular armed force could be defined as such, regardless of the work they carry out, that is, whether they work as cooks, porters or messengers, etc. Girls recruited for sexual purposes or forced marriage are also included in this category. Thus, the definition is not limited to minors who carry or carried weapons. In turn, regarding the technical definition of recruitment
, in this Declaration [Cape Town Principles], it was found that the concept could include the compulsory
(military forces), forced or voluntary recruitment
of minors into legal or illegal armed groups.
[emphasis in original]
In 2010, in the El Iguano case, the Justice and Peace Chamber of Colombia’s High District Court of Bogotá convicted a member of the paramilitary group Autodefensas Unidas de Colombia (United Self-Defence Forces of Colombia) of several crimes committed against the civilian population. The Court stated:
To meet the objectives established by the commanders of the organization, that is, “to combat its natural enemy: the guerrillas” and their supposed collaborators or sympathizers and to carry out executions pursuant to the misnamed “social cleansing” policy, [members members of the United Self-Defence Forces of Colombia] resorted to certain criminal acts such as … the illegal recruitment of children … in the areas where they were present.
[footnote in original omitted]
Upon ratification of the 1989 Convention on the Rights of the Child, Colombia stated:
The age [for recruitment] shall be understood to be 18 years, given the fact that, under Colombian law, the minimum age for recruitment into the armed forces of personnel called for military service is 18 years.
In 2004, in its third periodic report to the Committee on the Rights of the Child, Colombia stated: “Act No. 418 of 1997, amended by Acts No. 548 of 1999, No. 642 of 2001 and No. 782 of 2002 and implemented through Decree No. 128 of 2003, prohibits the enlistment of persons under 18 years for military service.”
In 2006, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to Colombia’s third periodic report, Colombia stated:
[T]he national security forces do not enlist in their ranks anyone under the age of 18.
Concerning children and adolescents having links with outlawed armed groups, it must be pointed out that, in compliance with article 162 of the Colombian Criminal Code, the recruitment of minors is an offence.
In 2006, during the consideration of the third periodic report of Colombia before the Committee on the Rights of the Child, a representative of Colombia stated: “The recruitment of minors to the armed forces … [is] banned.”
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
Child victims of violence
143. To deal with the problem of violence against children, the Ministry of Defence and the Armed Forces High Command have been implementing the following preventive strategies. In Circular 151758 of September 7th 2004 the Commander of the Armed Forces ordered army commanders to issue orders and instructions to the various levels of command regarding the implementation of and strict compliance with existing rules and provisions on the treatment and handling of children who have become detached from illegal armed organizations either on their own free will or because they have been captured. In particular the Commander noted the obligation to comply with and to ensure the implementation of Article 44 of the Constitution, the  Convention on the Rights of the Child, the  Optional Protocol to the Convention on the Rights of the Child relating to the participation of children in armed conflicts, and [the 1977] Additional Protocol II to the  Geneva Convention[s].
144. In Permanent Directive No. 500-2 of 2005, the Commander of the Armed Forces also gave orders and instructions to his Second-in-Command and Chief of the General Staff of the Colombian Army, the Heads of Joint Integrated Action, the Heads of Joint Intelligence and Counterintelligence and the subordinate units of the Army, Navy and Air Force, for the conduct of activities which will contribute to putting an end to forced recruitment by illegal armed groups throughout Colombian territory.
In 2008, in its fourth periodic report to the Committee against Torture, Colombia stated:
The economic and social reintegration of demobilized combatants constitutes a major challenge for the State and for society as a whole. That challenge requires, inter alia
, the following measures: … formulating a policy for preventing the recruitment of children by the organized paramilitary armed groups.
In 2008, 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, Colombia stated:
III. General Measures of Implementation
56. … In [the] declaration [made by the Colombian Government upon its ratification of the Optional Protocol], the Government stated that persons under the age of 18 years are not called up for military service, nor are they accepted as volunteers in the armed forces of Colombia. The declaration reads as follows:
The military forces of Colombia, in application of the norms of international humanitarian law for the protection of the best interests of the child and in application of domestic legislation, do not recruit minors in age into their ranks, even if they have the consent of their parents.
[The Law on Judicial Cooperation (1997), as amended in 2001] stipulates that persons under 18 years of age shall not be recruited to perform military service. Students in the eleventh grade who are minors, in accordance with Act 48 of 1993, and who are selected to perform such service, shall defer their enlistment until they have reached age 18.
94. State policy prohibits the recruitment of minors.
97. The Colombian Family Welfare Institute (ICBF) is developing strategies to prevent children and adolescents from being mobilized by illegal organized armed groups. Its efforts in this area are based on the principle of comprehensive protection and focus on recognizing and guaranteeing human rights.
104. … [I]t is important to mention that Decree No. 4690 of 3 December 2007 established the Intersectoral Commission to Prevent the Recruitment and Use of Children, Adolescents and Youth by Illegal Groups. …
105. The goal of the policy to prevent the recruitment of children, adolescents and youth by illegal armed groups, which the Commission coordinates, is to strengthen national, departmental and municipal public institutions, reinforce and consolidate protection networks and family environments, and help to shift child-rearing patterns towards a culture of respect for children’s rights. The aim is to discharge the shared responsibility of the family, society and State to guarantee the human rights of children, adolescents and youth and to ensure the re-establishment of those rights when violated, the prevention of threats to, or violations of, those rights, and the design and implementation of public policies for children, adolescents and youth, pursuant to the Code on Children and Adolescents [(2006)] and the Youth Act.
112. Strategic line of action No. 5: Strengthening Social Policy Councils and working groups on the prevention of the recruitment of children by illegal armed groups. The protection of children’s rights, including their right to be protected against recruitment and use by illegal armed groups, is the obligation of the State as a whole. When this right is violated, it is the State’s duty to ensure the restoration of their rights, their social and economic reintegration, full reparation as victims of the offence of illegal recruitment, the prevention of their involvement in activities that violate their rights (including recruitment and use by illegal armed groups), and the initiation of a reconciliation process that will support their integration into their family and society. …
B. Legal precedents for the prohibition of the recruitment of persons under the age of 18
123. The Colombian armed forces, at the forefront of the implementation of standards of international humanitarian law and the promotion of the best interests of the child, pursuant to Act No. 418 of 1997 and Act No. 548 of 1999 [the Law on Judicial Cooperation (1997), as amended in 1999], under no circumstances recruit children under the age of 18 years into their ranks, even if the parents give their consent.
124. When the above-mentioned standards were issued, more than 818 persons under the age of 18 years were discharged from the armed forces. Thus, even before the entry into force of the Protocol for Colombia, there was no longer any person under the age of 18 years in the armed forces.
125. The precedents for this prohibition are summarized as follows:
(a) In Colombia, before and during the entry into force of the  Convention on the Rights of the Child, numerous efforts were undertaken to do away with the recruitment of children into the armed forces and to prevent their recruitment by illegal armed groups. In that context, Act No. 418 of 1997 [the Law on Judicial Cooperation (1997)] prohibiting the conscription of children under 18 years of age was promulgated by the State … , while voluntary recruitment … was prohibited by Act No. 548 of 1999 [which amended that law].
C. Non-recruitment of persons under 18 years of age in Colombia
126. In Colombia, the special addendum to article 98 of the Constitution sets the age of majority at 18 years.
127. Pursuant to article 216 of the Constitution and in accordance with Act No. 48 of 1993, military service is compulsory only for men aged 18 years or over. All Colombian males are required to have their military status determined upon reaching the age of majority at 18 years.
128. There is no legal, regulatory or constitutional provision for any exception whatsoever. Under no circumstance is a person under the age of 18 years recruited into the national armed forces …
129. Under article 93 of the Constitution [(1991)], international human rights treaties and agreements ratified by the Colombian Congress take precedence over domestic law even in a state of emergency. Furthermore, article 214, paragraph 2, of the Constitution provides that the rules of international humanitarian law shall be respected under such circumstances as well. This principle is also enshrined in article 3 of Act No. 137 of 1994, which regulates states of emergency in Colombia.
130. Accordingly, the Government does not recruit minors in situations of war with another nation or internal strife under any circumstance, despite the opportunity provided by the legislature to provisionally amend the ordinary statutes regulating compulsory military service, in accordance with article 30 of the Act. This is particularly the case in view of the reservation entered by the Colombian Government to article 38 of the Convention on the Rights of the Child, in which it broadened the definition of childhood to include children between the ages of 15 and 18 years.
131. In order for young men reporting for compulsory military service to prove that they have reached the age of majority (i.e., 18 years) and are therefore eligible for enlistment in the relevant military district, they must produce a number of documents, including their birth certificate and identity card. Failure to fulfil this obligation incurs disciplinary or criminal penalties, as appropriate.
G. Illegal armed groups
184. In the talks and rapprochement between the Colombian Government and ELN [National Liberation Army] that have occurred since September 2005, the Government has insisted that minors be released from the ranks of this illegal armed group.
185. The Government, particularly during the negotiations for a framework agreement with the group in 2007, was adamant that ELN suspend recruitment of children and make progress in discharging all children and adolescents from their ranks. Nevertheless, this was not accepted as part of the agreement by ELN.
186. Within the framework of the National Peace Council, the Government has emphasized that the release of children enlisted in illegal armed groups and the suspension of the recruitment of children are a priority. The Council has demanded that “ELN release all minors within its ranks and suspend the recruitment of minors. This was one of the points which the Government brought to the negotiation table but which ELN has so far refused to accept. The National Peace Council has demanded that this point be accepted […]”.
V. Prohibition and related matters
206. Article 162 of the Colombian Criminal Code (Act No. 599 of 2000) criminalizes the unlawful recruitment of persons under 18. This offence is also defined in Act No. 1106 of 2006, which extends Act No. 782 of 2002 and Act No. 418 of 1997 [the Law on Judicial Cooperation (1997), as amended in 2006], and article 20 of the Code on Children and Adolescents [(2006)], which provides that children and adolescents must be protected against recruitment and utilization by armed groups.
207. The recruitment of persons under 18 is punishable under Colombian law. According to article 162 of the Criminal Code, any person who “recruits persons below the age of 18 years or forces them to participate directly or indirectly in hostilities or armed action” is liable to a term of imprisonment of from 96 to 180 months and a fine of from 800 to 1,500 times the current minimum statutory monthly wage. …
208. This criminal offence is defined in such a way that the perpetrator may be either a member of an illegal armed group or a member of the military.
[footnotes in original omitted]
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
526. … [W]e should note the legislative steps taken to prevent recruitment … of children and adolescents by illegal organized armed groups … , through Decrees Nos. 395 and 4690 of 2007. The latter decree created the Inter-sectoral Commission for the prevention of recruitment … of children and adolescents by organized groups outside the law.
565. The programme of care for children demobilized from illegal organized armed groups conducted by the Colombian Welfare Institute follows three lines of action: preventing recruitment; specialized care; monitoring and supporting the demobilized.
568. As regards the bringing to trial of members of organized illegal armed groups, the Attorney General filed a complaint with the State Prosecutor’s Office for the crime of illegal recruitment of children under 18 years of age, but as yet no persons have been identified and individualized. The Ministerio Público requested the prosecuting authority that members of the AUC (United Self-Defence Forces) involved in the processes of truth, justice and reparation be investigated with respect to the involvement of children and adolescents in their groups, the place where they were recruited, and whether they have information about the recruiters.
569. … At present, the Attorney General is working with the media, other entities and international cooperation to ensure that the crime of unlawful recruitment is given due coverage and that those responsible are convicted.
Colombia also stated:
The Attorney General, in order to guarantee the rights of children demobilized from armed conflict and in light of the impending legal action by the Colombian State for the crime of rebellion, issued Directive No. 013 of 2004, which directed prosecutors to intervene in criminal proceedings brought against this population in order to move for their termination, since, according to international standards, children in these circumstances are not victimizers but victims of armed conflict, and should consequently be treated as such and made available to the ICBF for the restoration of their rights.
In 2010, Colombia’s National Council for Social and Economic Policy approved the Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups. This Policy states:
i. International Standards
The Colombian State has incorporated into its domestic legal order several international instruments for the protection of the rights of children and adolescents. Those instruments constitute part of the “Constitutional Block”, pursuant to article 93 of the 1991 Political Constitution. Table 1 includes the most relevant ones in chronological order. …
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts.
Approved by Law 171 of 1994. Entered into force on 15 February 1996.
… [T]he Protocol prohibits the recruitment of children under 15 years of age into armed forces or groups, as well as their participation in hostilities. [footnote: it should be noted that domestic legislation raises this prohibition to persons under 18 years of age and criminalizes their recruitment, as will be mentioned below.] …
Convention on the Rights of the Child, CRC, 1989.
Approved by Law 12 of 1991. Entered into force on 27 February 1991. Colombia made a reservation to paras. 2 and 3 of Article 38.
Article 38 reiterates the commitment of States Parties to respect the rules of IHL. It recalls the State’s obligation to … protect those who have not attained the age of 15 years from participating directly in hostilities; [and] to refrain from recruiting this population …
Convention 182 of the International Labor Organization, ILO, 1999, on the worst forms of child labour.
Approved by Law 704 of 2001. Entered into force on 21 November 2001.
Convention No. 182 was adopted by the ILO on 17 June 1999. Its Article 3(b) states that the recruitment and use of children is … one of the worst forms of child labour. …
Rome Statute of the International Criminal Court, ICC, 1998.
Signed by Colombia on 5 July 2002, approved by Law 724 of 2002, ratified on 5 August 2022 and entered into force on 1 November 2002.
… Paragraphs xxii and xxvi of Article 8 … state that any of the following acts are serious violations of the laws and customs applicable in international armed conflicts within the established framework of international law: … “Conscripting or enlisting children under the age of fifteen years into the national armed forces … ” (item xxvi).
ii. National Standards
a. Legal Developments
The 1991 Political Constitution enshrines the primacy of the rights of the child. It sets out the duty to fully protect them and the co-responsibility of the State, society and the family (articles 44 and 45) for their fulfilment and effectiveness. The most significant legal developments on this matter are presented, in chronological order, in Table 2. …
In short, this is a guarantee-based legislation … A legislation … which also requires the prevention of the recruitment and use of children.
Law 418 of 1997 “Establishing Certain Instruments for the Achievement of Peaceful Coexistence and the Efficacy of Justice, and Enacting Other Provisions”.
The Law was extended and modified by Laws 548 of 1999, 782 of 2002 and 1106 of 2006.
Main Provisions and Regulations
Law 418, in its Title 1, Chapter 2, establishes a number of provisions for the protection of children under 18 years of age from the effects of the armed conflict. Article 13 prohibits them from being incorporated into the ranks of the Armed Forces for military service. Article 14 … states that “anyone who recruits minors to join insurgent groups or self-defence groups, induces them to join or admits them in such groups, or who provides them with military training for that purpose, shall be punished with three to five years’ imprisonment”. …
Law 584 of 1999 … modified Article 13 of the Law 418 by eliminating the exception to the prohibition of military service by minors, based on the voluntary nature of the service and the parents’ authorization.
Law 728 of 2002 introduced major changes to Law 418 of 1997. … Children and adolescents who are recruited or used shall be considered, in the first place, as victims of violence. …
Law 599 of 2000 issuing the Penal Code
Main Provisions and Regulations
Article 162 of the Colombian Penal Code defines the crime of illegal recruitment as follows: “anyone who, during and in pursuance of an armed conflict, recruits minors under 18 years old or forces them to participate directly or indirectly in the hostilities or in armed actions shall be punished with imprisonment … ”. It should be noted that this provision punishes anyone who recruits or uses minors under 18 years of age. It thus extends by three years the provisions of the Rome Statute of the International Criminal Court and the rules of international humanitarian law, which establish 15 years as the minimum age.
Law 1098 of 2006 “Enacting the Code on Children and Adolescents”.
Main Provisions and Regulations
Article 20 provides that children and adolescents shall be protected from war and internal armed conflict; [and] their recruitment and use by organized armed groups outside the law …
b. Other Normative Developments
Colombia has other normative and administrative developments in the areas of the promotion, protection and enforcement of the rights of the child and the prevention of violations of these rights. Table 3 summarizes the main decrees, resolutions [and] directives … on the prevention of the recruitment and use of children and adolescents by organized armed groups outside the law and organized criminal groups.
Other Normative Developments
Decree No. 3043 of 2006, Creating a High Counsellor’s Office in the Administrative Department of the Presidency of the Republic.
Main Provisions or Subject Matters
Decree No. 3043 creates the HCR [high counsellor in the administrative department of the presidency of the republic] and sets out its functions as follows: “to support and advise the Colombian Family Welfare Institute in the formulation of policies and strategies related to preventing the recruitment … of minors from organized armed groups outside the law”. …
Decree No. 4690 of 2007, Creating the Intersectoral Commission for the Prevention of the Recruitment and Use of Children, Adolescents and Youths by Organized Groups Outside the Law.
Main Provisions or Subject Matters
Decree No. 4690 creates the Intersectoral Commission, whose purpose is to “articulate and guide the execution of actions to prevent the recruitment and use of children, adolescents and youths by organized armed groups outside the law”. …
Decree No. 1290 of 2008, Establishing a Programme for Individual Reparation through Administrative Procedures to Victims of Organized Armed Groups Outside the Law
Main Provisions or Subject Matters
… It recognizes the illegal recruitment of minors as a violation of rights giving rise to … compensation by the State (article 5).
Directives [binding on the national government and the institutions of the Executive]
No. 9 of 2009
Main Provisions or Subject Matters
For its part, directive 09/09 … orders the National Police to strengthen its activities to “identify, criminalize and arrest the leaders of the gangs and organizations that recruit and manipulate children and adolescents to commit criminal activities”.
The country has also had an important jurisprudential development with regard to the protection of the rights of children and adolescents. The Constitutional Court, in its ruling in Case No. C-203 of 2005
, considered this population to be victims of the crime of illegal recruitment, although this does not exempt them from criminal responsibility.
[footnotes in original omitted, emphasis in original]
The Policy further states: “Legally, any recruitment and use of children and adolescents is a crime and violates their rights. Moreover, it is [considered to be] forced even if the victims wanted
to be involved with armed groups.”
(emphasis in original)