Règle correspondante
Colombia
Practice Relating to Rule 137. Participation of Child Soldiers in Hostilities
Colombia’s Basic Military Manual (1995) provides, with respect to non-international armed conflicts in particular, that it is prohibited to “allow direct participation in hostilities of children under the age of 15”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 75.
Colombia’s Operational Law Manual (2009) states:
4. Procedures for the demobilization of minors [from armed groups]
A demobilized minor is a member of an illegal armed organization under the age of 18 who manifests his or her willingness to demobilize. Colombian legislation establishes a legal system for the protection of minors who decide to demobilize. Members of the National Security Forces must know, respect and promote this legal system. According to these rules, minors involved in an armed conflict are victims of it.
Minors who manifest their wish to disengage from the illegal armed group to which they belong must receive special treatment. Without exception, no demobilized minor may participate in intelligence activities, reconnaissance, patrols or any other kind of operational activity. 
Colombia, Manual de Derecho Operacional Manual FF.MM. 3-41 Público, Primera Edición 2009, Comando General de las Fuerzas Militares, aprobado por el Comandante General de las Fuerzas Armadas por Disposición Número 056, 7 December 2009, pp. 134–135.
[footnotes in original omitted]
Colombia’s Law on Judicial Cooperation (1997) states that children under 18 may not be sent to participate in actual military activities. 
Colombia, Law on Judicial Cooperation, 1997, Articles 13–14.
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone, who, in period of armed conflict, … forces [minors under 18 years of age] to participate directly or indirectly in the hostilities or armed operations”. 
Colombia, Penal Code, 2000, Article 162.
Colombia’s Code on Children and Adolescents (2006) states:
Protection Rights. Children and adolescents shall be protected against:
6. War and internal armed conflict.
7. Recruitment and use by organized armed groups outside the law.
13. The worst forms of child labour, pursuant to ILO Convention 182 [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”]. 
Colombia, Code on Children and Adolescents, 2006, Article 20.
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, Code on Children and Adolescents, 2006, Article 3.
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 against allowing children to take direct part in hostilities. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[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 Law on Judicial Cooperation (1997) and Article 162 of the Penal Code (2000), which concern the recruitment of children and their forced participation in hostilities. 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 ([2000] 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 [1997] 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. …
5.4. Under international criminal law, the conducts punishable as war crime 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 [1998] 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 [2006] 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]”.
6.2.4. On the other hand, Law 728 of 2002 “Extending the validity of Law 418 of 1997, as extended and modified by Law 548 of 1999, and modifying some of its provisions” [1997 Law on Judicial Cooperation] grants minors who take part in the armed conflict the status of victims of political violence.
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].
7.3.3. …
… [C]onsidering the elements of the crime of unlawful recruitment as provided for in article 14 of Law 418 of 1997 and article 162 of the Penal Code (Law 599 of 2000), the Court finds that the conduct prohibited under international rules concerning the use of children in armed conflict, that is, the direct or indirect participation of minors in hostilities or in armed actions even if voluntarily, corresponds perfectly to the hypotheses included in the above-mentioned criminal provisions.
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.
… [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 task they undertake.
In fact, according to the Royal Spanish Academy Dictionary … , to participate … means “to take part in a society or business”. To use, which is the other conduct punishable under international criminal law, means “to employ [someone] 
Square brackets in original.
on something”. To admit or to join armed groups … means … “to become part of a corporation”, which implies participation or action within [this corporation].
… 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. …
As for the direct or indirect participation or use of minors in the conflict, the Court finds that it is subsumed under the concept of being admitted to or joining irregular armed groups for the above-mentioned reasons. This joining means taking part in the activities of the group, without it being specified whether or not this has to be as a combatant. This actually expands the protection granted to children under international law as any minor who is part of an armed group is protected by this provision, regardless of the type of activity they undertake, that is whether they participate directly in the hostilities or act as couriers, messengers, cooks, etc.
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 this case, the provision punishes the same conduct in a qualified manner by imposing a heavier penalty on those who engage in it. … Thus, this criminal provision complements the above-mentioned one and aims to protect more strictly the forced participation of children in hostilities, whether direct or indirect.
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. 
Colombia, Constitutional Court, Constitutional Case No. C-240/09, Judgment, 1 April 2009, §§ 5.2–5.4, 6.1.2, 6.2.4, 7.3.1 and 7.3.3–7.3.5.
[footnote in original omitted; emphasis in original]
Regarding the concepts of “child soldier” and “direct participation in hostilities”, the Court made reference to the 1997 Cape Town Principles as follows:
4.1.4. …
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.…
4.1.6. … In a document entitled “Guide to the Optional Protocol on the Involvement of Children in Armed Conflict”, UNICEF acknowledges the following regarding the interpretation of the concept of “direct participation in the hostilities”:
And while the phrase “direct part in hostilities” was agreed upon and included in the final text, the Optional Protocol and its travaux préparatoires (preparatory documents) do not provide guidance on the definition of “direct part in hostilities,” nor do they define the difference between “direct” and “indirect” participation.
Direct participation may be interpreted to encompass not only active participation in combat but also military activities and direct support functions. These functions might include scouting, spying, sabotage and acting as decoys, couriers, porters, cooks or assistants at military checkpoints. They might also include use of girls for sexual purposes or in forced marriages.
This broader definition of child soldiering is reflected in the definition of a “child soldier” contained in the ‘Cape Town Principles’, which are used to prevent the use of child soldiers as well as for disarmament, demobilization and reintegration. This definition is for programmatic purposes and is not a legal definition. The Cape Town Principles, adopted at an international conference on child soldiers held in South Africa in 1997, have been widely accepted by child protection agencies, non-governmental organizations and United Nations agencies, including UNICEF and the World Bank.
The definition of ‘child soldier’ that was adopted reads: (…) Thus, ‘child soldier’ does not only refer to a child who is carrying or has carried weapons. The definition is intentionally broad so as to extend protection to as many children as possible and to ensure their inclusion in demobilization and reintegration programmes.
In this context, it is interesting to note that the travaux préparatoires of the [1998] Rome Statute of the International Criminal Court also provide a broad interpretation of the participation of children in hostilities. 
Colombia, Constitutional Court, Constitutional Case No. C-240/09, Judgment, 1 April 2009, §§ 4.1.4 and 4.1.6.
[footnotes in original omitted; emphasis in original]
Upon signature of the 1989 Convention on the Rights of the Child, Colombia stated: “It would have been preferable to fix [the age for taking part in armed conflicts] at 18 years in accordance with the principles and norms prevailing in various regions and countries, including Colombia.” 
Colombia, Declaration made upon signature of the Convention on the Rights of the Child, 26 January 1990, reprinted in UN Doc. CRC/C/2/Rev.4, 28 July 1995, p. 15.
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:
IV. Prevention
112. … 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. …
A. Definition of direct participation in hostilities
121. Direct participation in hostilities is defined in international law. This concept should be considered in the light of the constitutional corpus (art. 93 of the 1991 Constitution) and Act No. 5 of 1960, by which Colombia ratified the Final Act and the Conventions adopted at the Diplomatic Conference of Geneva on 12 August 1949. It is further developed in Act No. 171 of 1994, by which Colombia approved the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted in Geneva on 8 June 1977.
122. Colombian legislation does not explicitly define direct participation in hostilities, nor does the jurisprudence of the Constitutional Court (decisions C-511 of 1994, SU-200 of 1997, C-339 of 1998, C-340 of 1998 and C-456 of 2002). However, at the national level the term has been used in accordance with the Convention on the Rights of the Child and the Optional Protocol.
H. Dissemination of the Optional Protocol
190. The Ministry of Defence … issued Directive No. 15 of 2007 in order to ensure that children released from illegal organizations do not become involved in military operations in any way …
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 [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. … 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. In addition to the enlistment or recruitment of a child in government armed forces or in illegal armed groups, it is also a punishable offence to force children to participate in attacks or gather intelligence for conveying orders, transport weapons or supplies or cause damage to any property for military purposes.
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. The prohibition is also quite extensive, inasmuch as it applies not only to the act of recruitment, but also to the act of forcing minors to participate directly or indirectly in hostilities or armed action. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 112, 121–122, 190 and 206–208.
[footnotes in original omitted]
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. …
Table 1
International Standards
International Standard
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.
Main Provisions
… [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.] …
International Standard
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.
Main Provisions
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; …
International Standard
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.
Main Provisions
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. …
International Standard
Optional Protocol to the Convention on the Rights of the Child.
Signed on 6 September 2002.
Approved by Law 833 of 2003, declared enforceable by the Constitutional Court judgment C-172 and issued by Decree 3966 of 2005.
Main Provisions
… It provides that States Parties shall take all measures to prevent the participation of children under 18 years of age in armed confrontations.
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.
Table 2
Legal Developments
Legislative Standard
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 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. …
Legislative Standard
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.
Legislative Standard
Law 1098 of 2006 “Enacting the Code on Children and Adolescents”.
Main Provisions and Regulations
Article 20 provides that children and adolescents are protected from wars and internal armed conflict; [and] from their recruitment and use by organized armed groups outside the law …
The Code … extends the application of the principle of discretionary prosecution to those proceedings against adolescents as participants in crimes committed by armed groups outside the law (article 175). Finally, article 176 prohibits the questioning of children and adolescents and their use in intelligence activities by law enforcement authorities.
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.
Table 3
Other Normative Developments
Decrees
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”. …
Directives [binding on the national government and the institutions of the Executive]
Ministry of Defence
D. No. 30743 of 2007
D. No. 048 of 2008
Main Provisions or Subject Matters
[Directive No.] 30743 prohibits use of children in intelligence activities by members of the Armed Forces. [Directive No.] 048 … gives instructions that children are not to be used [in hostilities] …
Presidential Directive
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, … stated that the use of minors in actions by armed groups outside the law constitutes a crime according to the international rules on the matter. 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups, CONPES Document No. 3673, 19 July 2010, pp. 7–11 and 13–19.
[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.” 
Colombia, National Planning Department, National Council for Social and Economic Policy, Policy for the Prevention of Recruitment and Use of Children and Adolescents by Organized Armed Groups Outside the Law and Organized Criminal Groups, CONPES Document No. 3673, 19 July 2010, p. 81.
(emphasis in original)