Norma relacionada
Colombia
Practice Relating to Rule 135. Children
Section E. Rehabilitation and reintegration of former child soldiers
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 armed organization outside of the law 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.
Once the minor presents himself or herself to a military unit and expresses his or her intention to leave the illegal armed group, the minor must be physically handed over to the Colombian Family Welfare Institute (ICBF) … at the latest within 36 hours of his or her disengagement so that he or she may receive the appropriate protection and specialized comprehensive care. 
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 Code on Children and Adolescents (2006) states:
The Principle of Discretionary Prosecution in proceedings regarding adolescents who participated in crimes committed by armed groups outside the law. The Office of the Attorney General may renounce a criminal prosecution in cases where adolescents, under any conditions, were part of armed groups outside of the law, or participated directly or indirectly in hostilities or armed actions or in crimes committed by armed groups outside the law when:
(1) It is established that the adolescent’s decision was based on the social, economic and cultural conditions of his or her environment, which led him or her to consider membership of an armed group operating outside the law to be more valuable.
(2) It is established that the situation of social, economic and cultural marginalization did not give the adolescent alternatives to develop his or her personality.
(3) It is established that the adolescent was not in a position to direct his or her efforts towards discovering other forms of social participation.
(4) [The adolescent’s participation was] due to force, threat, coercion or constraint.
Adolescents who disengage from illegal armed groups shall be referred to the specialized care programme of the Colombian Family Welfare Institute for children and adolescents disengaged from irregular armed groups.
Paragraph. The principle of discretionary prosecution shall not be applied to acts which might constitute grave breaches of international humanitarian law, crimes against humanity or genocide pursuant to the [1998] Rome Statute. 
Colombia, Code on Children and Adolescents, 2006, Article 175.
[emphasis in original]
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 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
The legal and institutional response to the problem of demobilising underage combatants should be geared towards resocialization, rehabilitation, education and protection. This conclusion is based both on international and constitutional sources: (i) On one hand, it is a State obligation to promote the best interests of the child as well as the special protection and fundamental rights of minors, in their capacity as particularly vulnerable victims of the armed conflict and a war crime [of recruiting children into the armed forces or armed groups]. (ii) On the other hand, both Article 39 of the Convention on the Rights of the Child and its Optional Protocol as well as the various provisions in Article 3 common to the [1949] Geneva Conventions and in their [1977] Additional Protocol II bind the State to implement programmes aimed at resocializing, rehabilitating, educating and protecting minors that have been affected by the armed conflict, thus promoting the eventual reincorporation of such minors into an ordinary civilian life in their communities of origin. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 6.2.
The Court also held:
The mere participation of a child or adolescent in acts of violence committed by underage combatants will necessarily have grave psychological and social effects that demand an especially strong response from the State in terms of protection and rehabilitation, an objective to which determining the criminal responsibility of each minor and confronting the minor with the facts can contribute as well as the full implementation of the different steps of the process of reconciliation with the community, the society and the State. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 6.4.3; see also § 8.1.
In 2004, in its third periodic report to the Committee on the Rights of the Child, Colombia stated:
586. In dealing with the armed conflict situation, the Government conducts, since 1999, intersectoral programmes for the disengagement of minors from the conflict and their social reintegration. The main goal is to provide disengaged minors with support for reorganizing their lives.
587. The Assistance programme for armed-conflict victims is mainly implemented through specialized centres, where the young people in question receive assistance and advice for social rehabilitation. The following modules are used:
588. Transition homes: This programme’s current first phase consists in providing assistance to boys and girls by court decision or Family Ombudsman decision; and conducting psychological and social assessments to determine host conditions in view of socialization.
589. Specialized assistance centres: The goal of this initiative is the restoration of infringed human rights through comprehensive (vocational, sport, academic, cultural and employment-related areas) assistance for minors. Minors undergo medical and psychological assessments in view of arrangements for embarking on the life plan to lead and facilitating their social inclusion.
590. Houses of the adolescent: This initiative aims at facilitating the socialization process, thereby contributing to social integration.
591. Social and family-related assistance measures can be classified under two headings: Home mentoring, a phase in which disengaged minors and other young people – after receiving assistance in transition homes, specialized assistance centres or houses of the adolescent – live in a foster family environment when it is impossible to return to their own families; and Family reintegration, a phase in which the children or young people concerned – subject to a diagnostic assessment by the establishment – return to their home of origin or stay with relatives.
592. Assistance programmes focus on family, social, cultural and economic integration. Generally speaking, priority is given to the safety of the disengaged person and his or her family. Family integration requires identifying a suitable family for the child or adolescent to facilitate basic contact in view of further reintegration. Conceptually and methodologically, orientation aims to respond appropriately to the phenomenon by strengthening family and community networks in order to ensure support that meets the particular needs of the given population group. 
Colombia, Third periodic report to the Committee on the Rights of the Child, 24 August 2005, UN Doc. CRC/C/Add.129, submitted 28 June 2004, §§ 586–592.
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
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 [1989] Convention on the Rights of the Child, the [2000] 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 [1949] Geneva Convention[s].
145. Furthermore, the detachment of children is a government priority to be undertaken in accordance with the law, jurisprudence and international treaties. It is for this reason that the Programme of Humanitarian Care for the Demobilized is being introduced in order to provide a real alternative so that children can find a way out of these groups and can be taken care of by the Colombian Family Welfare Institute (Instituto Colombiano de Bienestar Familiar: ICBF). Between June 2006 and May 2007 alone, 960 children were detached from illegal armed groups and were dealt with by the ICBF.
146. The Ministry of Defence also issued Directive No. 15 of 2007 to ensure that children detached from illegal armed organizations do not in any circumstances participate in military operations. And in December 2007 the Commander of the Armed Forces issued Permanent Directive 137 on “Integrated Procedures for the Protection of Minors Involved with Illegal Armed Groups”. 
Colombia, Ministry of National Defence, Comprehensive Human Rights and IHL Policy, January 2008, §§ 143 and 145–146.
In 2008, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
67. The Family Welfare Service seeks to protect children in need through ongoing activities to provide preventative and special care. ICBF [Colombian Family Welfare Institute] heads up a special programme to provide care for children and adolescents extricated from illegal armed groups.
68. Under article 2 of Decree No. 3043 of 2006, the High Council for the Social and Economic Reintegration of Armed Insurgents has, among other responsibilities, the duty to:
(a) Support and advise the ICBF in defining policies and strategies to prevent the recruitment of minors by illegal armed groups, to extricate them from such groups and to reintegrate them into society; and
(b) Coordinate, follow-up and evaluate the actions of State bodies which carry out activities or play a role in facilitating the reintegration of children and adolescents who have been extricated from illegal armed groups … either individually or as a group.
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 … and the initiation of a reconciliation process that will support their integration into their family and society …
117. … Reparation for child victims of violence. Objective: Promoting the reporting of cases of recruitment and reparation for victims. This work has been undertaken by the technical secretariat of the Intersectoral Commission and Fundación Social with financial support from the IOM [International Organization for Migration] and expert assistance from the technical secretariat. The aim is to develop a component on full reparation and reconciliation as part of the ICBF special care programme for demobilized children. This programme seeks to prepare adolescents to work with their family and the community to achieve genuine reconciliation, to become reintegrated into society and thus to avoid becoming victims again, once they have completed the special care programme.
Peace process between the Colombian Government and self-defence groups
175. In the course of the peace process conducted with now-demobilized self-defence groups and during the period of collective demobilization provided for under the Santa Fe de Ralito Agreement, a group of 307 minors were released from armed groups and placed under the protection of ICBF, the competent State body. A further 84 children who had been handed over by the self-defence groups before the demobilization process began were also incorporated into the programmes offered by ICBF.
Active participants in the reintegration process aged between 18 and 23 years when the self-defence groups demobilized
183. Justice and Peace Act No. 975 of 2005 [Justice and Peace Law (2005)] prescribes measures specifically designed to protect the fundamental rights of children and adolescents. Accordingly, article 10, paragraph 3, of the Act stipulates that, to be eligible as candidates for the benefits accorded by the Act, members of armed groups must hand over all recruited children to ICBF. This has to be verified by the judge when sentencing demobilized paramilitaries.
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 …
195. The national police force, in the fulfilment of its specific role in the area of protection as mandated by the Constitution [(1991)], has created technical support and assistance mechanisms for schools attended by demobilized children in order to help them provide appropriate social services and psychological care.
VI. Protection, recovery and reintegration
224. … [I]n accordance with Act No. 782 of 2002, extended by Act No. 1106 of 2006, since the end of 1999 ICBF has been running a specialized programme for children and young people who have been demobilized from illegal armed groups.
225. As established in article 2 of Decree No. 3043 of 2006, the functions of the High Council for the Social and Economic Reintegration of Armed Insurgents include, inter alia: (a) supporting and advising ICBF in the definition of policies and strategies for preventing the recruitment of minors by illegal armed groups and for their demobilization and reintegration; and (b) coordinating, overseeing and evaluating the actions of State entities that carry out activities and functions designed to facilitate the reintegration of minors extricated from the conflict as well as adults who voluntarily demobilize, whether individually or in groups.
228. In addition to having all the rights embodied in Colombia’s Constitution [(1991)] and laws, children and adolescents demobilized from armed groups operating outside the law benefit from additional, specific forms of judicial protection as victims of unlawful recruitment, pursuant to article 162 of Act No. 599 of 2000 (the Criminal Code), Act No. 1106 of 2006 extending Act No. 782 of 2002 and Act No. 418 of 1997 [the Law on Judicial Cooperation (1997), as amended in 2006], and the Code on Children and Adolescents [(2006)], and as victims of violations of the right to be protected against one of the worst forms of child labour, in accordance with international human rights law, international humanitarian law, international labour law and decisions adopted by United Nations bodies. It should be emphasized that these children and adolescents are extricated by security forces, not arrested. Between 19 November 1999 and 30 June 2008, a total of 3,654 children and young people were assisted in this connection.
243. Children and young persons demobilized from illegal armed groups are brought under the ICB[F] protection programme. This programme provides comprehensive protection to these persons, who are acknowledged to be subjects of rights that must be guaranteed and respected.
244. As part of this comprehensive protection, support for the physical and psychological recovery and social reintegration of children and young persons demobilized from illegal armed groups is provided under the specialized ICBF programme by psychosocial experts who have been specifically trained for this purpose.
245. The support programme consists of four phases: identification and diagnosis, treatment, consolidation, and monitoring and follow-up. Its various components include health and nutrition, psychosocial support, education, culture and peaceful co-existence, and social, legal, family and management assistance.
260. Under the institutional model, services are provided in transit centres, specialized centres and juvenile centres and through the institutional network.
(a) Transition homes. These facilities carry out identification procedures, diagnosis of psycho-affective and family situations, and assessment of skills and state of health. These services constitute phase 1 of the model. Children stay in these institutions for about 45 days;
(b) Specialized care centres. These centres begin to implement the comprehensive, individual assistance plans that are drawn up on the basis of the diagnosis. These plans cover psychosocial support, school enrolment, training, and use of free time and constitute phase 2 of the model. Children stay in these centres for about one year;
(c) Juvenile centres. In these institutions, young people begin to assume joint responsibility and to enjoy greater autonomy as a continuing part of their integration into school and society. This constitutes phase 3 of the model. Upon completion of this phase, they may be placed in the social and economic reintegration programme of the High Council for the Social and Economic Reintegration of Armed Insurgents or may return to their family, if it is safe for them to do so. Children stay in these facilities for about one year;
(d) Institutional network. Through this network, specialized services are provided to children and young people with drug abuse or psychiatric problems.
261. Strengthening and expanding the social/family model has been a particular focus of attention. This task constitutes one of the main goals of the ICBF action plan for this programme, as this option gives children and young people the opportunity to advance in the process of re-establishing their rights within a family environment. For this reason, the foster family and family-based support models have been strengthened, with additional support provided by means of the regional support unit strategy:
(a) Foster families. Under this model, a family selected and trained according to ICBF technical criteria voluntarily takes in a child or young person aged under 18 on a full-time basis. Placement with a family provides the emotionally supportive environment and comprehensive care that help guarantee and restore the child’s or young person’s rights;
(b) Family-based support system. This model was designed in response to the changing profile of the target population and is being developed through a pilot project under which support is provided to children and young people who are with their families or who, when it is safe to do so, have rejoined them. A comprehensive family care plan (referred to as a PLATINFA) is drawn up in conjunction with the families, who also receive temporary financial support to assist them in guaranteeing the restoration of the child’s rights and facilitate his or her reincorporation into the family and social milieu. 
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, §§ 67–68, 112, 117, 175, 183, 190, 195, 224–225, 228, 243–245 and 260–261.
[footnote in original omitted]
Colombia also stated:
217. The Constitutional Court of Colombia, in its decision C-203/05 [Constitutional Case No. C-203/05], stated that demobilized minors “are deemed victims (…) but that status does not exempt them per se from all criminal responsibility [and] (…) neither the Constitution [(1991)] nor international law are set aside when bringing demobilized minors to trial in order to determine their criminal liability”.
218. That being the case, adolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
219. In general, the procedures followed in the cases of adolescents between the ages of 14 and 18 who may have committed punishable acts in Colombia are designed to educate, rehabilitate and protect them, to take into account the difference between adolescents and adults, and to draw upon the specific services offered by the various bodies, competent authorities and programmes.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 175 of the Code on Children and Adolescents [(2006)]. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that:
(a) The adolescent’s decision that it was in his or her best interests to join an illegal armed group was based on the social, economic and cultural conditions of his or her environment;
(b) The adolescent’s social, economic or cultural marginalization was such that he or she had no other way to pursue his or her personal development;
(c) The adolescent was unable to seek out other forms of social participation;
(d) The adolescent joined or participated in such a group by force, threat, coercion or constraint. 
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, §§ 217–219 and 221.
[footnote in original omitted]
In a footnote quoting Article 175 of the 2006 Code on Children and Adolescents, Colombia also stated: “The principle of prosecutorial discretion shall not apply in cases that may involve grave breaches of international humanitarian law, crimes against humanity or genocide under the [1998] Rome Statute.” 
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, § 221, fn. 59.
In 2008, in its sixth periodic report to the Human Rights Committee, Colombia stated:
X. Article 24. Rights of children and measures to protect them
525. Along the same lines, [the Law on Judicial Cooperation (1997), as amended in 2006] directs the Colombian Family Welfare Institute [ICBF] to design and implement a special protection programme to respond to all cases of minors who have taken part in hostilities or have been victims of political violence under the “internal armed conflict”.
526. Similarly, we should note the legislative steps taken … to provide care and support to … [children] who have left … [organized armed] groups, through Decrees Nos. 395 and 4690 of 2007 …
559. Modalities of protection for the restoration of violated rights of children and adolescents offered by the ICBF. The Institute conducts programmes and services in keeping with its institutional responsibilities aimed at protecting and restoring the full exercise of the rights of children and adolescents under 18 years of age … victims or former members of organized illegal armed groups, in order to achieve their integration into the family, community and society.
564. Demobilized children and adolescents. In Colombia, children and young people disengaged from organized illegal armed groups are different from the adult demobilized population and have special characteristics. Therefore, the legal definition of victims of violence emphasizes the State and social obligations. Since 1999, a specialized programme has been designed with the aim of helping to consolidate a road map for life among children and adolescents disengaged from illegal armed groups, in the framework of safeguarding and restoring the Rights of the Child, building citizenship and democracy, with a gender perspective and a view to social integration and shared responsibility, stressing preparation for social and productive life.
565. The programme of care for children demobilized from illegal organized armed groups conducted by the Colombian [Family] Welfare Institute follows three lines of action: … specialized care; monitoring[;] and supporting the demobilized.
567. 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. The same directive called on the armed forces, in case of demobilization of children, to hand them over to the ICBF within a period not exceeding 36 hours. As a result, the termination of the investigation in more than 700 proceedings was achieved, with the direct involvement of family court attorneys. 
Colombia, Sixth periodic report to the Human Rights Committee, 2 June 2009, UN Doc. CCPR/C/COL/6, submitted 10 December 2008, §§ 525–526, 559, 564–565 and 567.
[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. The 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
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
… Its article 39 … provides for the obligation to adopt measures to promote the recovery and reintegration of child victims of armed conflicts, “in an environment which fosters the health, self-respect and dignity of the child”.
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, it is guarantee-based legislation … A law which … includes commitments to provide appropriate care to those children who have been disengaged from armed groups and to restore their rights …
Table 2
Legal Developments
Legislative Standard
Law 1098 of 2006 “Enacting the Code on Children and Adolescents”.
Main Provisions and Regulations
The Code … extends the application of the principle of discretionary prosecution to 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. 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 … the disengagement and reintegration of minors from organized armed groups outside the law”. 
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. 7–10 and 13–17.
[footnotes in original omitted; emphasis in original]